PUTRAJAYA, 26 Sept 2008: The Federal Court declared today that the prosecution of Abdul Kahar Ahmad under the Selangor Syariah Enactment, for proclaiming himself a prophet, was valid.
It also made similar rulings in respect of three others — Mazli Mansor (deceased) and Mat Razali Kasan, who were Kahar’s followers, and Sulaiman Takrib, who was a member of the Ayah Pin sect — who were challenging their prosecution under the Selangor and Terengganu Syariah enactments respectively.
Chief Justice Tun Abdul Hamid Mohamad said in his judgement that the sections under both Syariah enactments challenged by the four men were valid laws.
“State legislatures may create offences and punishment of offences on persons professing Islam and offences going against the precepts of Islam,” he said.
“Arguments that laws controlling the propagation of doctrines and beliefs [were] unconstitutional on the grounds that [they were] inconsistent with Article 11 of the Federal Constitution on the freedom to profess any religion cannot stand because state legislatures can make laws to control propagation of doctrines and beliefs.”
Kahar, 57, Mazli, 49, and Razali, 44, had sought a declaration that Sections 7, 8(a), 10 (b), 12 and 13 of the Selangor Syariah Criminal Enactment 1995 and Section 49 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 were invalid.
Kahar from Kampung Kemensah, Ampang, was charged under the Selangor Syariah Criminal Enactment at the Shah Alam Syariah High Court with declaring himself a prophet, spreading deviationist teachings, insulting and breaching Islamic teachings and acting against the edict and mufti.
Sulaiman, 59, is facing charges in the Besut Syariah Lower Court, for acting in a manner which insulted religious authorities by disobeying the fatwa that the teachings propagated by Ariffin Mohamad or Ayah Pin, 65, were false, deviationist and digressing and could threaten public order and destroy the faith of Muslims.
He had challenged the constitutionality of Sections 10 and 14 of the Syariah Criminal Offences (Discretionary Penalty) (Terengganu) Enactment 2001 and Section 51 of the Administration of Islamic Religious Affairs (Terengganu) Enactment 2001.
The three-man bench, comprising Hamid, Court of Appeal president Tan Sri Zaki Azmi and Justice Datuk Zulkefli Ahmad Makinudin, dismissed their applications unanimously.
Hamid’s 40-page judgement was read out in open court by deputy registrar Norhayati Mat while deputy registrar Maziah Joary Mohd Tajudin read out Zaki’s judgement.
In Sulaiman’s case, Hamid said the fatwa committee was only given the power to prepare a fatwa on any unsettled or controversial question relating “Hukum Syarak” and was not creating offences as contended by the counsel representing the four men.
He said the Terengganu State Legislative Assembly created the criminal offence and fixed the punishment for the offence.
He also rejected the counsel’s argument that the impugned sections were not offences against the precepts of Islam which were confined to the five pillars of Islam.
The court had heard the opinions of three experts on Islam, namely Tan Sri Sheikh Ghazali Abdul Rahman, Professor Dr Mohd Kamal Hassan and Professor Muhammad Hashim Kamali, on the definition of the precepts of Islam.
Hamid said he preferred the “broader views” of Sheikh Ghazali and Kamal, that the precepts were not just confined to the five pillars of Islam.
Hamid said the offences in the impugned sections were offences against the precepts of Islam, specifically covering Muslims only and pertaining to Islam and could not be considered as criminal law.
Meanwhile, Zaki said the three experts had agreed that the term “precepts of Islam” included the teachings in the Quran and Sunnah.
He also said that once a fatwa was made, any person who failed to comply with that fatwa would commit the offence provided for under Section 10 of the Syariah Criminal Offences (Discretionary Penalty) (Terengganu) Enactment 2001.
“Section 10 of the enactment makes it an offence for a Muslim to defy, disobey or dispute the orders or directions of the sultan as head of the religion of Islam, the majlis or mufti which [are] given by way of fatwa,” he said. — Bernama
