Borders case may head for constitutional crisis

The Kuala Lumpur Syariah High Court today ordered a stay of proceedings in the prosecution of Borders bookstore manager Nik Raina Nik Abdul Aziz.

This is pending an appeal by the Federal Territories Islamic Department (Jawi) before the Court of Appeal on the March 22 decision of the High Court in Kuala Lumpur ordering Jawi to withdraw the charge against Nik Raina for distributing the book, Allah, Liberty and Love.

Earlier, Jawi prosecutor Che Saufi Che Hussin told Syariah High Court judge Abdul Walid Abu Hassan that they respected the civil court's decision but left it to the Syariah High Court, under Section 103 of the Syariah Criminal Proceedings Act, to decide on withdrawing the charge against Nik Raina.

Che Saufi also told the court they are appealing the civil court's decision but have yet to obtain a date.

Another prosecutor from Jawi, Zainor Rashid Hassim, then reminded the court about Article 121 (1) (a) of the Federal Constitution, saying it raises conflicting jurisdiction between the syariah and civil courts.

However, Nik Raina's lawyer Rosli Dahlan (right) said Jawi's application for a stay on the civil court’s decision, pending its appeal, has not been allowed and that the Syariah High Court could use its jurisdiction under Section 96 of the same Act to allow the withdrawal.

“Hence the court has jurisdiction to withdraw the charge on application from the prosecutor,” Rosli said.

While the different jurisdictions of the syariah court and civil courts are respected and recognised, he added, he pleaded for the court to be magnanimous, as the application was before this court and it had the authority to decide on it.

Normally, when the prosecution withdraws a charge in the civil court, the syariah court would withdraw the same charge before it without much hassle.

However, syariah judge Abdul Walid noted that the matter had not gone to trial to determine whether Nik Raina was guilty of distributing the book when she made the High Court application challenging the charge.

Hence, he said, the Syariah High Court would await the appeal process in the civil court to determine whether Section 13 of the Syariah Offences Act, under which Nik Raina is charged, is proper or not.

“The court also notes there is a challenge to the charge made by the chief syariah prosecutor. Hence, the  court is concerned that in the future, when there is a person charged with khalwat (close proximity), it would also be subject to judicial review as it may infringe on a person's right,” judge Abdul Walid said.

'Heading for a constitutional crisis'

Outside the court, Rosli noted the matter may head to a constitutional crisis and maintained that this was something he wanted averted, with the Syariah High Court agreeing to drop the charge.

“What the judge said about those committing khalwat going to civil court to challenge the charge is purely speculative. I have told the court that it can use its powers under Section 96 of the Act to drop the charge on an application by the prosecutor,” he said.

“We respect the jurisdiction of the syariah court, but what we are objecting to is the prosecution's conduct in the whole matter in charging Nik Raina. They say that they are willing to withdraw but left it to the court to decide,” Rosli said.

He said there should not be any conflict of jurisdiction if this was handled in a proper way, since the civil court order is not against the syariah court but on the process taken by Jawi to land Nik Raina in court. 

The lawyer said it has to be remembered that no plea was recorded when Nik Raina was charged last year. 

Rosli said he will seek further instructions from his client on whether to appeal today's Syariah High Court decision or to wait for the appeal proper in the civil Court of Appeal. 

Also present was Nik Raina and Borders general manager (Operations) Stephen Fung.

'Prosecution unconstitutional'

Nik Raina was charged with distributing the book at the Borders Mid-Valley Megamall outlet on May 22 last year. However, the book,Allah, Liberty and Love by Canadian author Irshad Manji, was only banned by the Malaysian authorities on May 29.

In allowing the application for judicial review filed by Borders and Nik Raina, High Court judge Justice Zaleha Yusof agreed that Jawi's action of raiding, seizing copies of the book and charging her predated the banning of the book and this constituted retrospective enforcement.

The judge ruled Jawi's action to be in violation of Article 7 of the Federal Constitution, which states that no citizen can be punished under a law before it is enacted.

Justice Zaleha further allowed an order for Jawi to quash the charge against Nik Raina.

Jawi also failed in its application for a stay of the civil court order.