KOTA KINABALU, SABAH – Sabah PAS Head of Legal Unit Hamid Ismail urge the new State Government to expedite the appointment of Sabah Chief Syarie Prosecutor because its absence will have adverse legal effect on the criminal prosecution of syariah offences throughout Sabah.
“I understand that there is already a candidate to fill that post. However, the previous state government refused was hesitate to appoint that candidate for unknown reasons. I hope the new state government will fill that position as soon as possible,” he said in a statement here, Wednesday.
He went on to say that Section 181 of the Syariah Criminal Procedure Enactment 2004 states that the Chief Syarie Prosecutor shall have the control and direction of all criminal prosecutions and proceedings under the enactment.
“Meanwhile Section 30(2) of the Syariah Courts Enactment 2004 provides that the Chief Syarie Prosecutor shall have power exercisable at his discretion to institute, conduct or discontinue any proceeding for an offence before any Syariah court.
“In simple words, all criminal prosecutions for Syariah offences in the syariah court, since the vacancy of that post, is unlawful and illegal,” he said.
He said in the absence of a Chief Syarie Prosecutor, there is no one in the prosecution unit of Sabah Islamic Affairs Department who has the power to institute or conduct any criminal proceeding in the syariah courts.
“A syarie prosecutor has no such powers because he or she is under the general control and direction of the Chief Syarie Prosecutor as stated in Section 30(4) of the Syariah Courts Enactment 2004.
“Thus, a syarie prosecutor derives his or her power from a Chief Syarie Prosecutor. Accordingly, without a Chief Syarie Prosecutor in the office, a syarie prosecutor has no authority to institute or conduct a criminal case,” he said.
He said he highlighted the issue last year to the previous state government but fell to deaf ears.
“The former Assistant Minister to the Chief Minister, Datuk Ariffin Mohd Arif, was aware about the seriousness of this issue because during the State Assembly sitting in August last year, he said, while tabling the Syariah Courts Enactment 2004 (Amendment) Bill, that the function of a Chief Syarie Prosecutor was important and critical as instruction to commence or discontinue any criminal proceeding in any criminal courts lied on the Chief Syarie Prosecutor.
“He also said that the absence of a Chief Syarie Prosecutor would cause proceedings in criminal cases could not be commenced or discontinued, and if the matter was prolonged, many syariah court cases would be delayed.
“I believe the new state government has no problem appointing a new Chief Syarie Prosecutor because the Syariah Court Enactment 2004 had been amended on Aug 7, 2017.
“The amendment is by substituting the words and sentence “a person who is qualified to be a Judge of the Syariah High Court to be the Chief Syarie Prosecutor” in Sub-section 30(1) of that enactment with the words and sentence “a fit and proper person amongst the members of the State of Sabah public service as the Chief Syarie Prosecutor.”
“With the amendment, appointing a Chief Syarie Prosecutor is no longer subject to the prerequisite of having served as a Syariah High Court judge, thereby making any qualified and competent state civil servants eligible for the post,” he said.