Apex court throws out Jawi’s bid to appeal against Kassim Ahmad’s court victory

In March 2015, Muslim intellectual Kassim Ahmad (pic) was charged at the Syariah High Court in Putrajaya with insulting Islam and defying religious authorities at a seminar in February.― Picture by Saw Siow Feng
In March 2015, Muslim intellectual Kassim Ahmad (pic) was charged at the Syariah High Court in Putrajaya with insulting Islam and defying religious authorities at a seminar in February.― Picture by Saw Siow Feng

KUALA LUMPUR, March 7 — The Federal Court dismissed today a leave application by Federal Territories Islamic Religious Department (Jawi) and two others to reverse a Court of Appeal’s ruling favouring Muslim academic Kassim Ahmad.

The apex court panel lead by Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum unanimously decided today to refuse granting permission to hear the merits of the appeal, after the previous appellate court declaration that Kassim’s arrest by Jawi was unlawful.

Malaysiakini reported that the panel, which also included Federal Court judges Tan Sri Zainun Ali and Datuk Balia Yusof Wahi, dismissed the appellants’ arguments regarding the jurisdiction of Civil Court in Shariah cases, and procedures of arrest and investigation.

The panel reportedly said the questions had been answered twice — when the Court of Appeal granted leave in Kassim’s appeal against High Court dismissing his leave application, and again when the same court heard his appeal and ruled in favour of him.

The decision today meant that Kassim is one step closer to ending a three-year ordeal since he was arrested in Kedah and brought to the Federal Territories in order to be charged for allegedly insulting Islam and defying religious authorities.

The Putrajaya Shariah court had previously said on February 2016 it will defer its ruling on whether to drop Kassim’s charges until a final decision by the Federal Court is reached.

Kassim’s lawyer Rosli Dahlan was quoted saying today they will pursue the matter in the Shariah court either in May or June this year.

He also again urged Jawi and its Sharie chief prosecutor to use their discretion and withdraw the charges to avoid embarrassment.

Besides Jawi, the appellants today had included minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom, and Jawi chief Sharie prosecutor, who were represented by senior federal counsel Shamsul Bolhassan.

In March 2015, Kassim was charged at the Syariah 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 Syariah Criminal Offences (Federal Territories) Act 1997 that both carry a maximum fine of RM3,000 or imprisonment up to two years, or both.

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 and 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.