PUTRAJAYA (Jan 10): The Federal Court on Tuesday (Jan 10) dismissed an application by Hisham Halim, the son of businessman Tan Sri Halim Mohammad, to gain leave (permission) to initiate contempt proceedings against former chief judge of the Shariah Court Datuk Dr Mohd Na’im Mokhtar, who is now the religious affairs minister.
A three-member bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, ruled that in context of the WhatsApp message that Mohd Na’im delivered in 2020 to several state shariah judges, the apex court does not agree with the connotation accorded, and does not think that this falls in the same category of contempt of court in the Malaysiakini case and the Leap Modulation Sdn Bhd case (where a lawyer was found in contempt).
“The court dismissed the application with no order as to costs,” she said.
Sitting with her were Federal Court judges Datuk Nallini Pathmanathan and Datuk Vernon Ong Lam Kiat.
Hisham, 40, wanted to cite the then chief Shariah Court judge for contempt over the contents of the WhatsApp message that were alleged to have disrupted the administration of justice.
This follows Hisham’s civil lawyers having managed to gain leave for a stay of all Shariah Court proceedings granted by Datuk Ahmad Kamal Md Shahid, in a divorce and custody case.
This resulted in Na’im to WhatsApp on Dec 16, 2020 to several state shariah chief judges, saying: "Dukacita dimaklumkan pada hari semalam, Hakim Kamal telah mengeluarkan satu perintah injunction (halangan) hakim Mahkamah Rayuan Shariah kita bersidang di Mahkamah Rayuan Shariah KL.
(It is sad to note that Judge Kamal had issued an injunction to prevent the Shariah Court of Appeal judges from having a proceeding in the Kuala Lumpur Shariah Court of Appeal.)
"Seperti yang dijelaskan sebelum ini, kedua dua semakan ini dengan jelas telah menyebabkan institusi kehakiman shariah ‘kita akan disembelih’ oleh hakim hakim mahkamah sivil."
(As mentioned previously, the two review applications [filed by Hisham] had caused the shariah judiciary institution to be slaughtered by judges of the civil court — the alleged contempt phrase.)
Hisham’s counsel Datuk Malik Imtiaz Sarwar, who appeared with Nizam Bashir, told the court the issue was made worse when their client got to know about the statement issued by Na’im.
“They were fighting words, and the remarks were quite harsh and directed to mean the civil court decision was as if slaughtering the shariah institution. He should not be using words like this,” he said.
Malik said it was sufficient that their client had proven that the respondent (Na’im) had a case to answer for the court to give leave.
He added that at the time, Na’im was the chief judge of the shariah system, and he was addressing as if the civil superior court was their enemy.
Malik added that normally, the Attorney General's Chambers (AGC) would be called in to initiate contempt proceedings, but here it was representing the respondent.
Tengku Maimun said the AGC was called by the court to help clarify the matter.
Senior federal counsels Suzana Atan and Ahmad Hanir Hambaly, who were called in by the court, said this was an internal communication via WhatsApp between Na’im and the shariah judges that had been leaked.
“This was an internal message and not published by the respondent (Na’im), as this was purportedly put up by a site called 'Malaysia report'. He (Na’im) was not the one who published it, and we say that what was printed was a lack of particulars.
“It was not the respondent who published this. This case can be clearly distinguished from the Malaysiakini and Leap Modulation cases,” she added.
In the Malaysiakini case, the news portal was fined by the apex court for accusing the chief justice of corruption, while in the Leap Modulation case, a lawyer had accused a fear of corruption among Federal Court judges.
