November 23, 2012
Borders files application to quiz three Ministers
by Hafiz Yatim@http://www.malaysiakini.com
Borders filed an application at the Kuala Lumpur High Court yesteday to quiz two Ministers and a Deputy Minister on the Federal Territory Islamic Affairs Department’s (JAWI) raid of its Midvalley store and seizure of Irshad Manji’s books on May 23.
Documents sighted by Malaysiakini named Home Minister Hishammuddin Hussein, Minister in the Prime Minister’s Department (for Islamic Affairs) Jamil Khir Baharom and his Deputy Mashitah Ibrahim as those to be cross-examined by Borders’ counsel.
It cited their conflicting statements in their affidavits, and what was reported in the press as the reasons for the application.JAWI’s action is said to be causing problems in the administration of justice.
Berjaya Books Sdn Bhd which operates the Borders’ chain, along with its operations general manager Stephen Fung Wye Kong and store manager Nik Raina Nik Abdul Aziz (above with Fung), had filed a judicial review application last June.
The review is to challenge JAWI’s action in prosecuting Nik Raina for distributing the book Allah, Liberty and Love, authored by the controversial Canadian author before its ban.
In their application, the lawyers representing Borders want Hishammuddin, Jamil and Mashitah to show various documents that formed the basis for the ban decision on the controversial book only six days later on May 29.
Ironically, the application to cross-examine Hishammuddin and the others was made by the firm Lee Hishammuddin Allen and Gledhill, a firm where the Home Minister was a partner before entering politics.
Supported by COO’s affidavit
The company’s chief operating officer Yau Su Peng in her supporting affidavit to the notice, said six paragraphs in Hishammuddin’s affidavit dated September 5, are questionable and challenged by hers and Nik Raina’s affidavit in reply.
“I am advised by my solicitors that this cross-examination is needed as the Home Minister does not seem to have personal knowledge of the things which he had sworn to or pleaded in his affidavit, giving rise to conflicts,” said Yau in her affidavit.
“The Home Minister said Nik Raina’s charge came within the ambit of the Syariah Court and not civil courts. However, in applications filed by Nik Raina before the Syariah court to suspend and strike out the charge, the judge noted this judicial review application had to be disposed of first.”
A syarie prosecutor, she said in her affidavit, had objected to Nik Raina’s application for a stay, so a Syariah Court was not a suitable place for it to be heard on the grounds that a judicial review application is already pending in the civil courts.
Yau (left) also said the Home Minister had also misconstrued the judicial review application in stating that they want to challenge the legality of the book’s contents against Syariah law, whereas their application is to question JAWI’s action to prosecute Nik Raina when the book had yet to be banned.
“Hence there is a need to cross-examine to determine whether the Home Minister had understood the facts he had pleaded in his affidavit, as they seem to contradict that of the Syariah judge’s and the prosecutor’s when Hisham said JAWI were able to take action separately other than that of his ministry in this raid.
Jamil, Mashitah blamed Home Ministry
“Furthermore, Jamil Khir and Mashitah had reacted and blamed the Home Ministry in an English daily for its tardiness in prohibiting the book (before the raid).”
Jamil Khir had defended JAWI’s action and will answer accordingly in court. Mashitah was quoted as saying that her department had advised the Home Ministry that the book was considered unIslamic.
“The Deputy Minister was also reported to have said in June that Borders had not only to deal with Jawi but also the Home Ministry,” said Yau.
The COO added that Hishammuddin’s affidavit that Jawi can seize the books without the ban order was merely a cover-up to protect the former. The fact was, Yau said the ban was gazetted only after the incident and did not precede it.
She also referred to the Home Minister’s statement that Jawi can take action on its own separately from the Home Ministry’s powers under the Publications and Printing Presses Act 1984 that conflicted with other ministers’ stand.
She then quoted Health Minister Liow Tiong Lai as saying on the issue that a country cannot have two parallel criminal justice systems dealing with the same offence as it will create a lot of uncertainty.
“Former premier Dr Mahathir Mohamad also commented that “the book was not banned at the time of the raid but action was taken against the owner. This is wrong in the eyes of the law,” she quoted the former premier.
The conflicting statements resulted in Yau’s application for Hishammuddin, Jamil Khir and Mashitah to be questioned by Borders.