Kassim Ahmad's arrest by Jawi 'unlawful', court rules

Muslim scholar Kassim Ahmad today won his challenge against the Federal Territories Islamic Department (Jawi)'s prosecution for allegedly insulting Islam and disobeying a fatwa.

Court of Appeal judge Vernon Ong delivered the unanimous decision of the three-man bench in the court in Putrajaya and declared, among others, that the arrest of the 82-year-old on March 26 last year was unlawful.

Justice Ong also said that there were changes made to the arrest warrant used against Kassim, which made the process null and void.

"We order that the arrest, detention and prosecution are null and void," he said in allowing Kassim's appeal against a High Court ruling.

The bench also held that the civil High Court had supervisory jurisdiction over an inferior tribunal, including the Syariah Court, when it had erred in law.

Justice Ong said there were changes made to the arrest warrant used against Kassim that made the process null and void.

In particular, he said, it was found that Jawi had “amended" the arrest warrant from “bringing the arrested person to the nearest Syariah Court” to “nearest religious department office."

"It is clear that the arrest warrant is defective and accordingly, the arrest warrant is rendered null and void," the judge added.

Upon his arrest, Justice Ong said, it was "not disputed" during the appeal hearing that Kassim was never brought before the nearest kadi, in Kedah, as required under the law.

He said it was also not disputed that Kassim is a resident of Kedah and not the Federal Territories and as such, the charge under Section 9 of the Syariah Criminal Procedure (Federal Territories) Act 1997 is not binding on him.

"In our view, the appellant is not obliged to obey a fatwa issued in the Federal Territories," he said.

On his detention, Justice Ong said it was found that Kassim was held for more than 24 hours before being charged and denied his rights to legal consultation.

"Accordingly, the appeal is allowed and the High Court decision is set aside," he said.

The other members of the Court of Appeal panel were Justices Abdul Rahman Sebli and Hasnah Mohammed.

Jawi should drop charges

Kassim, who travelled from Kedah this morning, was accompanied by his wife, two daughters and four grandchildren.

Also present in a show of support were social activist Marina Mahathir, former law minister Zaid Ibrahim and activist filmmaker Norhayati Kaprawi.

Kassim had named Minister in the Prime Minister’s Department Jamil Khir Baharom, chief syarie prosecutor, Jawi and the government as respondents in his legal challenge.

Met outside the courtroom later, a visibly relieved Kassim said: "Alhamdulillah (Praise Allah), we have won our appeal today. I hope that Jawi will now drop the charges against me."

His counsel Rosli Dahlan said the logical next step would be for Jawi to drop the charges against Kassim, which have been set for mention on Jan 18 next year.

"Now that there is a conclusive decision by the Court of Appeal, I think it would be honourable on their part to withdraw the charges," Rosli told reporters.

He added that the court decision today also shows how Jawi's actions are not in accordance with its own syariah laws. -Mkini