Posted: 26 Jun 2013 01:42 PM PDT
The Kuala Lumpur High Court today (26th June 2013) dismissed JAWI's application to stay the execution of the High Court Order dated 22nd March 2013 which had declared the actions of JAWI against Berjaya Books Sdn. Bhd. as unconstitutional and illegal.
The High Court of Kuala Lumpur had on 22nd March 2013 granted the Judicial Review reliefs sought by Borders and its two employees Stephen Fung Wye Keong and Nik Raina Binti Nik Abdul Aziz. The High Court Order effectively quashed the actions by the Jabatan Agama Islam Wilayah Persekutuan ("JAWI") in raiding and seizing books authored by an international writer, Irshad Manji, entitled, 'Allah, Liberty and Love', from Borders and in charging its store manager, Nik Raina.
The facts and the law show that JAWI had acted prematurely when the said book was not yet banned at the time of JAWI's actions. The High Court also declared that JAWI's enforcement action was wrongful and unconstitutional and that Section 13 of the Syariah Criminal Offences Act 1997 was ultra vires Article 7 of the Federal Constitution.
Since the issuance of the said High Court Order, Borders' counsel, Messrs Lee Hishammuddin Allen & Gledhill, have written numerous times to JAWI and the Ketua Pendakwa Syarie requesting them to obey the High Court Order by withdrawing the charge against Nik Raina. Not a single reply was forthcoming from JAWI and the Ketua Pendakwa Syarie.
In today's proceedings in the High Court, JAWI, the Minister of Home Affairs, and the Minister from the Prime Minister's Department (Religious Affairs) were represented by Senior Federal Counsel from the Attorney General Chambers. The High Court ruled that there were no special circumstances to warrant a stay and also ruled that JAWI's appeal to the Court of Appeal would not be rendered nugatory if the stay is not granted.
To the contrary, Borders' counsel, En. Rosli Dahlan, informed the Court that the Respondents' refusal to obey the High Court Order dated 22nd March 2013 is prejudicial to Nik Raina. She continues to suffer as an accused person having a criminal prosecution hanging over her head despite having committed no wrong in law and in fact, best described by the Malay proverb - "Digantung tak bertali". Rosli also informed the Court that while Borders is not seeking costs against JAWI, public interest and justice demands that such oppressiveness be put to an end and should not be tolerated nor allowed to be perpetuated.
Borders is aggrieved that JAWI and the Ketua Pendakwa Syarie have stonewalled all efforts to amicably resolve this matter by immediately withdrawing the charge against Nik Raina as directed by the High Court Order. JAWI, as a government agency, and the Ketua Pendakwa Syarie, Tuan Haji Ibrahim Bin Deris, a public officer should show respect to the High Court Order dated 22nd March 2013 by obeying and implementing the terms of the Order. Their disregard for the High Court Order will reflect badly on the government whereas these agencies and officers should be held personally accountable for their total disrespect to the judiciary. Borders implore them not to openly display disobedience to the system of justice of this country.
Borders will instruct its counsel to once again seek constructive engagement with JAWI and the Ketua Pendakwa Syarie with a view to seek closure to this matter. Prolonging this matter does not benefit anyone and is a disservice to the government's efforts to project Malaysia as a progressive Muslim nation.
In the spirit of reconciliation, Borders hope that the Attorney General Chambers and the Minister in charge of JAWI would advise JAWI and the Ketua Pendakwa Syarie to do the right thing i.e. to obey the High Court Order and to immediately withdraw the charge. It would be unfortunate if contempt proceedings have to be initiated against these public officers just to compel them to obey the High Court Order.
Borders hope that this call for reconciliation will be received positively by JAWI and the Ketua Pendakwa Syarie in the manner that it is intended.
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