KUALA LUMPUR: Muslim scholar and activist Dr Kassim Ahmad lost his bid to challenge the Federal Territory Islamic Religious Department (Jawi) which charged him with insulting Islam after the High Court ruled yesterday that his case fell under the Syariah Court.

The civil court dismissed a judicial review application by Kassim, 82, who had challenged his arrest and prosecution in the Syariah Court by Jawi last year for allegedly insulting Islam and disobeying the religious authorities over his participation at a seminar.

“The applicant (Kassim) was challenging his detention and prosecution of enforcement authorities,” Judge Datuk Asmabi Mohamad said.

She said Kassim should have submitted to the Syariah Court and appealed if he was not happy with the outcome.

“He could have taken his case to the Syariah High Court and the Syariah Court of Appeal which have supervisory and revisionary powers.”

Kassim was first charged at the Syariah High Court in Putrajaya in March last year.

Asmabi said Kassim’s judicial review application was in fact directed at Jawi and its syariah chief prosecutor, and the mode of challenging them was wrong.

“Since the challenge is against the prosecution agency, a judicial review is not amenable as this is not an administrative action,” she said.

Asmabi said Kassim’s cause of action against Jawi and the chief prosecutor was by way of private law if his rights had been infringed.

This means that Kassim should have filed a civil suit and asked for damages as a result of the arrest and prosecution, adding that Kassim was still within the time frame to file the suit against the relevant parties.

An aggrieved person has up to three years to file lawsuits against public authorities like Jawi and the chief prosecutor.

The judge, who only delivered an oral ruling, wondered why Kassim came to the civil court when it was clear that the Syariah Court had jurisdiction to try the offences he was charged with.

On March 26, Jawi enforcement officers searched and arrested Kassim at his home in Kulim, Kedah, for allegedly insulting Islam and defying religious authorities.

Asmabi fixed Jan 12 to hear a stay application of her ruling pending Kassim’s appeal to the Court of Appeal.

Lawyer Rosli Dahlan, who appeared for Kassim, later told reporters that the notice of appeal would be filed soon.

Former de facto law minister Datuk Zaid Ibrahim, who was present in court yesterday, said he was not surprised with the court’s decision.

“I have always been taught that there is one system in this country. The higher court is the civil court and the Syariah Court is only a subordinate court,” he said.

Zaid said it was disappointing for the judge to declare that there were two legal systems and that Kassim had to go to the religious court to seek remedy. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on January 7, 2015.