PUTRAJAYA, Feb 7 — The Federal Territories Islamic Religious Department’s (Jawi) leave application in the Federal Court to reverse the Court of Appeal’s ruling favouring Muslim intellectual Kassim Ahmad has been postponed to March 14.
The hearing will be heard in front of another panel after the applicants could not decide whether to proceed with the panel comprising Federal Court judges Tan Sri Ahmad Maarop, Tan Sri Ramly Ali and Datuk Aziah Ali.
Earlier, Ramly notified the court that he had to recuse himself since then High Court judge Datuk Zaleha Yusof, who had rejected Kassim’s application to obtain leave for a judicial review in July 2014, is his wife. Zaleha is now a Court of Appeal judge.
The applicants — Jawi, minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom and the Malaysian government — were represented by senior federal counsel Maisarah Juhari.
In its affidavit, the applicants wish to argue whether the Civil Court, in exercising its civil jurisdiction, can review and discontinue the prosecution of criminal cases in the Shariah Court, especially when the offence is against the precepts of Islam.
They also wish to argue whether the charge would be rendered defective in the circumstances when an investigation or arrest process of an offence was not carried out in compliance with the procedures laid down in the relevant statute.
Kassim’s lawyer Rosli Dahlan told reporters outside the court the fact does not matter since, although Justice Zaleha had decided that the Civil Court had no authority to hear the case, she has decided otherwise for other similar cases.
“As far as Datuk Zaleha was concerned, she was fair,” Rosli told the media, mentioning Zaleha’s decision to grant leave for bookstore Borders to pursue a judicial review against Jawi’s abuse of power.
On December 21, 2015, a three-man panel at the Court of Appeal unanimously found Jawi’s actions on Kassim ― including a cross-border arrest using a defective warrant, a detention exceeding 24 hours without access to lawyers, his prosecution ― to be illegal.
The Court of Appeal set aside the Kuala Lumpur High Court’s dismissal of Kassim’s legal challenge against Jawi, where High Court judge Datuk Asmabi Mohamad ruled that he should sue to protect his constitutional rights instead of pursuing a judicial review.
Kassim’s challenge argued 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 2015, 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.
The Putrajaya Shariah court has since said on February 2016 it will defer its ruling on whether to drop Kassim’s charges of insulting Islam and defying religious authorities until a final decision by the Federal Court is reached.