Muslim intellectual Kassim Ahmad lost an important legal challenge against Malaysia’s Federal Territories Islamic Department (JAWI) when a civil court ruled that the 82-year-old should sue if he wants his constitutional rights protected instead of demanding a judicial review.
According to High Court Judge Datuk Asmabi Mohamad, who said there are alternative solutions for the situation before her, Ahmad had insisted the courts revise the decision of an enforcement body of the Shariah Court.
“The applicant in this case is not without remedy,” she told a packed courtroom on January 6.
Mohamad said Ahmad could seek a private solution instead at a civil court over JAWI’s alleged illegal raid, arrest and detention. She explained that Ahmad would be able to demand exemplary, aggravated, punitive damages for the violation of his constitutional rights in that case.
In describing the broad implications of her ruling, Mohamad also said JAWI’s alleged unlawful conduct while harassing Ahmad had already taken place and was hence no longer a “live issue” for her to issue declaratory reliefs via a judicial review.
“I do not know why applicant refused to proceed with his prosecution in the Shariah Court,” she said when speaking of declaratory reliefs applied for by Ahmad.
Mohamad explained both the Shariah Appeal Court as well as the Shariah High Court have supervisory and revisionary powers, while citing Sections 51 and 53 of the Administration of Islamic Law Act, 1993.
“In view of the fact that matters fall within jurisdiction of the Shariah Court...therefore the best person to adjudicate on issues of Islamic precepts should be the Shariah Court and not this court,” she said, referring to the two charges against Ahmad — Sections 7(b) and 9 of the Shariah Criminal Offences Act, 1997.
As the respondents initially sought RM 5,000 for compensation, Ahmad’s lawyer Rosli Dahlan argued that her client should not be made to pay for his legal cost even, since it was a public interest case that involved the taxpayer-funded government against its citizens. Mohamad then ruled that there would be no order with regards to the costs incurred. She said she would issue the complete grounds of her decision when Ahmad appealed to a higher court. Dahlan confirmed that Ahmad would be appealing soon enough.
In March 2014, Ahmad was accused of insulting Islam and disobeying religious authorities at a seminar that took place a month earlier. The four respondents in Ahmad’s bid for a judicial review include prosecutor Ibrahim Deris, Datuk Seri Jamil Khir Baharom, minister in charge of Islamic Affairs, former Federal Territory Chief Syarie and the federal government. Ahmad’s challenge argued that the Islamic authorities had acted with irrationality, illegality, unconstitutionality, procedural impropriety, ultra vires and acted beyond designated powers, abused discretionary powers and proved to be unreasonable in exercising their powers.
Ahmad’s three-day trial at the Shariah Court is expected to commence on January 14, after which the civil court will hear his application for staying the prosecution until the dismissal of the plea at the Court of Appeal. The two Shariah charges against Ahmad require him to pay a maximum fine of RM 3,000 or serve imprisonment up to two years or do both.
Photo Credits: The Malaysian Insider
