PUTRAJAYA, Dec 21 ― Muslim intellectual Kassim Ahmad today won his legal challenge against Federal Territories Islamic Department (JAWI) as the Court of Appeal found the religious body's actions including a cross-border arrest and a detention exceeding 24 hours to be illegal.
Court of Appeal judge Vernon Ong delivered a three-man bench's unanimous ruling in favour of the 82-year-old Kedah resident, ruling among other things that a fatwa in the Federal Territories only applies to Muslim residents there.
The two other judges on the panel today are Datuk Abdul Rahman Sebli and Datuk Hasnah Mohammed Hashim.
When reading out the grounds of the ruling, Ong said the warrant of arrest on Kassim was defective as it did not comply with statutory requirements, noting that the warrant was amended to state that Kassim would be brought to the JAWI office instead of the Shariah High Court.
“Accordingly, the arrest warrant is null and void,” he said.
Ong also noted that Kassim was not immediately brought before the nearest kadi or Shariah judge upon the latter's arrest in Kedah, as required by the law. Kassim's lawyer Rosli Dahlan had previously argued that this meant he was denied the chance to be released on bail.
The judge ruled that Kassim's rights under Article 5 of the Federal Constitution was violated with his overnight detention “which exceeded 24 hours” and when he was denied access to lawyers.
Ong also said that Kassim was charged by the Federal Territories chief syarie prosecutor with a “non-offence”, pointing out that the Kedah resident is not obliged to comply with a fatwa or religious edict in the Federal Territories.
In Malaysia, religious matters in respective states are governed by their own state laws and enforced by their respective religious bodies.
“Accordingly, the appeal is allowed. The decision of the High Court is set aside,” he said, awarding costs of RM20,000 to Kassim.
Ong ordered the quashing of the arrest warrant, the warrant to search and seize items at Kassim's house, as well as the quashing of the chief syarie prosecutor's prosecution of Kassim under Section 9 of the Shariah Criminal Offences (Federal Territories) Act 1997.
Among other things, Ong also ordered that JAWI and its chief syarie prosecutor produce a list of documents, and further declared that the Section 9 offence of disobeying a Federal Territories fatwa only applies to residents there.
On January 6, the Kuala Lumpur High Court judge Datuk Asmabi Mohamad dismissed Kassim's legal challenge against Jawi, ruling that he should sue to protect his constitutional rights instead of pursuing a judicial review.
The four respondents in Kassim’s judicial review bid are the minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom, Jawi, then Federal Territory chief Syarie Prosecutor Ibrahim Deris and the government.
Kassim’s challenge argues that the Islamic authority had acted with illegality, irrationality, procedural impropriety, unconstitutionality, ultra vires or acting beyond powers, abuse of discretionary power and unreasonable exercise of power.
In March last year, Kassim was charged at the Shariah High Court in Putrajaya with insulting Islam and defying religious authorities at a seminar in February that was officiated by former prime minister Tun Dr Mahathir Mohamad.
Kassim had pleaded not guilty to two separate charges under Section 7(b) and Section 9 of the Shariah Criminal Offences (Federal Territories) Act 1997 that both carry a maximum fine of RM3,000 or imprisonment up to two years, or both.
In the events leading up to his charging and eventual release at 1.30pm on this March 27, JAWI officers were said to have raided and searched Kassim's house in Kulim the previous day at around noon.
According to Kassim's lawyers, JAWI officers were then said to have forcibly removed him to the Kulim police headquarters and to the Penang airport which they reached at around 10pm, before boarding a flight that landed at Sepang past midnight, with further detention from 1.30am to 3.30am at the JAWI office for questioning and interrogation.
He was charged at 9am at the Putrajaya Shariah Subordinate Court but could only be released at 1.30pm when the bail requirements of two Federal Territories residents to pay a bail amount of RM3,000 each in cash could be met.
