PETALING JAYA: The Federal Court is set to rule on Thursday in a high-profile case involving a fatwa by the Selangor religious authorities that labelled women’s rights group Sisters in Islam Forum (Malaysia) (SIS) a “deviant” organisation.
SIS is appealing a 2023 Court of Appeal ruling that dismissed its challenge against a fatwa issued by the Selangor Islamic religious council (Mais) 11 years ago.
In 2014, Mais had decreed that SIS had deviated from the teachings of Islam by purportedly subscribing to “liberalism” and “religious pluralism”.
Case history and contentions
In October 2014, SIS, a company limited by guarantee established under the Companies Act 1965, filed for judicial review. It contended that the fatwa was unconstitutional and could not be imposed on a corporate entity governed by civil law.
The case has since evolved into a constitutional battle over whether religious edicts can be enforced against non-religious organisations, and whether the civil courts have jurisdiction to review them.
In its court filings, SIS also argued that certain terms used in the fatwa, such as “liberalism” and “pluralism”, were vague and undefined, making enforcement arbitrary and open to abuse.
The group questioned whether state religious authorities could direct federal bodies like the Malaysian Communications and Multimedia Commission (MCMC) to enforce such orders, raising concerns over the overlap of power between state religious authorities and federal jurisdiction.
In 2016, the High Court dismissed SIS’s leave application on jurisdictional grounds, but the Court of Appeal later reversed that decision, allowing the inter partes hearing to take place.
In 2019, the High Court heard the case on its merits and dismissed it, holding that the fatwa was not a final decision and, therefore, was not amenable to a judicial review.
In 2022, the Federal Court, on an application by SIS, declared Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 to be unconstitutional.
The provision had attempted to grant shariah courts the power to hear and decide judicial reviews against decisions made by the state’s religious councils or committees.
In March 2023, the Court of Appeal in a 2-1 decision, upheld the High Court’s 2019 ruling.
However, the dissenting judge on the panel ruled that a fatwa cannot be enforced on a company, as the shariah jurisdiction is only meant to attach to individuals who profess the Islamic faith.
Arguments in the Federal Court
In the Federal Court, SIS argued that the fatwa violated its constitutional rights to freedom of expression, association and religion.
It also said the fatwa was issued without due process, as the organisation was not given the opportunity to defend itself.
Mais and the state fatwa committee, for their part, argue that they had the necessary jurisdiction to issue the fatwa.
They claim the fatwa is consistent with Islamic teachings, and that SIS was merely seeking to undermine their religious authority.
