by Ho Kit Yen
The Court of Appeal on Monday allowed Islamic scholar Kassim Ahmad to challenge his Syariah arrest and prosecution by the Federal Territories Islamic Religious Department (Jawi).
The three-member panel of judges, led by Justice Vernon Ong Lam Kiat, ruled that the arrest and prosecution of the 82-year old was illegal.“The arrest warrant on Kassim was clearly defective, it was substituted with words ‘pejabat penguatkuasa terdekat’ (nearest religious department) from the original ‘mahkamah syariah terdekat’ (nearest Syariah Court),” said Justice Vernon. “The warrant was bad in law.”
Justice Vernon, along with Justices Abdul Rahman Sebli and Hasnah Hashim, also ruled that the Jawi officers clearly failed to comply with Section 36 of the Kedah Syariah Enactment, taking him to the nearest ‘kadi’ or Syariah judge, as he was taken to Penang and on board a flight to Kuala Lumpur.
The Appeal Court also found that Kassim was deprived of his constitutional rights under Article 5(3) of the Federal Constitution to consult a lawyer upon his arrest. “He was arrested in the morning of March 26, 2014 and he was only charged in the afternoon of March 27.”
“It clearly exceeded 24 hours, and he was deprived of legal rights,” said Justice Vernon. Besides that, the appeal court ruled that the fatwa in the Federal Territories cannot be used against residents in other states. “It is not disputed Kassim lives in Kedah. Clearly he is not obliged to the fatwa in question,” Justice Vernon said.
The three judges allowed the orders to quash the arrest warrant and the religious prosecution. A cost of RM20,000 was awarded to Kassim, while the damages on the embarrassment and trauma he faced on the wrongful prosecution will be accessed before a deputy registrar.
Speaking to reporters outside, the academician said he was thankful and happy for the decision. Alhamdulilah,” he said. “I came all the way from Kedah this morning to hear the decision.” Kassim’s lawyer Rosli Dahlan said he will be writing to JAWI to withdraw the charges in order to end this “conflict and controversy”.
According to the facts, Kassim was arrested on March 26, 2014 when JAWI officers raided his Kedah home in the morning. He was then taken to the Kulim Police station, before flying him from Penang to Kuala Lumpur. He was also interrogated and examined in the wee hours on March 27 by JAWI officers.
He was charged at the Putrajaya Syariah Court later in the morning for insulting Islam and defying JAWI’s order. He then filed for a judicial review to strike out the syarie chief prosecutor’s decision to prosecute him for allegedly insulting Islam and defying the religious authorities. Kassim, as applicant, named Minister in the Prime Minister’s Department Jamil Khir Baharom, Chief Syarie Prosecutor, JAWI and the government as respondents.
On January 6 this year, the 82 year-old academician failed in his judicial review to challenge JAWI’s prosecution against him. The High Court ruled that his case fell under the Syariah jurisdiction and that he should bring the case to the Syariah appeal court.
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