February 24, 2015
COMMENT: It has been 3 years since JAWI raided the Borders Bookstore at Mid-Valley, Kuala Lumpur. I have been writing since it first came to light in 2012 about the plight of Nik Raina who was accused of selling Irshad Manji’s book,”Allah, Liberty and Love”
I wanted to tell the Malaysian public that Nik Raina was denied her freedom to get on with her life and work by overzealous religious functionaries despite the fact that both the High Court and the Court of Appeal had ruled that the raid on Borders Bookstore was wrongful and illegal.
There is, therefore, no justification to charge Nik Raina Section under Section 13 (1) of the Shariah Criminal Offences (Federal Territories) Act. Instead, the Shariah Court should exercise its judicial discretion under Section 96 (g) of the Shariah Criminal Procedure (Federal Territories) Act 1997 to discharge her.
Lawyer Rosli with the Borders Team
I wish to congratulate Borders Malaysia for standing up for its employee and thank Lawyer Rosli Dahlan (above) for doing an excellent job on behalf of Nik Raina and her employer. Let us hope that good sense and justice will prevail on February 26, 2015. –Din Merican
FOR IMMEDIATE RELEASEStatement by the COO of Berjaya Books Sdn Bhd, Yau Su PengRELEASE NIK RAINA FROM THIS PERSECUTION!Kuala Lumpur
24 February 2015
1. On 23rd May 2012, enforcement officers of Jabatan Agama Islam Wilayah (‘JAWI’) raided Borders bookstore, seized several books and examined Borders’ Muslim and non-Muslim employees.
2. On 19th June 2012, Borders’ Muslim store manager, Nik Raina binti Nik Abdul Aziz, was charged in the syariah court, for an offence of distributing publication that is offensive to Islam under section 13 of the Syariah Criminal Offences (Federal Territories) Act 1997. Since then Nik Raina has been on bail and is required to appear in the Syariah Court whenever ordered to do so.
3. On 22nd March 2013, the Kuala Lumpur High Court declared that the raid on Borders and the prosecution of Nik Raina were wrongful and illegal.
4. On 2nd April 2013, the Ketua Pendakwa Syarie of JAWI filed an appeal against the order of High Court. Thereafter, since 7th October 2013 the Syariah Court has postponed the syariah proceedings until JAWI’s appeal in the Court of Appeal is disposed.
5. On 30th December 2014, the Court of Appeal unanimously dismissed JAWI’s appeal and upheld the High Court’s judgment that the enforcement actions against Borders and the prosecution against Nik Raina were wrongful and illegal.
6. On 31st December 2014, solicitors for Borders wrote to the Ketua Pendakwa Syarie of JAWI and the Syariah Court requesting for the syariah criminal charge to be withdrawn in view of the judgment by the Court of Appeal. The Ketua Pendakwa Syarie did not reply to Borders’ solicitors.
7. By a notice dated 12th January 2015, the Syariah Court fixed the syariah criminal proceeding for mention on 26th February 2015.
8. The management of Berjaya Books Sdn Bhd, as the owner of Borders Bookstores, calls for an end and a closure to the criminal proceedings against Nik Raina. It has been three years since this incident happened. It has been three years since Nik Raina lost her absolute freedom to become a person who is currently under bail. It has been three years that Nik Raina has had to endure adversities in her life including being looked upon with suspicion by the Muslim community. Much cost and expense have been incurred to defend Nik Raina in the Syariah Court and to protect her rights guaranteed under the Federal Constitution in the civil courts.
9. Since then two superior courts, namely, the High Court of Malaya and the Court of Appeal have delivered clear pronouncements that JAWI’s actions and the prosecution against Nik Raina were wrongful and illegal. It is time that this matter is put to rest. It is time that the Syariah Court exercise its judicial discretion under section 96 (g) of the Syariah Criminal Procedure (Federal Territories) Act 1997 to discharge Nik Raina. There are clear and settled judicial precedents that empower the Syariah Court to do so. Section 96(g) of the Syariah Criminal Procedure (Federal Territories) Act 1997 (which is a reproduction of s.173(g) of the Criminal Procedure Code) provides:
“ s. 96(g) – nothing in paragraph (f) shall be deemed to prevent the Court from discharging the accused at any previous stage of the case if for reasons to be recorded by the Court it considers the charge to be groundless.”
10. The two judgments of the High Court and the Court of Appeal mean that the current syariah criminal charge against Nik Raina is groundless. It is to be noted that there has been no stay of execution against the two judgments which means that they are effective and must be complied with at all times. It is to be noted that JAWI has only filed a motion for leave to appeal to the Federal Court. JAWI has not obtained that leave and as a matter of fact there is no appeal pending. Even if JAWI wish to preserve its position, there is no legal justification for the syariah proceedings to be prolonged.
11. Therefore, when this matter is called before the Syariah Court on 26th February 2015, there is no basis either for the Ketua Pendakwa Syarie of JAWI or the Syariah Court to postpone this matter any further. At the very least, Nik Raina should be released by way of a discharge not amounting to an acquittal (DNAA). In that manner, Nik Raina’s freedom and personal liberty can be duly restored and neither JAWI nor anyone else will suffer any prejudice.
12. The Board of Directors and Management of Berjaya Books Sdn Bhd implore the Ketua Pendakwa Syarie and the Syariah Court to act in consonant with constitutional principles and the Rule of Law in order that justice may prevail for all and that Nik Raina’s fundamental rights as a free citizen is restored.
ABOUT BORDERS MALAYSIA
Borders in Malaysia is operated by Berjaya Books Sdn. Bhd. and is now wholly owned by Berjaya Corporation. Borders Malaysia goes beyond offering quality books, with educational and entertainment items. The first Borders Malaysia store opened its doors for business in 2005 at Berjaya Times Square, Kuala Lumpur. Today, there are six Borders Malaysia stores. They are located at The Curve, Mutiara Damansara; The Gardens, Mid Valley City; Tropicana City Mall, Petaling Jaya; Bangsar Village II, Bangsar, Queensbay Mall, Penang and IOI City Mall, Putrajaya.
Borders Malaysia offers a selection of almost 200,000 book and magazine titles. The urban bookstore chain believes in developing the culture of reading and aims to promote English literacy. To achieve this it looks to making reading and learning fun and exploratory. Another key characteristic of Borders is the personal service and the warm, reader-friendly ambience. There are also Borders Express stores, which cater to the specific needs of niche customers; there are two currently, located at Berjaya Times Square and Bangsar Village II.
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Stop persecuting store manager, Borders tells JAWI
by The Malaysian Insider
Borders Malaysia today demanded that store manager Nik Raina Nik Abdul Aziz (above) be freed from further persecution by religious authorities, two days before she is to appear in the Shariah Court for allegedly selling and distributing a book contrary to Islamic laws.
In a statement, Borders Malaysia said that the charge was groundless as both the High Court and the Court of Appeal ruled that the 2012 raid on the bookstore had been wrongful and illegal.
“The management of Berjaya Books Sdn Bhd, as the owner of Borders Bookstores, calls for an end and a closure to the criminal proceedings against Nik Raina. It has been three years since Nik Raina lost her absolute freedom to become a person who is currently under bail. It has been three years that Nik Raina has had to endure adversity in her life including being looked upon with suspicion by Muslims.”
The Shariah Court fixed the criminal proceeding for mention on February 26. Nik Raina was charged under Section 13 (1) of the Shariah Criminal Offences (Federal Territories) Act and if convicted could be fined up to RM3,000 or jailed up to two years, or both.
Borders Malaysia said the Shariah Court should exercise its judicial discretion under Section 96 (g) of the Shariah Criminal Procedure (Federal Territories) Act 1997 to discharge her.
It said the Federal Territories Islamic Religious Department (JAWI) had not filed a motion for leave to appeal to the Federal Court the decision made by the Court of Appeal last year.
“Even if Jawi wishes to preserve its position, there is no basis either for JAWI or the Shariah Court to postpone this matter any further.
“At the very least, Nik Raina should be released by way of a discharge not amounting to an acquittal. In that matter, Nik Raina’s freedom and personal liberty can be duly restored and neither Jawi nor anyone will suffer any prejudice.”
On December 30, the Court of Appeal decided that JAWI was wrong in raiding and seizing copies the controversial book “Allah, Liberty and Love” by Irshad Manji from a Borders bookstore, upholding a lower court’s decision.
The book was seized before an edict banning it was issued and Jawi’s actions were deemed illegal and unconstitutional.
A three-man bench, led by Datuk Mah Weng Kwai, also held that JAWI’s actions against Nik Raina was unconstitutional and illegal and said her arrest and prosecution must be quashed.
This case has also shone a spotlight on the country’s parallel systems of civil law and shariah law, with the majority Malay-Muslim population being bound by the shariah.
The three respondents in the case were Berjaya Books Sdn Bhd, Borders assistant general-manager of operations and merchandising Stephen Fung, and Nik Raina.
The appeal was filed by JAWI, the Home Minister and the Minister in the Prime Minister’s Department in charge of Islamic religious affairs, Datuk Seri Jamil Khir Baharom.
The parties were appealing against the Kuala Lumpur High Court’s decision to allow Berjaya Books’s judicial review to quash JAWI’s actions in seizing Irshad Manji’s book from the bookstore.
On May 23, 2012, Jawi had conducted a raid at the bookstore and subsequently Nik Raina was accused by the religious authority of breaching the hukum syarak by distributing or selling the book “Allah, Liberty and Love”.
When JAWI conducted the raid, the book had not been banned and Nik Raina was not responsible for the buying and stocking of books and merchandise in Borders stores.
Despite a number of representations made by her lawyers on Nik Raina’s behalf, JAWI insisted on prosecuting her.
On June 18, 2012, Borders filed for leave to commence a judicial review on the legality of the raid, the process and prosecution of Nik Raina at a time when there was no ban of the publication.
The High Court subsequently granted leave for Borders to commence judicial review proceedings against JAWI for raiding, searching, seizing of publications and subjecting to examination and investigation Borders’s Muslim and non-Muslim employees.
They also sought legal clarification on the arrest and prosecution of Nik Raina for distributing by way of selling Irshad Manji’s book (in English) and the Malay translation “Allah, Kebebasan dan Cinta” which is said to be against Section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997.
The Home Ministry banned the book on May 29, and the ban only came into effect on June 14, three weeks after the raid.
The then Home Minister Datuk Seri Hishammuddin Hussein, in his affidavit filed in the High Court, stated that JAWI had powers to seize books that are in violation of Islamic law even if they are not banned by the ministry.
“Although there had been no Prohibition Order on the date on which the book was confiscated by JAWI, the department is empowered to seize the book because the book had contravened Section 13 of the Shariah Criminal Offences (Federal Territories) Act 1997,” he wrote in his affidavit at the time.
On March 23 last year, the High Court in Kuala Lumpur ruled that Jawi had acted illegally in raiding the Borders bookstore at the Gardens Mall in Kuala Lumpur and seizing the book.
Justice Datuk Zaleha Yusof said in her judgment that JAWI had also acted illegally in charging store manager Nik Raina, a Muslim employee, at the shariah court in Kuala Lumpur. Following the judgment, Jawi filed an appeal against the High Court’s decision.