According to lawyers who spoke to FMT, that decision also signifies that public authorities, bodies and persons tasked with the performance of public acts and duties, including state religious enforcement agencies like the Federal Territories Religious Department (Jawi) were subjected to judicial review.
The Court of Appeal ruling also revealed that shariah courts were state courts and have no similar judicial review powers like civil courts.
Public authorities will not enjoy any immunity from judicial review if any fundamental and constitutional rights are breached, the lawyers said, adding that state shariah laws meant for Muslims do not take away the jurisdiction of the civil courts to interpret state enactments.
Meanwhile, lawyer Rosli Dahlan, the lead counsel for Kassim, said it has been established that Jawi and other religious authorities were civil servants and therefore, subject to the same laws.
“Malaysia is a constitutional monarchy in which, by law, only the Rulers are exempt from supervision and control by the civil courts,” he said.
Yesterday, the Federal Court approved the findings of the Court of Appeal when it dismissed an application by Jawi for leave to appeal the ruling.
This means, the apex court would not hear the merit of Jawi’s appeal as the legal questions posed were not new.
Lawyer Fahri Azzat said Jawi prosecutors should drop the charges against Kassim, 83, as the ruling came from highest court in the land.
“It is also a reminder to religious authorities that there is a limit to their powers,” he said.
On March 26, 2014, Jawi enforcement officers raided Kassim’s house in Kulim, before arresting him and bringing him to Kuala Lumpur on a midnight flight.
Kassim was brought to their office in Jalan Duta, interrogated overnight and then charged at the Putrajaya Shariah Court.
The Kedah-based Kassim then filed a judicial review against the minister in charge of religious affairs, Jawi and the shariah chief prosecutor for conducting an illegal raid, arrest and prosecuting him.
A High Court rejected Kassim’s case but the Court of Appeal later overturned the decision and ruled that the civil court had jurisdiction to hear his complaints.
However, upon hearing the merits of the case, the High Court ruled that Kassim had not exhausted his legal avenues in the religious court.
The appeals court then held that the shariah offences against Kassim were unlawful as they relate to a fatwa in the Federal Territory, and this was not applicable to Muslims in Kedah.
Justice Vernon Ong Lam Kiat, who chaired a three-man Court of Appeal bench ruled that the arrest warrant on Kassim was also defective.
The court also found that Kassim was deprived of his constitutional right to consult a lawyer upon his arrest.
The court allowed the orders to quash the arrest warrant and the religious prosecution.
A High Court deputy registrar would now assess damages caused for embarrassment and trauma Kassim faced for the wrongful prosecution.
Kassim Ahmad’s ordeal over prosecution for shariah offence ends
https://www.freemalaysiatoday.com/category/nation/2015/12/21/court-of-appeal-rules-kassim-ahmads-arrest-illegal/