The Court of Appeal in a unanimously decision today ordered the High Court in Kuala Lumpur to hear the judicial review application filed by scholar Kassim Ahmad.

In ruling that the civil court has jurisdiction to hear matters pertaining to questionable actions by Islamic religious authorities, the appellate court ordered the case to be remitted to the High Court to hear its merits.

Justice Balia Yusof Wahi, who led the three-member panel, did not make an order as to costs. Sitting with him were Justice Mohtaruddin Baki and Justice Rohana Yusof.

Justice Balia said the court was satisfied that Kassim had passed the low threshold in establishing a prima facie case for the judicial review to be heard.

He said the application related to the defendant (the religious authorities), being a public body, for initiating proceeding against Kassim, after he was charged under the Syariah Criminal Offences (FT) Act.

'Appellant should not be shut off from remedy'

“The High Court judge concurred (in her judgment) that the issue is not confined solely to jurisdiction. The appellant is challenging the enforcement and administration of a public body. On this, the appellant should not be totally shut off from his remedy for judicial review and from ventilating the challenges,” the judge said.

The court, Justice Balia said, is also guided by the 1988 Supreme Court decision in the case of Mamat Daud, that an offence against an Islamic precept can be challenged by way of judicial review.

"We therefore allow the appeal and order is granted for leave (permission) to hear the merits. We set aside High Court order (that it does not have jurisdiction)," he ruled.

Kassim, was represented by Rosli Dahlan ( left ), Bahari Yeow and Ahmad Khubayb ( on the right ), while senior federal counsel Nor Hisham Ismail appeared for the Attorney-General's Chambers.  

Rosli also applied to the appellate court for a stay of Syariah High Court proceedings against Kassim, but this was objected to by Nor Hisham.

Following this, Justice Balia said he would order that an early date be fixed by the High Court.

High Court judge Justice Zaleha Yusof on July 14 rejected Kassim's application for a judicial review, following a preliminary objection by the Attorney-General’s Chambers that the court has no jurisdiction to hear the matter.

Kassim, 81, named Minister in the Prime Minister's Department Jamil Khir Baharom, the chief syariah prosecutor of the Federal Territories Islamic Affairs Department (Jawi)  and the Malaysian government as respondents when he filed the judicial review application last month.

He complained that Jawi acted overzealously in breaking down the door of his house in Kulim, Kedah, to arrest him and take him to Kuala Lumpur in March this year.

'Jawi has not authority in Kedah'

The octogenarian complained that Jawi had no authority to make the arrest as it  should be confined to the Federal Territory and the fatwa against his book was only applicable there and not in Kedah.

Kassim was charged in the Syariah High Court in Putrajaya on March 27 for with deriding Islam, under Section 7(b) of the Syariah Offences (Federal Territories) Enactment 1997, in his talk at the Yayasan Kepimpinan Perdana seminar, which was organised by former prime minister Dr Mahathir Mohamad in Putrajaya in February.

The scholar is charged with stating that people appear to idolise Prophet Muhammad and that the aurat of a woman does not include her hair.

He is also charged under Section 9 of the same enactment with violating the instructions of the religious authorities in delivering those views and for citing two books he authored, which have been banned by the Federal Territories Islamic authorities.

On May 6, the authorities levelled another charge against Kassim, but the charge was not read out in court when recording his plea.

In his judicial review application, Kassim is seeking several declarations: to quash the actions taken by Jawi, which includes the issue of the warrant of arrest against him; to set aside the charges he faces; to compel Jawi to give him the relevant documents pertaining to the charge; and to stop the authorities from prosecuting him.

He also sought a declaration that Jawi’s action was contrary to the Federal Constitution and a declaration that the Federal Territory fatwa is only applicable to those who live there and not in Kedah.