This article first appeared in The Edge Financial Daily, on December 22, 2015.

PUTRAJAYA: The arrest and detention of Muslim scholar and activist Dr Kassim Ahmad by the Federal Territories Islamic Religious Department (Jawi) in 2013 were illegal, the Court of Appeal ruled yesterday.

A three-man bench led by Vernon Ong Lam Kiat said the department had no jurisdiction over Kassim Ahmad, who is a resident in Kedah.

“We order that the arrest, detention and prosecution are null and void,” he said in allowing Kassim Ahmad’s appeal against a High Court ruling.

Kassim Ahmad’s immediate response to the ruling was to hope that Jawi would drop charges against him.

“Alhamdulillah, we have won and I hope [that] Jawi will withdraw the charges against me,” he said.

The bench also held that the civil High Court had supervisory jurisdiction over an inferior tribunal, including the Syariah Court when it had erred in law.

Kassim Ahmad was awarded RM20,000 in costs.

He had challenged Jawi over his arrest in a state outside the authority’s jurisdiction, claiming that it had acted illegally, unconstitutionally and beyond its powers.

Besides Jawi, he also named Datuk Seri Jamil Khir Baharom, the minister in charge of Islamic affairs, and then Federal Territory chief Syariah prosecutor, Ibrahim Deris, and the government.

Kassim Ahmad’s legal challenge against Jawi was dismissed by the Kuala Lumpur High Court on Jan 6.

He was also charged at the Putrajaya Syariah High Court with insulting Islam, over a seminar he attended that was launched by former prime minister Tun Dr Mahathir Mohamad.

Kassim Ahmad has held critical views of some hadiths (record of the sayings of Prophet Muhammad [swas]) and also accused some ulama (religious scholars) in Malaysia of enforcing a “priesthood caste”.

Ong said yesterday damages to Kassim Ahmad as a result of embarrassment and trauma following his arrest and prosecution would be assessed by a High Court registrar.

Ong, who sat with Datuk Abdul Rahman Sebli and Datuk Hasnah Mohamed Hashim, said Kassim Ahmad’s arrest warrant was defective, as the arresting officers did not comply with the Federal Territories Syariah criminal law.

“As a result, the arrest was null and void,” he said.

Ong said Kassim Ahmad was never produced before the nearest kadi (Syariah judge) soon after his arrest at his home in Kulim, Kedah, which was a mandatory requirement.

“Instead, he was taken to Penang and boarded a plane before brought to Putrajaya and [then] produced before a kadi,” he said.

He said Kassim Ahmad’s detention was also illegal as he was held under Jawi’s custody for more than 24 hours and deprived of a counsel of his choice.

“His right under Article 5 of the Federal Constitution was therefore violated,” he said.

Ong added that the charge that Kassim Ahmad disobeyed a fatwa (religious edict) by the Federal Religious Council was only binding on Muslims residing in that jurisdiction.

“The decision to charge the appellant (Kassim Ahmad) who is a resident of Kedah is wrong,” he added.

Kassim Ahmad, 83, was arrested on March 26, 2013, by Jawi enforcement officers who also searched his home.

In the scholar’s judicial review against Jawi, he sought an order to strike out the chief prosecutor’s decision on March 27 to prosecute him for allegedly insulting Islam and defying religious authorities.

He wanted his case in the Syariah Court to be suspended, pending the decision of the judicial review.

Kassim Ahmad has pleaded not guilty to both charges.

His case before the Syariah Court is scheduled for mention on Jan 18.

Also seen in court yesterday were former de facto law minister Datuk Zaid Ibrahim and activist Datin Paduka Marina Mahathir. — The Malaysian Insider