KUALA LUMPUR (Aug 22): The High Court here on Monday (Aug 22) granted leave (permission) to Petaling Jaya Member of Parliament Maria Chin Abdullah to initiate judicial review proceedings to challenge the shariah authorities' move to cite her for contempt.
This follows a statement she issued three years ago criticising the Federal Territory Shariah Court's administration of justice for sentencing Emilia Hanafi, the ex-wife of Naza Group chairman Datuk SM Faisal SM Nasimuddin, to seven days' jail for not abiding by the shariah court order regarding visitation rights to the businessman — who is the father of the couple's three children — and rescheduling those visits on her own.
Maria named the minister in the Prime Minister's Department (religious affairs), the Federal Territory Shariah Judiciary Department and the Federal Territory Islamic Council to challenge the contempt proceedings against her that were initiated by the businessman.
In her application, Maria highlighted the purported procedural improprieties committed by SM Faisal in misleading the Shariah High Court to grant the ex was parte committal order against her, allegedly for disrupting the administration of justice. She also raised the issues of illegality, ultra vires (beyond the powers), mala fide (in bad faith), abuse of process, perversity and unconstitutionality of the committal proceedings brought against her.
Judge Datuk Wan Ahmad Farid Wan Salleh in granting leave also granted a stay order against the Federal Territory Shariah Court from implementing the contempt proceedings against Maria.
In addition, the court also did not grant an application for SM Faisal to intervene in the judicial review application.
In granting leave, Wan Ahmad Farid noted that Maria is not challenging the precepts of Islam, but challenging the procedures of which she is faced with contempt.
The judge added that the federal lawmaker is not challenging any part of the Islamic law, but mainly the jurisdiction of the shariah courts as prescribed under Section 229 of the Shariah Court Civil Procedure (Federal Territories) Act 1998 (SCCPA).
He also ruled that there are questions of law which the court has to determine, and said Maria's application did not offend Article 121 (1A) of the Federal Constitution (regarding the jurisdiction of the shariah court).
“The contempt proceedings under [Section] 229 [of the] SCCPA cannot by any legal imagination be construed as within the ambit of the process of Islam. When the constitutional right of the citizen is at stake, and he or she comes to the court seeking relief, it no longer matters whether she is a Member of Parliament or a street hawker. The court cannot stand idly by.
“This is not an affront challenge to Islam, and this court finds that the application is not frivolous, vexatious or an abuse of the court process. For this purpose, the court grants the leave application,” the judge said.
Following this, Wan Ahmad Farid fixed Sept 15 for case management for the court to possibly fix a date to hear the substantive matter.
In judicial review applications, leave (permission) has to be gained by the court, before the merits of the challenge on the authorities is heard.
Emilia underwent the jail sentence earlier this year, while Maria herself was found guilty of contempt by the Shariah Court of Appeal and sentenced to seven days' jail but allowed a stay of execution.
Maria was represented by counsel Rosli Dahlan, along with Zeti Zulfah Hassan @ Zulkifli, Kong Xin Qing, Amiratu Al Amirat Saleh Garbaa and Khairul Izzat Azmi, while senior federal counsel Ahmad Hanir Hambaly appeared for the Attorney General's Chambers.
Senior counsel Datuk Sulaiman Abdullah, Datuk Akberdin Abdul Kader and Ummi Kartini Abd Latiff appeared for SM Faisal.