Remand provision in Selangor shariah law constitutional, rules court

A three-member Court of Appeal bench said shariah judges were allowed to impose conditions, including the bond sum and sureties, in granting bail.

PUTRAJAYA: The Selangor government and its religious authorities have been allowed to set aside a High Court ruling that a provision in the state’s Shariah Criminal Procedure Enactment 2003 is unconstitutional.

A three-member Court of Appeal bench chaired by Justice Azizah Nawawi said Section 23 of the enactment was not null and void nor unconstitutional.

She said that the provision empowered a shariah lower court judge to allow a person to be released on bail pending the completion of investigations by the state religious authorities.

“We are of the considered opinion that Section 23 is not null and void and against Articles 5 and 8 of the Federal Constitution,” said Azizah who delivered the broad grounds of judgment.

Fourteen individuals, who were said to have committed shariah criminal offences, had filed a judicial review as they said the provision allowed for indefinite detention.

Azizah, who sat with Justices M Nantha Balan and Hashim Hamzah, also said shariah judges were allowed to impose conditions that included the bond sum and sureties in granting bail.

She said the High Court also erred in quashing the order to impose bail conditions as religious and civil courts were two separate legal systems.

The bench also held that two shariah lower court judges could not be sued for issuing an order under Section 23.

“We are also of the considered opinion that the judges were performing their judicial functions and therefore given protection under Section 76 of the Selangor Islamic Religion Administration Enactment,” Azizah said.

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The bench also set aside the April 14, 2023, ruling ordering the Selangor Islamic religious department (Jais) and the state government to pay RM10,000 in damages each to Abdul Kahar Ahmad and the 13 others.

This matter came about when the 14 individuals were investigated for allegedly propagating deviant teachings against the doctrine of Islam.

Harian Metro and Berita Harian reported that Jais had detained Kahar and the rest at three separate locations in Selangor and Kuala Lumpur on Sept 20, 2020.

Some of them were detained for up to 99 days from Sept 21, 2020, to Dec 28, 2020, as they were unable to fulfil bail conditions.

However, until today, they have not been charged at the shariah court.

Following their release, they filed a judicial review application at the civil court to challenge the validity of their arrest and detention.

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They named Jais, its director-general, its enforcement chief, Shah Alam shariah lower court judge Masnizar @ Mohd Nizar Mohtar, the state government and Shah Alam shariah court judge Shanizah Ngatiman as respondents.

The High Court had ruled that the first to fourth respondents had wrongly detained Kahar and the 13 others.

The judge also ruled that Section 23 of the enactment was invalid as it contravened the constitutional right to liberty and equality enshrined under the Federal Constitution.

Selangor state legal adviser Salim Soib represented the appellants while lawyers Fahri Azzat and Iqbal Harith Liang appeared for the 14 individuals. - FMT