The Persecution of Kassim Ahmad: A-G Gani Patail loses again

July 24, 2014

by Din Merican

In the past two weeks, the mainstream media have been screaming the news that Kassim Ahmad had lost in his attempt to get leave to sue the Minister of Religious Affairs, the Syariah Chief Prosecutor and the Jabatan Agama Islam Wilayah Persekutuan (JAWI). It is as if they were gleeful that Kassim Ahmad had initially lost in the High Court and then failed to get a stay in the Court of Appeal.

The Malay media, especially Utusan Malaysia, portrayed that Kassim Ahmad will finally meet his doom in the Syariah Court for “menghina Islam”. That immediately made the already controversial Kassim Ahmad Islam’s Public Enemy No.1 in Malaysia.

But what stunned me most was that the Malay Muslim public was even quicker to label the counsel who acted for Kassim Ahmad as also “bersubahat” or an accomplice to an enemy of Islam. Thus it was that my young friend Lawyer Rosli Dahlan who acts for Kassim Ahmad ended up being painted negatively as if he too was an enemy of Islam. I know Rosli to be a deeply religious person, and that such remarks would hurt him.

What most people do not realize is that Rosli is the 1st batch of the law graduates of the International Islamic University (IIU). I know Rosli is proud of his alma mater and fiercely loyal to the concept of justice taught by his mentor, the late Professor Tan Sri Ahmad Ibrahim.

I know that because on the occasions that I get to speak to him about civil rights including when we had lunch with the former US Ambassador John R Mallot, Rosli was passionate about the Rule of Law and justice and insisted that these two concepts are not just Islamic concepts but are the demands of the Syariah. John and I found that very refreshing that a UIA graduate is not insisting on the importance of implementing Hudud but was more concerned about the justice that an Islamic system would bring.

That gave me an insight as to why Rosli would defend Kassim Ahmad and persevered even as he faced initial failures when the High Court rejected his bid to seek Judicial Review against the Minister Agama, the Chief Prosecutor and JAWI. But today is a different story.

Today, most alternative media reported that Rosli succeeded in persuading the Court of Appeal that Kassim Ahmad should be given leave to challenge Minister Agama, the Chief Prosecutor and JAWI. Today, the Court of Appeal unanimously directed the High Court to hear the judicial review application filed by scholar -researcher and public intellectual Kassim Ahmad.

Today, Rosli perseverance in fighting for Kassim’s case paid off. Today, Rosli won against the A-G in Kassim Ahmad’s case (Malaysiakini’s report below).

But, one of the reporters also whispered something to me that many people may have forgotten. This is the end of Ramadan. In 2007, at this time of Ramadan, Rosli was brutalized by the MACC and that started his on-going battles since then with the AG and others whom he called the “rogues in government”.

What the reporter whispered to me was that after Judge Vazeer Alam ruled that the AG is not immuned from legal action brought by Rosli, A-G Gani Patail has been avoiding going to trial. And yesterday, A-G Gani Patail succeeded in getting a Stay Order so that Rosli’s case against A-G Gani Patail and 11 others will not see the light of to trial. READ : https://dinmerican.wordpress.com/2014/04/11/a-g-gani-patail-is-not-above-the-law/

I was sad for Rosli, here he is successfully fighting Kassim Ahmad’s case, but , unknown to many he suffers another personal tragedy when his own case against AG Gani Patail cannot go on. But I know Rosli, he will not yield. He will not surrender. He will persevere. He is a fighter and I know he will fight to the end until he thinks justice has been served!

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Malaysiakini article on Kassim Ahmad’s Judicial Review bid

http://www.malaysiakini.com/news/269747

High Court must hear scholar’s review bid

by Hafiz Yatim@www.malaysiakini.com (07-24-14)

The Court of Appeal in a unanimously decision today ordered the High Court inKualaLumpur to hear the judicial review application filed by scholar Kassim Ahmad.In ruling that the civil court has jurisdiction to hear matters pertaining to questionable actions by Islamic religious authorities, the appellate court ordered the case to be remitted to the High Court to hear its merits.Justice Balia Yusof Wahi, who led the three-member panel, did not make an order as to costs. Sitting with him were Justice Mohtaruddin Baki and Justice Rohana Yusof.

Justice Balia said the court was satisfied that Kassim had passed the low threshold in establishing a prima facie case for the judicial review to be heard.He said the application related to the defendant (the religious authorities), being a public body, for initiating proceeding against Kassim, after he was charged under the Syariah Criminal Offences (FT) Act.

‘Appellant should not be shut off from remedy’

“The High Court judge concurred (in her judgment) that the issue is not confined solely to jurisdiction. The appellant is challenging the enforcement and administration of a public body. On this, the appellant should not be totally shut off from his remedy for judicial review and from ventilating the challenges,” the Judge said.The court, Justice Balia said, is also guided by the 1988 Supreme Court decision in the case of Mamat Daud, that an offence against an Islamic precept can be challenged by way of judicial review. “We therefore allow the appeal and order is granted for leave (permission) to hear the merits. We set aside High Court order (that it does not have jurisdiction),” he ruled.

Kassim, was represented by Rosli Dahlan , Bahari Yeow and Ahmad Khubayb, while senior Federal counsel Nor Hisham Ismail appeared for the Attorney-General’s Chambers.  Rosli also applied to the appellate court for a stay of Syariah High Court proceedings against Kassim, but this was objected to by Nor Hisham.

Following this, Justice Balia said he would order that an early date be fixed by the High Court. High Court judge Justice Zaleha Yusof on July 14 rejected Kassim’s application for a judicial review, following a preliminary objection by the Attorney-General’s Chambers that the court has no jurisdiction to hear the matter.

Kassim, 81, named Minister in the Prime Minister’s Department Jamil Khir Baharom, the Chief Syariah Prosecutor of the Federal Territories Islamic Affairs Department (JAWI)  and the Malaysian government as respondents when he filed the judicial review application last month.

He complained that JAWI acted overzealously in breaking down the door of his house in Kulim, Kedah, to arrest him and take him to Kuala Lumpur in March this year.

‘JAWI has not authority in Kedah’

The octogenarian complained that JAWI had no authority to make the arrest as it  should be confined to the Federal Territory and the fatwa against his book was only applicable there and not in Kedah.

Kassim was charged in the Syariah High Court in Putrajaya on March 27 for with deriding Islam, under Section 7(b) of the Syariah Offences (Federal Territories) Enactment 1997, in his talk at the Yayasan Kepimpinan Perdana seminar, which was organised by former Prime Minister Tun Dr Mahathir Mohamad in Putrajaya in February.

The scholar is charged with stating that people appear to idolise Prophet Muhammad and that the aurat of a woman does not include her hair. He is also charged under Section 9 of the same enactment with violating the instructions of the religious authorities in delivering those views and for citing two books he authored, which have been banned by the Federal Territories Islamic authorities.

On May 6, the authorities levelled another charge against Kassim, but the charge was not read out in court when recording his plea.

In his judicial review application, Kassim is seeking several declarations: to quash the actions taken by JAWI, which includes the issue of the warrant of arrest against him; to set aside the charges he faces; to compel JAWI to give him the relevant documents pertaining to the charge; and to stop the authorities from prosecuting him.

He also sought a declaration that JAWI’s action was contrary to the Federal Constitution and a declaration that the Federal Territory fatwa is only applicable to those who live there and not in Kedah.

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