Jawi broke ‘every principle’ of judicial review with speedy prosecution of Kassim Ahmad, court told

(Malay Mail Online) – The Federal Territories Islamic Department (Jawi) had acted illegally and breached all the “principles” for a judicial review when it nabbed and charged the ageing Muslim intellectual Kassim Ahmad for allegedly insulting Islam, the civil court was told today.

Kassim’s lawyer Rosli Dahlan (pic) listed down all eight grounds that form the basis of his 82-year-old client’s legal challenge namely illegality, irrationality, procedural impropriety, unconstitutionality, ultra vires or acting beyond powers, abuse of discretionary power and unreasonable exercise of power.

“In other words, they violated every principle of judicial review,” he said, highlighting that other cases normally involve only a few grounds.

Earlier in the hearing, Rosli told the court that the warrant of arrest and the search warrant used by Jawi were defective, arguing that this would turn the overnight detention and subsequent prosecution of Kassim into a similarly “illegal” move.

“Principle of law is when something is illegal, null and void, everything that flows from it will be illegal, null and void,” he said.

According to Rosli, Jawi had wrongfully crossed borders and encroached into the jurisdiction of other states when it raided Kassim’s house in Kedah before hauling the octogenarian to Penang and then putting him on a late-night flight that landed in Selangor.

The lawyer said the arrest warrant was defective as it did not carry the Shariah court’s endorsement that would allow Jawi to cross to Kedah and serve it to Kassim beyond its jurisdiction, besides being wrongly-worded to take him to Jawi’s office where he was questioned and detained briefly instead of sent directly to the courts.

The warrant was also obtained from a Shariah Subordinate Court when the alleged offence was a Shariah High Court offence, Rosli said as he claimed that the chief Syarie prosecutor had knowingly done so “recklessly and in blatant disregard of the law”.

Rosli also pointed out that Jawi needed to have a “first information report” or public complaint before it could start investigations, but said the religious body had refused to provide or produce the document.

Instead, Jawi only produced a different document four months later as an “afterthought”, Rosli said.

He argued that this “Form 5” for information provided to religious enforcement officers also did not comply with Section 54 of the Federal Territory Criminal Procedure Code, as among other things, the name of the purported informant was not disclosed.

“I say the document is suspect, because (you) can see the date has been tampered,” he claimed, saying that it backs his claim that there is “an attempt to fix someone”.

The chief Syarie prosecutor had wrongly brought Kassim before the Shariah Subordinate Court instead of charging him at the Shariah High Court, the lawyer also said.

Rosli also argued that Jawi and the chief Syarie prosecutor had acted disproportionately, highlighting that the latter had asked for one bailor each for each of the three charges against Kassim.

“If 100 charges, 100 bailors?” Rosli asked, after giving a hypothetical scenario.

He also said that the prosecutor had asked for the RM6,000 bond to be paid by cash and for each bailor to be a Federal Territories resident.

The four respondents in Kassim’s case are the minister in charge of Islamic affairs Datuk Seri Jamil Khir Baharom, Jawi, then Federal Territory chief Syarie Prosecutor Ibrahim Deris and the government.

The hearing before High Court judge Datuk Asmabi Mohamad resumes this afternoon.

The government lawyers representing the four respondents are Suzana Atan and Maisarah Juhari.

In March, Kassim was charged at the Shariah High Court in Putrajaya with insulting Islam and defying religious authorities at a seminar in February that was officiated by former prime minister Tun Dr Mahathir Mohamad.

Kassim had pleaded not guilty to both charges under Section 7(b) and Section 9 of the Shariah Criminal Offences (Federal Territories) Act 1997 that both carry a maximum fine of RM3,000 or imprisonment up to two years, or both.

At the seminar in Putrajaya on February 15 and February 16, Kassim allegedly questioned the use of hadith (a collection of sayings and deeds attributed to Prophet Muhammad) to interpret the Quran, as well as the headscarf commonly worn by Muslim women, as he allegedly said hair was not part of the “aurat” that must be covered up.

The scholar and author, who had written a controversial book in 1986 titled “Hadith: A Re-Evaluation” that got banned, was also accused of questioning the beatification of Prophet Muhammad.

The trial at the Shariah court is set to run from January 14 to 16.