PUTRAJAYA – The Court of Appeal today allowed the Selangor Islamic Religious Department’s (Jais) appeal to reinstate the high court’s ruling that struck down a provision in the state Shariah Criminal Procedure (Selangor) Enactment 2003 (SCPE) as being unconstitutional.
A three-member panel chaired by justice Datuk Azizah Nawawi, in a unanimous decision, ruled that Section 23 of the SCPE is not null and void.
“Section 23 of the SCPE allows the person arrested to be released on bail pending the completion of the investigation into the alleged offences. At the same time, Section 187 of the SCPE provides the necessary powers to impose conditions, including the sum of the bond and the sureties.
“As such, we are of the considered opinion that the high court judge was plainly wrong in her decision that Section 23 of the SCPE is akin to a remand order,” said justice Azizah, who sat with justices Datuk S. Nantha Balan and Datuk Hashim Hamzah when delivering the decision via online proceedings.
On April 14, 2022, judge Datuk Noorin Badaruddin made the ruling when she partly allowed a legal challenge by Abdul Kahar Ahmad and 13 others against their arrest by the state Islamic authorities on the night of September 20, 2020.
Jais, its director-general, the Selangor Islamic Religious Enforcement chief officer, Shah Alam lower shariah court judge Masnizar@Mohd Nizar Mohtar, the state government, and Shah Alam lower shariah court judge Shanizah Ngatiman, as the first through sixth appellants, appealed to set aside the decision.
Justice Azizah, in her judgement, said the high court judge has no jurisdiction to quash the orders of the shariah courts as the civil and shariah courts are two separate legal systems.
“The shariah courts are not inferior tribunals subject to judicial review pursuant to Order 53 Rules Of Courts (ROC) 2012, but are courts of competent jurisdiction. Therefore, the civil courts cannot review the decisions of the shariah courts pursuant to Order 53 ROC 2012.
“The high court in this present case can only declare the validity of Section 23 of the SCPE with the state government as the contradictor,” she said.
Therefore, justice Azizah said the court’s considered opinion was that the shariah court judges, were discharging their judicial functions when granting the said orders and are therefore protected under Section 76 of the Selangor Islamic Religious Administration Enactment 2003.
“In conclusion, we allow this appeal and set aside the decision of the judge dated April 14, 2022,” she said.
Meanwhile, the bench also set aside the high court ruling to order Jais and the state government to pay RM10,000 in damages each to Kahar and the 13 others.
Selangor legal adviser Datuk Salim Soib@Hamid represented the six appellants, while lawyer Fahri Azzat appeared for Kahar and 13 others.
Previously, Harian Metro and Berita Harian reported that Jais detained Kahar and the others at three separate locations in Selangor on September 20, 2020, over the allegation of a revival of the “Rasul Melayu” movement.
They were held between one and 99 days from September 21, 2020, to December 28, 2020, as they were unable to fulfil bail conditions.
However, until today, they have not been charged at the shariah court.
Following their release from the 2020 detention, Kahar and the 13 others filed a judicial review application at the civil court to challenge the validity of their arrest and detention, with some of them only released after 99 days. – August 30, 2023