Tuesday, March 7, 2017

Federal Court dismisses Jawi's appeal in Kassim Ahmad case

Hafiz Yatim     Published     Updated
Academician Kassim Ahmad's three-year predicament with the Federal Territory Islamic Department (Jawi) for allegedly insulting Islam and disobeying a fatwa is nearing an end.

This follows the Federal Court's three-member bench today unanimously dismissing the appeal by Minister in the Prime Minister's Department Jamil Khir Baharom, Jawi and its chief syariah prosecutor.

The apex court refused to grant permission to hear the merits of their appeal against the Court of Appeal's ruling that the arrest and prosecution of the 83-year-old academician was unlawful.

Chief Judge of Sabah and Sarawak Justice Richard Malanjum, who led the bench today, dismissed the questions of law raised by the authorities and the minister concerning jurisdiction and the arrest.

The other two judges were Federal Court judges Justice Zainun Ali and Justice Balia Yusof Wahi.

The apex bench found that the question of jurisdiction had been answered twice, when the Court of Appeal granted leave in Kassim's appeal after leave was not granted by the High Court in Kuala Lumpur, and again by the appellate court, which heard Kassim's appeal and ruled his prosecution and arrest to be unlawful.

Justice Richard asked senior federal counsel Shamsul Bolhassan whether they had appealed to the Federal Court, when leave was granted at the Court of Appeal on the question of jurisdiction, to which the government lawyer replied in the negative, saying the matter was going to the High Court in Kuala Lumpur for the application to be heard on its merit.

The two questions of law posed before the Federal Court were:
  • Whether the civil court can review or cancel the prosecution done in a Syariah Court when the purported offence is against hukum syarak (Islamic precepts); and
     
  • Whether the circumstances of an investigation or arrest process for an offence that was not carried out in compliance with the procedures laid down in the relevant statute would render the charge defective.
Kassim's lawyer Rosli Dahlan (photo) said the two questions involved jurisdiction, which have been decided by the Court of Appeal when it granted leave and also when it heard the appeal on the merits.

Following the decision today, Rosli said they will go to the Syariah High Court on Aug 7 to formally inform the court of the Federal Court decision.

Rosli asked the syariah chief prosecutor and Jawi to use their discretion to properly withdraw the charge, so as to avoid embarrassment.

“Jawi can do so under Section 58 of the Federal Territory Syariah Administration Act. The syariah judge can also grant a discharge, not amounting to an acquittal, under Section 96 of the same Act,” he said.

Shamsul told Malaysiakini that the discretion is still with the chief syariah prosecutor.

According to Bernama, the court also ordered the appellants to pay costs of RM20,000 to Kassim.

Kassim was charged in the Syariah High Court in Putrajaya with three counts of deriding Islam and a charge of breaching a fatwa in a talk he gave in Putrajaya three years ago.
 
Following the talk, Kassim was arrested by Jawi at his house in Kulim, Kedah, taken to Penang and escorted on a flight to KLIA Sepang, where he was detained for more than 24 hours without legal representation.
Kassim challenged his arrest and the charges against him in the civil High Court, but failed. The court ruled that his remedy could only be found in the syariah court.

On appeal to the Court of Appeal, the octogenarian's arrest at his home in Kulim, Kedah, and bringing Kassim to Kuala Lumpur to be charged were declared illegal and the arrest was also ruled to be null and void.

Following that, the Court of Appeal also held that his arrest, detention and prosecution were null and void.

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