October 20, 2012
The Nik Raina Case:Home Minister reneged upon his ministerial duties
by Hafiz Yatim@www.malaysiakini.com
Has Home Minister Hishammuddin Hussein reneged in his ministerial duties resulting in a Federal Territory Islamic Affairs Department's (JAWI) raiding Borders bookstore as well as a charging of a Muslim physical education instructor in a Syariah High Court for illegal placement of a controversial book?
Yes, argues Border's in a duplicate filed in a High Court in Kuala Lumpur upon Sep 26 to cross-examine Hishammuddin upon a matter.
The bookstore wants Hishammuddin upon a mount as it believes he has reneged upon his inherent duties as a sovereign minister.
This follows what it calls a Minister's try to behind a Jawi coercion unit's movement in seizing a controversial book, 'Allah, Liberty as well as Love', created by Canadian writer Irshad Manji, as well as a Bahasa Malaysia translation, upon May twenty-three a week prior to a central ban upon May 29.
The Home Minister in his Sep 5 affidavit to a High Court pronounced nonetheless there was no central ban slapped upon a book a day it was confiscated, JAWI was empowered to do so as 'Allah, Liberty as well as Love' contravened Section 13 of a Syariah Criminal Offences (Federal Territories) Act 1997.
"Seizure can be made by JAWI underneath a germane laws but any breach sequence from a Ministry," Hishammuddin states in his affidavit-in-reply to Borders original judicial examination duplicate to a High Court upon Jawi's seizure of Manji's books.
Yau Su Peng (left), a arch operating officer of Berjaya Books Sdn Bhd, which runs a Border's book chain, pronounced in a Sept 26 affidavit-in-reply to Hishammuddin which a minister contingency be compelled to crop up in a High Court.
"This is for him to explain a laws relating to publications; a existent governmental practice with regard to coercion movement upon publications; as well as a inner executive processes in between departments as well as supervision offices, generally as it concerns a religious authority.
"We also want to know a reasons as well as causes a Home Ministry had prohibited a book around a supervision bulletin dated May 29, 2012, as well as because a ministry had been asked by Jawi to prohibit a book days after a seizure," Yau says in her affidavit-in-reply performed by Malaysiakini.
Hishamuddin abdicated inherent duty
Yau, who holds a double degree in Law as well as Arts, as well as a Masters in Law from
Australia's Melbourne University, argued which Hishammuddin (right), in so doing, had unsuccessful to lift out his inherent duty.
She pointed out which counts concerning "the printing, import, production, reproduction, publishing, sale, issue, circulation, placement or possession of a publication" have not, as well as could not have been, provided for in a Syariah Criminal Act.
"In fact, if a Syariah Criminal Offences Act had made such provisions, it would be ultra vires (beyond a powers of) a Federal Constitution. The supplies to a above, ! as well as in particular printing, have been inside of a purview of a Home Minister.
"Hence, a in front of adopted by a Honourable Home Minister is unfortunate as well as amounts to an abdication of his inherent duties as well as responsibilities," she said.
Yau added it was clear which Borders being a sequence of bookstores with Stephen Fung as a General Manager, as well as Nik Raina Nik Abdul Aziz as Fung's subordinate, had no power over a preference of books to be sold.
She stressed which while a company did not object to a supervision sequence to ban sure books, a judicial examination duplicate was to plea JAWI's actions opposite a store as well as a staff but a gazetted breach sequence entrance in to force or a gazetted fatwa being issued.
"As such, a subject counts as well as issues which have been raised contingency be decided by a civil High Court as well as not by a Syariah Court. This is clear from Article 121 of a constitution," Yau adds in her affidavit.
Nik Raina: I have no authority
Nik Raina, who was charged by Jawi as well as a party to a judicial examination application, pronounced she as store physical education instructor at a Mid-Valley bend of Borders had no authority or responsibility over a publications displayed in a bookstore as this authority was vested in Fung.
"At all material times, a book stock displayed comprises more than 200,000 unique titles. It would be unfit for a Borders employees to be able to read or scrutinize a contents of any of those books.
"Hence, a practice practical in Borders is which all books have been insincere to be lawful as well as permitted in Malaysia until a breach sequence is released opposite a particular title. Only after being sensitive by a Home Ministry's breach sequence will Borders take steps to pause a sale."
She pronounced as store manager, she would govern any orders from Fung as well as Borders government with regard to book proh! ibition.
Nik Raina (left) conceded which she does not have any specialisation in Islamic knowledge as well as hence, she was incompetent to determine if a announcement was contrary to a religious law.
As a layperson, she has depended upon a Home Ministry's notices or a relevant state religious authorities to inform her upon such matters.
"Prior to this, JAWI, nor any of a state authorities, had since notice of breach orders or gazetted fatwa or any other notices which any of a publications have been contrary to Islam," she said, adding Hishammuddin's confirmation ought to be discharged by a court.
"As Jawi cannot prosecute Fung, it has caused authorised inequalities as well as has disregarded a element which all persons have been equal prior to a law as well as entitled to equal protection of a law," pronounced Nik Raina, who is Muslim.
The case will be listened prior to High Court decider Rohana Yusof upon Monday, Oct 22,2012.
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