Why penalise Ahmadis under Shariah if considered non-Muslims? court asked

Lawyer Aston Paiva (left) meets some of the Ahmadiyya community outside the courtroom at the Shah Alam High Court April 10, 2018. — Picture by Yusof Mat Isa
Lawyer Aston Paiva (left) meets some of the Ahmadiyya community outside the courtroom at the Shah Alam High Court April 10, 2018. — Picture by Yusof Mat Isa

SHAH ALAM, April 10 — The Ahmadiyya community should be allowed to practise their faith since they are not considered Muslims by Selangor, the Shah Alam High Court was told today.

Lawyer Aston Paiva, who represented 39 Ahmadis arrested by the Selangor Islamic Religious Department (Jais), said the latter cannot attempt to charge the community with Shariah offences when they have refused to recognise the Muslim sect as adherents.

“This is not an apostasy case where they say that they renounce Islam. That cannot happen to an Ahmadi. An Ahmadi will never say they are no longer a Muslim. It defeats their whole purpose,” he said.

The Ahmadis, who are derogatorily called Qadianis here, adhere to the same beliefs as the Sunni branch of Islam, but also believe that their founder Mirza Ghulam Ahmad was the Imam Mahdi, Islam’s prophesied redeemer.

“In other words, the government has treated them as non-Muslims, so they should just be treated how they want to be treated.

“On the one hand, you say they are not Muslims; on the other hand, you are arresting them and taking them to the Shariah Court to face charges,” Aston added, referring to the Selangor religious enforcers.

The Ahmadis are seeking a judicial review following Jais’ arrest of its community members — which included eight Pakistani asylum seekers, two Indian nationals, one Indonesian and three minors — on April 11, 2014 for performing Friday prayers in a place that was not a mosque.

The group was told that it had not obtained written permission to use the premises — a shoplot in Dolomite Park, Batu Caves — for purposes which may only be carried out on, in or by a mosque, contrary to Section 97 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003.

The group was granted leave by the Kuala Lumpur High Court on August 14, 2014, before the proceedings were transferred to the Shah Alam High Court on September 15, 2015. A stay of proceedings was granted on February 5, 2016 pending the judicial review.

On May 5, 2017, an application was filed at the High Court to refer constitutional law questions to the Federal Court for determination, and on September 29 that year, it was allowed.

Two constitutional law questions were posed to the Federal Court: Whether the Shariah court has the jurisdiction to try offences relating to mosques, and whether the Shariah court has jurisdiction over members of the Ahmadiyya community.

However, on March 26 last month, the Federal Court referred the case back to the Shah Alam High Court.

Today, lawyer Hasnan Hamzah who represented the Selangor chief religious enforcement officer and chief Shariah prosecutor maintained that the arrest was lawful, as the Ahmadis were not authorised to use the premises as a mosque.

“It is unauthorised. When the raid was conducted, they did not have the authority to set up in the mosque,” he said, adding that the community needs to obtain a declaration from the Shariah court that they are “not Muslims”.

Judge Datuk Vazeer Alam Mydin Meera then quizzed Hasnan on the need for an official declaration, when the Selangor Fatwa Committee had already decreed the community as “kafir” or non-believers, and that any individual who follows it is an apostate on June 22, 1998.

However, Hasnan argued that the jurisdiction for such a declaration lies with the Shariah court and not a fatwa.

Meanwhile, lawyer Mohd Syahrizal Syah who represented Jais and the Selangor government said the Shariah offence charge against the 39 was constitutional, and the case should have been argued in the Shariah court and not the civil court.

Vazeer Alam then questioned Syahrizal on how such a law would apply to Ahmadis who are foreigners, but the latter insisted that they should have obtained official verification on their religious status before being allowed to practise their faith.

“They failed to show that they had received any verification that they are not Muslims. What was available were only a few documents from the United Nations, and their own identification papers to show they are refugees,” Syahrizal said.

Vazeer Alam then postponed the case for decision on May 30.

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