KUALA LUMPUR, Aug 7 ― Shariah prosecutors today finally withdrew three 2014 Shariah charges against Muslim intellectual Kassim Ahmad after the octogenarian’s long court battles, his lawyer confirmed.
Kassim’s lawyer Rosli Dahlan said the 83-year-old will no longer face the three Shariah charges that are each punishable with a maximum RM3,000 fine or maximum two-year jail, or both.
“The charges are all dropped, Kassim is totally free, all three of the bailors are released and bail money is to be returned,” he told Malay Mail Online when contacted after Kassim’s case was mentioned at the Putrajaya Shariah High Court.
Rosli said Kassim who is wheelchair-bound was present in court today with his son, along with his bailors Norhayati Kaprawi, Datin Paduka Marina Mahathir and Fansyurna Syalha Othman who had posted a total of RM6,000 in bail when he was first charged.
Just last week, Kassim’s lawyers had written a letter warning Shariah prosecutors to drop charges against him today, or to face court proceedings for being in contempt of the Court of Appeal and Federal Court’s rulings in his favour.
Kassim — who will be turning 84 next month — had won in the civil courts in his legal challenge against minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom, Federal Territories Islamic Religious Department’s (Jawi) then Chief Shariah Prosecutor Ibrahim Deris, Jawi and the government of Malaysia over his arrest and prosecution in the Shariah courts.
On December 21, 2015, a Court of Appeal panel 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’s 2015 order had quashed the Federal Territories chief Syarie prosecutor’s decision to charge Kassim in 2014 with three Shariah offences and to continue prosecuting him; with the same court order also directing Jawi to cancel the arrest and bail on him.
The Court of Appeal order also carried an endorsement of a penal notice, which warned that failure to comply with its order to halt the Shariah prosecution could result in a “process of execution” — or contempt of court proceedings — against Jamil Khir as the minister and Mohammad Adib Husain as the then Federal Territories chief Sharie prosecutor to compel them to obey.
The Federal Court affirmed the Court of Appeal’s ruling that the Shariah prosecution was invalid last March 7.
Kassim was charged on March 27, 2014 with two separate charges of insulting Islam and defying religious authorities under Section 7(b) and Section 9 of the Syariah Criminal Offences (Federal Territories) Act 1997; and with another charge under Section 7(b) on May 26, 2014.
Kassim’s lawyers had written multiple letters to seek for the dropping of the two Shariah charges, including letters in December 2015 and January 2016 to ask Jawi to respect the Court of Appeal decision, as well as a March 10 letter asking the Attorney-General’s Chambers to advise Jawi and the minister to stop Kassim’s prosecution.
Rosli said he was “relieved” for his client, but expressed regret that the trio that sued — Jawi, the minister and the chief Shariah prosecutor — were “not big-hearted enough” to immediately drop the charges after Kassim’s December 2015 Court of Appeal victory.
Kassim’s freedom has been the result of hard-won legal battles of over three years that even extended to today, where his lawyer still had to argue for his acquittal and discharge of the Shariah charges.
According to Rosli, Jawi’s Federal Territories Shariah prosecutors today told the Shariah judge that they acknowledge the Federal Court’s ruling but claimed to have no powers to release Kassim from his Shariah charges.
“When they started, they have the audacity to inform the court that although there is a Federal Court decision, and although they accept the Federal Court decision, the prosecution can’t withdraw because there’s no chief Shariah prosecutor now and the powers to withdraw charges are only vested in the chief Shariah prosecutor.
“And they said the [Federal Territories] chief Shariah prosecutor was transferred out recently and therefore no one can make a decision,” he said.
“So I told the court that this is a nonsensical argument because if they say they can’t exercise the powers of the chief Sharie prosecutor as provided under Section 58(3) of the Administration of Islamic Law (Federal Territories) Act, then they also cannot come to court and argue or appear today,” he said, noting that any Shariah prosecutor can in fact exercise the chief Shariah prosecutor’s powers.
Under Section 58(3), the chief Shariah prosecutor may appoint Shariah prosecutors who shall act under his general control and direction, with the prosecutors also empowered to exercise all the rights and powers that are vested in or exercisable by the chief prosecutor.
Rosli said the Shariah prosecutors’ “nonsensical” claim to be powerless to release Kassim appeared to be a bid to delay the court case, noting that Shariah criminal cases continued to be initiated and go on despite the post of chief prosecutor being vacant.
“Even if they don’t want to — that means they are in contempt of the Court of Appeal and Federal Court --- the Shariah court can also under Section 96(g) discharge the accused especially when nothing else is outstanding,” he said, referring to the judge’s powers during trial under Section 96(g) of the Syariah Criminal Procedure (Federal Territories) Act
Instead of a mere confirmation from the Shariah prosecutors that they would withdraw the charges in compliance with the civil courts’ orders, Rosli said he had to present full arguments from 10am to 11.30am, with the Shariah court then giving its decision at 12.45pm.
Rosli said the Shariah judge agreed with his arguments, ruling that the prosecutors may exercise the powers of a chief prosecutor when the latter’s post is vacant.
The Shariah court also ruled today that it had the powers to acquit and discharge Kassim on its own under Section 96(g), but directed the prosecutors to exercise their powers under Section 58 to withdraw the charges.
“Only then they agreed to withdraw,” Rosli said.
All that is left now is for the Kuala Lumpur High Court to hear and decide on the amount of compensation that should be paid by those sued to Kassim, Rosli said.