Despite JAWI's pullout bid, Syariah court retains illegal book charge on Borders' manager

On June 19 last year, Nik Raina was charged under Section 13 (1) of the Syariah Criminal Offences (Federal Territory) Act for allegedly selling and distributing a book that is contrary to the Islamic laws. — Picture by Saw Siow Feng
On June 19 last year, Nik Raina was charged under Section 13 (1) of the Syariah Criminal Offences (Federal Territory) Act for allegedly selling and distributing a book that is contrary to the Islamic laws. — Picture by Saw Siow Feng

KUALA LUMPUR, Oct 7 — The Syariah court today ruled to keep an illegal book sale and distribution charge against Borders Bookstores’s Nik Raina Nik Abdul Aziz, until a related case at the Court of Appeal is disposed of, dashing the company’s hopes for the branch manager to be released from the Islamic case.

Syarie judge Datuk Abdul Walid Abu Hassan rejected the Federal Territory Islamic Affairs Department (JAWI)’s application to withdraw a charge against Nik Raina, which involves Canadian author Irshad Manji’s book “Allah, Love and Liberty”.

Among other things, Abdul Walid said that the case was a matter of public interest, saying that the court wants to determine if the book was unlawful.

“Therefore I dismiss this application and I am staying it until the case at the Court of Appeal is decided,” the Federal Territory Syariah High Court judge said.

On June 19 last year, Nik Raina was charged under Section 13 (1) of the Syariah Criminal Offences (Federal Territory) Act for allegedly selling and distributing a book that is contrary to the Islamic laws.
If convicted, she can be fined up to RM3,000 or jailed up to two years, or both.

On March 22 this year, the Kuala Lumpur High Court ruled that JAWI had acted illegally in raiding Borders and seizing the books, as well as charging Nik Raina.

JAWI was then ordered by the High Court to withdraw its charges against Nik Raina in the Syariah court.

On June 26, JAWI failed to get a stay from the High Court on the order to retract charges in the Syariah court.

The hearing date for the expected dropping of charges in the Syariah Court was then fixed for August 28, but it was subsequently shifted repeatedly to September 3, September 13 and today.

Before Abdul Walid’s decision, Syarie prosecutor Che Saupi Che Husin told the court that the prosecution respects the Kuala Lumpur High Court and its order to drop the charges against Nik Raina.

Che Saupi then raised Section 103 of the Syariah Criminal Procedure Act when applying for the charge’s withdrawal, pointing out the the clause also states that it would be subject to the court’s consent.

But Rosli questioned the sincerity of JAWI’s application to withdraw the charges, referring to the use of Section 103 of the above-mentioned Islamic law.

Abdul Walid also expressed his concern that future cases would see litigants going to the civil courts to stop actions at the Syariah court, saying that there appears to be a blocking of the Syariah court’s exercise of powers in Nik Raina’s case.

But Nik Raina’s lawyer Rosli Dahlan objected in court, saying that this was “speculative” in nature, arguing that the Syariah court’s powers was not being challenged.

“It’s speculative to ask this question — ‘what happens if tomorrow the Syariah court’s jurisdiction on other things are being challenged?’

“It must be remembered today there was no challenge to the Syariah court,” Rosli later told reporters outside the courtroom, saying that the High Court’s order on JAWI was merely due to the charge being “procedurally wrong” in which Nik Raina was prosecuted before the book was banned.

“This is very regrettable and unfortunate because the controversy could (have) end, but because of this, it would lead to constitutional crisis,” Rosli added.

Malaysia practises a dual-track legal system in which the Syariah courts run parallel to the civil courts; however, Islamic law and its penalties are binding only on Muslims.

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