ABDUL KAHAR BIN AHMAD v KETUA PENDAKWA SYARIE NEGERI SELANGOR [2016] 4 SHLR 55

ABDUL KAHAR BIN AHMAD v KETUA PENDAKWA SYARIE NEGERI SELANGOR [2016] 4 SHLR 55

Syariah Court of Appeal (Shah Alam)

(Offence of False Allegation – False Doctrine)

Facts

1. The Accused was charged with five (5) offences related to spreading and disseminating false doctrines, making derogatory false claims that could lead to a negative perception of Islam, causing contempt towards Islamic religious authorities, and expressing views against the fatwa.

2.  The five (5) offences are outlined as follows:

(a) Under Section 7 (1) of Syariah Criminal Offences (Selangor) Enactment 1995 (the ‘Enactment’), the Accused was charged with promoting the offence of false doctrine;

(b) Under Section 8 (a) of the Enactment, the Accused was charged with making a false claim by declaring himself as the “Malay Prophet”;

(c) The Accused was also charged with insulting or bringing the religion of Islam into contempt as provided in Section 10 of the Enactment;

(d) Section 12 of the Enactment was charged upon the Accused for the contempt of religious authorities; and

(e) The Accused was charged under Section 13 of the Enactment for the offence regarding the opinion contrary to the fatwa.

3. On 21 October 2010, the Syariah High Court Shah Alam found the Accused was guilty of all five (5) offences.  Then, the Accused appealed.

4. On 6 Mac 2012, the Syariah Court of Appeal Shah Alam dismissed the appeal made by the Accused and affirmed the decision by the Syariah High Court Shah Alam.

5.  Consequently, the Chief Judge of Syariah Court of Selangor applied to review the penalties imposed on the Accused by the Syariah Court of Appeal for the offence relating to a false claim by declaring himself as the “Malay Prophet” under Section 8(a) of the Enactment.

6.  The appeal was prompted by the trial judge’s decision, who had imposed additional punishment apart from what had been provided under Section 8 (a) of the Enactment.  Specifically, the trial judge had also ordered the Accused to undergo the purification of faith as provided in Section 54 of the Enactment.

Issue

1. Whether the Court can impose the execution of order under Section 54 of the Enactment for the purpose of purification of faith on the Accused?

2.  Whether the Chief Judge of Selangor Syariah Court can review a decision which was made by another Syariah Court of Appeal Judge (same level)?

Ratios

1. Whether the Court can impose the execution of order under Section 54 of the Enactment for the purpose of purification of faith on the Accused?

(a) Section 8 of the Enactment provides for the offence of false claim which is contrary to Islamic teachings.  The provisions is as highlighted as follows:

“Section 8.  False claim.

Any person who-

(a)  declares himself or any other person to be a prophet, Imam Mahadi or wali; or

(b)  states or claims that he or some other person knows of events or matters which are beyond the comprehension or knowledge of human beings,

such declaration, statement or claim being false and contrary to the teachings of Islam, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.”

(b)  While Section 54 of the Enactment provides that –

“Section 54.  Power of Court to commit convicted person to approved rehabilitation centre or home.

(1)  If any Court has convicted any person of an offence under Part II or under Section 9, 10 or 11, such Court may, in lieu of the punishment specified for such offence, order such person to undergo counselling or rehabilitation in an approved rehabilitation centre for such period not exceeding six months as may be specified in such order.

(2)  If any Court has convicted any female person of an offence under Part IV, such Court may, in lieu of the punishment specified for such offence, order such female person to be committed to an approved home or such period not exceeding six months as may be specified in such order.”

(c) At the Syariah High Court,  however, the trial judge had imposed the additional punishment aside from what is provided in Section 8 (a) of the Enactment.

(d) As a result, the Accused was ordered to undergo the purification of faith as provided under Section 54 (1) of the Enactment.

(e) In regard to the application of that Section 54, the Court was of the view that the provision clearly provides that the counselling or rehabilitation order shall be in addition to the punishment as per the main provision of law in Section 8 of the Enactment.

(f) It means that the counselling or rehabilitation punishment must be separated and not concurrent with the prescribed punishment as enunciated in Section 8 of the Enactment.

(g) Therefore, the Syariah Court of Appeal held that the trial Court had mistakenly ordered for the Accused to be sent to Pusat Pemurnian Akidah Baitul Iman, Hulu Yam Bharu, Selangor, to participate in the recovery of faith (intifadah) during the six months period of imprisonment.

(h) Hence, the counselling or rehabilitation order should commence after the completion of the imprisonment sentence, and not during the actual term of the imprisonment.

(i) The Court also referred to the case of Ketua Pendakwa Syarie lwn Ahmad Rashid JH Jld 10 Bhg (1) 113 in which the Syariah Appeal Court of Negeri Sembilan upheld the trial judge’s decision to acquit the Accused, despite multiple procedural irregularities during the trial that led the case to a re-trial.   In the same case, Tan Sri Prof Ahmad Ibrahim delivered his judgment, as follows:

“Even though we agree that there have been failures to adhere to the prescribed procedures for the trial in this case, as argued by the prosecution, we are of the opinion that the accused persons should not be held accountable.  If this case were ordered for a re-trial, it would be unfair to the accused persons.  Therefore, we have decided that the decision of His Lordship the Judge should be upheld.”

(j) In the present appeal, the Court decided that the Accused had undergone a prison sentence carried out by the Prison Authority.  Hence, although an error concerning the order of counselling or rehabilitation centre towards the Accused caused the inability for the order to be executed, the Accused could not be held liable.

(k) Hence, the Court found that the issue regarding the execution of additional punishment under Section 54 for the purpose of purification of faith was not raised by the Accused in the petition, but by the Chief Judge of Syariah Court Selangor.  Therefore, it does not constitute as an issue in the said appeal.

2. Whether the Chief Judge of Selangor Syariah Court can review a decision which was made by another Syariah Court of Appeal Judge (same level)?

(a) The Court referred to the opinion of Abdul Karim Zaidan in the book of Nizam al-Qada’ Fi Syariat al-Islamiy which provides that –

“The authorities have the power to appoint judges in three levels and determine their respective jurisdictions as follows:

First: the judges who deliver verdicts on the charges of cases that they preside, and they do not have the right to re-preside the same cases for any reason whatsoever.  We refer to them as the ‘First-Level Judges’.

Second: the judges who review or examine the decisions of the first-level judges, either all the decisions or any part of them.  Among their responsibilities is to confirm and support those decisions if they deem them correct and to annul and issue new sentences so to replace the annulled ones if they believe it is necessary.  We call judges of this category as the ‘Second-Level Judges’ or Review Judges.

Third: the judges who review any part of the decisions made by the first-level judges and all or most of the sentences issued by the second-level judges.   Should the sentences conform to the Islamic law, the same shall be affirmed and those contrary to the Islamic law shall be annulled.  Upon annulment, they shall issue reasonable sentences to replace the annulled ones.  Except when they consider it is necessary to refer the case back to the court that issued the original sentence for a re-hearing based on the procedure prescribed by these judges.  We call them as the ‘Third-Level Judges’ or annulment and affirmation judges.

The sentences and decisions issued by the annulment and affirmation judges shall not be subject to any re-examination except under certain limited circumstances as determined by the authorities. Request for review of these sentences shall come from the concerned party within a specified time limit and shall be presented to the same annulment and affirmation judges or to another special panel of those judges, whose jurisdiction includes re-evaluating these sentences.”

(b) The Court was of the view that the Syariah principles only allow the decision of the highest court to be reviewed by the same judge or other agencies or tribunal with the condition that the power is expressly provided for by the ruler.

(c) However, in this case, no special power given to the Court.

(d) Therefore, the Court found that the Syariah Court of Appeal (Shah Alam) did not have the power to review the orders the Syariah Court of Appeal judge of issued on the same level.

Decision       The Court held that the review application by the Chief Judge of Selangor Syariah Court to be dismissed.
Key Take Away

1. In most states of Malaysia, the Syariah Court of Appeal is the highest court in the Syariah Court system.

2. However, there might be limited circumstances under which a Chief Judge of a Syariah Court of Appeal could review a decision made by another Syariah Court of Appeal judge of the same level.

3. This is because the decisions made by the Syariah Court of Appeal are considered final within the Syariah Court system.

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