Borders-Nik Raina Case: Home Minister and JAWI differ


October 23, 2012

Borders-Nik Raina Case: Home Minister and JAWI differ

by Hafiz Yatim(10-22-12)@http://www.malaysiakini.com

While Home Minister Hishammuddin Hussein says the Federal Territory Islamic Department (JAWI) has jurisdiction to act against Borders bookstore manager Nik Raina Nik Abdul Aziz, an affidavit filed in the Syariah High Court by a prosecutor with JAWI is raising eyebrows.The JAWI prosecutor, Che Saupi Che Husin, in his Oct 3 affidavit opposes Nik Raina’s application to the High Court for a stay of proceedings and striking out of the charge against her in the Syariah High Court for distributing the book, ‘Allah, Liberty and Love’, at the Borders premises at MidValley Megamall before the Home Ministry officially banned the book six days later.

Nik Raina’s application to the Syariah High Court was filed on Sept 18 and her action was taken after the JAWI chief prosecutor, Ibrahim Deris, told the media that he was not bound by the Court of Appeal in Putrajaya ordering the suspension of the proceedings against Nik Raina and Borders until the disposal of their judicial review application by the High Court.

Che Saupi in his affidavit before the Federal Territory Syariah High Court, which was sighted by Malaysiakini, said the same cause of action had been filed for judicial review before the Civil High Court in Kuala Lumpur and it was therefore not wise for Nik Raina’s application to be heard by the Syariah Court now.

In other words, Che Saupi agreed that the matter should be ventilated in the civil court first, thereby contrasting with Hishammuddin’s September 5 affidavit, in reply to the judicial review application to the High Court by Borders and Nik Raina, that although there was no prohibition order on the day the book was confiscated, Jawi was empowered to do so.

The conflicting and surprising reply by the Home Minister had also prompted Berjaya Books Sdn Bhd Chief Operating Officer Yau Su Peng (right) to file an affidavit in reply to Hishammuddin’s affidavit, seeking for the Minister to be cross-examined in court.

Berjaya Books, which runs the Borders bookstore chain, claims that Hishammuddin had reneged on his constitutional duties as a Federal minister and wants him to explain in court the laws relating to publications and the existing governmental practice with regard to enforcement action on publications.

When the matter came-up for hearing before the Kuala Lumpur High Court (Appellate and Special Powers Division) today, the Home Minister sought more time to reply to Yau’s affidavit.

Although Yau filed her application on September 26, there has been no reply from Hishammuddin till today. Following this, the matter was put off to grant the Home Minister more time to reply.

Nik Raina: Res-judicata not applicable

While Che Saupi had raised the issue of res-judicata, that the matter had already been judged, Nik Raina(left) in her affidavit in reply dated October 17 said her case had yet to be decided as the High Court had fixed it for hearing today.

“Hence, the doctrine of res-judicata is not applicable as the action at the Civil High Court is a judicial review and the Syariah case is a criminal charge against me. The matter to be decided by the High Court is the validity of JAWI’s action for the raid, investigation, arrest and charge.

“The matter before the Civil Court is larger than the Syariah Court case, namely whether Section 13 of the Syariah Offences (Federal Territory) Act 1997, is ultra vires the Federal Constitution as the powers to ban a book lies with the Home Ministry,” she said in her affidavit in reply.

“There is no verdict or decision made by the civil court yet on this issue and the JAWI prosecuting officer could have been mistaken or is confused for raising the doctrine,” Nik Raina says in her affidavit.

In her affidavit filed with the Syariah High Court, Nik Raina argued that matters pertaining to the interpretation of the federal constitution would best be dealt by the Civil Court as it has the jurisdiction, not the Syariah Court.

The application for striking out the case against her before the Syariah High Court is to be heard on November 19, while the matter before the Kuala Lumpur High Court has been fixed for January 22, 2013.

12 thoughts on “Borders-Nik Raina Case: Home Minister and JAWI differ

  1. The Borders-Nik Raina case has become a comedy. Now we read of the Home Minister and JAWI disagreeing over judicial procedures. Who is then the appropriate judicial body to rule on this case, Syariah or the High Court? I leave this to New York Judge Bean to provide the answer.

    As far as I am concerned this case is not under the purview of the Syariah Court. I agree with Nik Raina’s statement that “[T]he matter before the Civil Court is larger than the Syariah Court case, namely whether Section 13 of the Syariah Offences (Federal Territory) Act 1997, is ultra vires the Federal Constitution as the powers to ban a book lies with the Home Ministry.”

    This JAWI case should be thrown out.Let us not waste time. JAWI has erred. Period. It is still not too early for JAWI to withdraw the case.–Din Merican

  2. Isn’t the cliche, creeping Islamisation at work here? Since the eighties when Islam is
    politicised by none other than the Old Goat when he brought in Anwar Ibrahim in an attempt to checkmate PAS, the onslaught on secular nature of the country is relentless.

    But the jury is not out of the wood yet so let’s wait for the verdict of 19/11/12 and 22/01/2013 respectively and gauge the independence of the judiciary to uphold a point of law clearly enshrined in the Federal constitution.

  3. All goes back to Mahathir’s doing back in 1988. After May 13, 1969 that was the worst other period in Malaysia which we made the wrong decision.

  4. This apparent disagreement between the HM and JAWI as reported by Malaysiakini was brought about by having the case being dealt with in two separate courts. It appears that Malaysiakini is trying to assume the role of a “third court” by trying to emphasize the disagreement which may or may not be implied in the 2 separate affidavits, each meant for the separate courts. To avoid further pain, come November 19, JAWI may probably withdraw the case.

  5. Yes, i would echo that the three, Jawi, Jakim & Home minister, are Comedy of Errors….so how to run a Credible Govt ? Incredible !
    Instead of clarifying to make it clear & ” scientific ” about the state of law & order and all the due process & proceedures accompanying the very foundation of the Rule of Law, it has become more and more Obscure – uncertenties rears its ugly head in our double-track system – which is fundamentally flawed system
    Why, because of The Comedians who think that they are running a CIrcus…
    Govt should be wiser to have a re-look on this Double-track system in a Nation, any nation…

  6. “It appears that Malaysiakini is trying to assume the role of a “third court” by trying to emphasize the disagreement which may or may not be implied in the 2 separate affidavits, each meant for the separate courts” — Hussin

    What crap are you pedalling here??

    And all you could say about this case is that let’s hope JAWI withdraws the action? You don’t solve anything with that kind of attitude. One hopes that this case would go forward as there are a myriad of legal issues begging for some kind of resolution, the core among them being the constitutionaility of Article 121(1A) of the Federal Malaysian Constitution. This amendment steamrolled into law back in the mid ’80s without adequate time given for discussion has come back to haunt law makers. And here you are hoping that by withdrawing the action, it will go away? It will not go away. There will be another case, at another time and another defendant forced to answer charges which straddle the artibrarily imposed boundaries of syariah and civil law.

    In the past there have been a number of what would have been landmark cases but justices which had jurisdiction over those cases reacted to them like hot potatos, refusing to take jurisdiction and quickly send them on their way. In this case the initiative lies with the applicant for judicial review and the court cannot react to it like there never was. The hot potatos this time fell into their laps and they had nowhere to send them on.

  7. Unbelievable – this Nik Raina career has been subjected to circumstances related to some dumbass beauracracy (wanna ban a book; make a ruling then enforce it, not the other way around).

    Someone need to inform them, two errs put together dont make it a right.

  8. Referring to Mr. Bean’s remarks, the hot potatoes are presently on the lap of the Civil Court. The Syariah Court hasn’t got them yet. JAWI has the initiative on whether to pursue or drop the case on November 19 at the Syariah Court. If JAWI were to swallow whatever residual pride it still has and drop the case then, what else can Nik Raina’s party do except perhaps to claim for damages etc?

  9. “If JAWI were to swallow whatever residual pride it still has and drop the case then, what else can Nik Raina’s party do except perhaps to claim for damages etc?” — Hussin

    It is not about pride but the rule of law — something you’re still struggling to understand. I have not seen the pleading and will not be able to comment further on the issues. But basically if the court comes on the side of the applicant for judicial review and decides it is a matter for the civil courts and not the syariah courts, the latter will lose jurisdiction of the case. The AG may then want to re-file the case. It is not over for Nik Raina yet.

  10. Right now it appears to be a race to the finish line. The syariah court has jurisdiction of the case and is set to proceed. Depending on how the case goes, the issue of mootness may mean jurisdiction may remain with the syariah court especially when it makes no difference to the outcome.

  11. This is one case where JAWI or the government cannot afford to lose. Otherwise it will be a watershed and will forever subject the Syariah Court to a lower position than the Civil court. It may even signal a challenge to the whole Syariah legislation in Malaysia.

  12. If a decision is made by the Syariah Court and the accused is discharged without her defense being called, then double jeopardy prevents the accused from being charged all over again in the civil court for the same offence. The issue of which court has jurisdiction over such a case remains unresolved.

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