October 23, 2012
Borders-Nik Raina Case: Home Minister and JAWI differ
by Hafiz Yatim(10-22-12)@http://www.malaysiakini.com
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.