A lawyer appearing for scholar Kassim Ahmad said the arrest and charge of Kassim by the Federal Territory Islamic Affairs Department (Jawi) last March were illegal as they did not follow the required procedures under the law.

Lawyer Rosli Dahlan, appearing for the octogenarian, said while Jawi’s jurisdiction is only within the Federal Territory, it had encroached into Kedah by arresting Kassim, and then bringing him to Penang to board an airplane which landed at the Low-Cost Carrier Terminal in Sepang, which is under the jurisdiction of Selangor.

He said in this case, the arrest warrant on the 82-year-old scholar was issued by the Lower Syariah Court, whereas the charge he faced is under Section 9 of the Federal Territory Syariah Offences Act, which comes under the purview of the Syariah High Court.

“The Jawi chief prosecutor had admitted the offence is under the Syariah High Court and not the Syariah Lower Court.

“In these circumstances, the Syariah Lower Court is incapable of issuing any warrant to arrest Kassim to be produced before that Syariah Lower Court, which has no jurisdiction to hear the matter.

“Although the prosecutor said Jawi enforcement officers were accompanied by their Kedah counterparts, Kassim was not produced to the Kedah Syariah High Court to institute the warrant.

“Furthermore, were there enforcement officers from Penang and Selangor when Kassim was brought to those jurisdictions? This renders the arrest illegal,” Rosli ( right ) said.

To make matters worse, he said, Kassim was produced before the Putrajaya Lower Syariah Court where he was charged, instead of he being taken to the Syariah High Court to be charged.

Rosli said the Lower Syariah Court can only impose bail of RM2,000 and below but in this case, the court imposed bail of RM3,000 on Kassim, which is above its jurisdiction.

This, he added, made the charging of the 82 year-old man last March unlawful, which should be subject to review by this court.

Rosli further questioned the manner of Jawi’s treatment of Kassim due to his age, where he was subject to detention for 27 hours after being picked up from his home, and then produced in the Lower Syariah Court the next afternoon.

They even broke the door of his house to arrest Kassim, he added.

Kassim was initially charged in the Lower Syariah Court, with two charges of deriding Islam, before being charged again in the Putrajaya Syariah High Court. Another charge was levelled on the octogenarian but not read out.

 

At that time when Kassim was brought for bail on March 27, there was no Syariah High Court judge available.

 

Review of charges

The scholar is applying for a review of the three charges imposed on him with the view to quash the charges and the warrant of arrest issued.

 

Kassim named the Minister in the Prime Minister's Department Jamil Khir Baharom ( left ), the chief syariah prosecutor of Jawi, Jawi, and the Malaysian government as respondents.

 

The High Court in Kuala Lumpur initially did not grant permission to hear the judicial review, saying that it did not have jurisdiction .

However, Kassim obtained permission from the Court of Appeal, which ruled that the civil court has jurisdiction to hear matters pertaining to questionable actions by Islamic religious authorities.

 

This resulted in the judicial review being heard before KL High Court judge Justice Asmabi Mohamad.

 

Rosli said the action of Jawi's chief prosecutor was tainted by illegality, irrationality, procedural impropriety, and was unconstitutional as it violated Kassim's rights under the Federal Constitution. jawi had also acted ultra vires (beyond its powers).

There was also abuse of discretionary powers or process, and unreasonable exercise of power.

Questions on complainant

Rosli said there were also questions on who actually made the complaint against Kassim, because when his lawyers asked for the documents, Jawi showed that the complainant was a Jawi officer itself but there were different dates on the complaint made.

 

There are also questions surrounding the date of the complaint, as to whether it was made before or after the lawyers demanded the documents.

 

The lawyer said there was no doubt the civil High Court could get involved to resolve such issues as it is a superior court established under the Federal Constitution, and it has the power to review the decision made by the authorities.

 

This, he added is in contrast with the Syariah High Court, which is a state court established by state legislation and does not have the power to review.

 

Rosli further said the civil High Court is also vested with the necessary supervisory powers to scrutinise the decisions made by the authorities in their performance of public acts and duties.

 

'Syariah has exclusive jurisdiction'

 

Senior federal counsel Suzana Atan, submitted that based on Article 74 where the Ninth schedule states if an offence committed against the Islamic religion, then the Syariah Court should hear the matter.

 

“The Syariah Court has the exclusive jurisdiction in matters conccerning Islam,” she said, adding that the court was not bound by the Court of Appeal decision which states civil courts can intervene in matters pertaining to prosecution of someone under the Syariah law.

Federal counsel Maisarah Juhari meanwhile submitted that the arrest and charge on Kassim was lawful in nature.

 

She said that Kassim was told on the grounds of his arrest, which he acknowledged and there was no denial on this.

 

“Seeking a declaration to quash the warrant of arrest and also his charge at the Lower Syariah Court being unlawful had become academic as the applicant (Kassim) was charged in the Syariah High Court,” she added.

 

Maisarah also told the High Court that if Kassim was not satisfied with the charge, he could mount the challenge at the Syariah High Court, which she claims also had revisionary powers.

 

“Syariah High Court has power and jurisdiction to make the relevant direction as justice is required,” she emphasised.

 

The federal counsel said that the Syariah Lower Court can impose any bail amount as was required and it should not be limited to RM2000, where the chief syariah prosecuting officer can also ask any amount.

 

She also said Kassim's detention was not 27 hours as alleged by Rosli but less than 24 hours as the arrest was made sometime at 3.30pm on March 26.

However, Rosli pointed out that the prosecutor's document raised questions on the arrest, as the police report states they were at Kassim's house at 12.45pm, while their affidavit states it was 11.30am that same day.

 

Justice Asmabi fixed Dec 19 for decision on the matter.