Mustapha Hussain J

(translation): This is an Application for a Writ of Prohibition against the Respondent under O.53 R.H.C. 1980.

The Applicant by his affidavit affirmed on March 27, 1983 in supporting his Motion and also by his accompanying Statement, stated that he had publicly declared and embraced the Ahmadhi sect on February 1, 1970. (Ahmadhi sect is also known as the Qadiani sect).

The Applicant was arrested by the officials of the Religious Department on charges of distributing religious pamphlets and documents relating to the Ahmadhi sect. The Applicant was charged at Kubang Pasu Syariah Court, Jitra for offences under s 163(1) and s.163(2) of the Administration of Muslim Law Enactment and his cases were transferred to the Alor Setar Kadi's Court and the hearing was fixed on April 16, 19, and 30, 1983. He is on bail now.

On March 21, 1983 the Applicant filed an ex-parte Notice of Motion applying for a Writ ofProhibition. The Motion was heard on April 9, 1983 when the court granted leave and a stay of the hearing of the cases against him at the Kadi's court, Alor Setar.

The Applicant's only ground is that by a Gazette Notification of the State of Kedah No. 286 dated June 4, 1981 the Fatwa issued by the Majlis Ugama Islam dated August 10, 1972 is binding on all Muslims resident in the State of Kedah. The Fatwa dated April 10, 1972 in short says that whosoever believes in the teachings of the Qadiani (Ahmadhi) sect is an apostate. Since the Applicant is a follower of the Ahmadhi sect and that the Majlis says that he is not a Muslim, therefore the Majlis Ugama Islam and its Syariah Courts have no jurisdiction to try him.

On the hearing of the Motion on April 16, 1983 both the parties agreed that the court write to the Muslim Religious Council of Kedah for their ruling whether the followers of the Ahmadhi sect is a Muslim or a non-Muslim.

The Muslim Religious Council replied and this was confirmed by the President of the Council and the Chairman of the Fatwa Committee who gave evidence in Court that a follower of the Ahmadhi sect is not a Muslim. Now, the Law

This Application is made to the High Court under s.25(2) of the Courts of Judicature Act 1964 where the High Court in its exercise of the powers of issuing prerogative writs can, in suitable cases and in particular for the protection of fundamental liberties enshrined in Part II of the Federal Constitution, issue orders against any person or authority.

The Kedah State Administration of Muslim Law Enactment 9 of 1962, section 41(3)(a) and (b) conferred a jurisdiction to the Kadi's or the Syariah Court only to Muslims. This means that non-Muslims, (and the Applicant is a non-Muslim as declared by the Majlis itself,) are outside the jurisdiction of the Majlis and its Syariah Courts.

This being so, the Application is therefore allowed. In fact in his written submission the learned Legal Adviser using his own words says "the Respondent (i.e. the Majlis Ugama Islam and the Chief Kadi) concede that the Applicant is not a Muslim and therefore is not subject to the jurisdiction of Mahkamah Syariah".

The Motion is allowed, a Writ of Prohibition is hereby issued prohibiting the Chief Kadi of Kedah, his agents and/or servants from hearing cases Jenayah 1/83, 2/83, 3/83 and 4/83 Syariah Court, Alor Setar.

No order as to costs.