On 21 March 2023, the Court of Appeal in Malaysia – by a 2-1 majority – upheld a decision of the Malaysian High Court dismissing a judicial review application brought by a company challenging a fatwa which declared the company to be ‘deviant’ from the teachings of Islam.
The main appellant, SIS Forum (Malaysia) Berhad (‘SIS Forum’), was a company limited by guarantee. Sisters in Islam (‘SIS’) was founded as an NGO which advocates for Muslim women’s rights and challenges Shariah law and policies that it deems to be discriminating against women. The company and the NGO are connected and they share board members.
A fatwa is a source of rules in Islamic law derived from the opinion of authoritative and qualified bodies. In July 2014, the impugned fatwa was issued by the respondents (the Selangor Fatwa Committee, Selangor Islamic Religious Council, and Selangor state government). It declared that ‘SIS Forum and any individuals, organisations or institutions holding on to “liberalism and religious pluralism beliefs” [were] deviant from the teachings of Islam’. The fatwa was published pursuant to section 47 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (‘Selangor 2003 Enactment’), with an aim to ‘curb the spreading of “liberalism and religious pluralism beliefs”’.
Under the impugned fatwa, any publications with elements of liberalism and religious pluralism should be “diharamkan” (banned/made forbidden) and can be seized. Further, the Malaysian Communications and Multimedia Commission were to block any social media websites which go against the teachings of Islam.
The key issues in the case were: (i) whether the judicial review of the fatwa fell within the competence of the civil courts; and (ii) whether the impugned fatwa could apply to SIS Forum, which is a company and not a person professing the religion of Islam.
The High Court held that Article 121(1A) of the Federal Constitution dictates that civil courts shall not have jurisdiction in any matter within the jurisdiction of Syariah courts (‘Syariah’ is an Arabic loanword referencing Sharia law). Since the fatwa fell within the jurisdiction of Syariah courts, SIS Forum’s application was doomed from the outset. Thus, the High Court dismissed the application for judicial review of the impugned fatwa.
A majority in the Court of Appeal upheld the High Court’s judgment, and further held that the fatwa applied to SIS Forum, despite it being a company and not a natural person. They considered SIS Forum’s contention – that as a company it could not embrace religion, and consequently that the respondents had no grounds to issue and publish the fatwa – was misconceived.
The dissenting judgment in the Court of Appeal, however, found that the High Court had erred in law in light of a landmark Federal Court decision from 2022: SIS Forum v Selangor State Government. In that case, the Federal Court had unanimously struck down section 66A of the Selangor 2003 Enactment. That section had purportedly granted judicial review powers to the Syariah High Court but it was struck down by the Federal Court , in line with the Federal Court’s interpretation of Article 121(1A) of the Federal Constitution. According to the Federal Court, under a correct interpretation of Article 121(1A), section 66A was unconstitutional as Article 121(1A) did not disempower civil courts, nor did it confer powers to Syariah High Court to usurp civil courts’ powers or jurisdictional competence in judicial reviews. Essentially, in the Court of Appeal minority view, the Federal Court’s decision meant that civil courts could be the only bodies empowered to decide constitutional issues or to issue public law remedies. Such issues would thus fall outside the jurisdiction of the Syariah courts.
Moreover, the Federal Court in the 2022 case held that the jurisdiction of the Syariah courts was intended only to cover laws applying to natural persons. In citing another Federal Court case, Kesultanan Pahang v Sathansk Realty, the Court of Appeal minority indicated that the word ‘profess’ (in Article 11(4) of the Federal Constitution) suggests ‘a declaration of faith which is something an artificial or juridical person is incapable of doing’. Thus, the dissenting judge considered that the respondents had no jurisdiction over artificial persons (such as companies), and in issuing the fatwa, the respondents had exceeded their jurisdictional competence.
Nonetheless, the Court of Appeal majority considered the Federal Court’s 2022 judgment on this point obiter, because the focus in the 2022 case was on profession of faith. Meanwhile, in the context of the impugned fatwa, the issue of profession of faith (in the Court of Appeal majority’s view) did not arise at all. The mission of SIS Forum had to be considered and, even as an artificial person, it could not (according to the Court of Appeal majority) absolve itself from supervision or enforcement of religious laws.
The Court of Appeal majority judgment arguably fell short of ameliorating the longstanding jurisdictional tension between Syariah courts and civil courts in Malaysia. The majority’s treatment of the Federal Court’s precedents seems untenable, as the dissenting judgment indicated. The Federal Court will hear an application from the appellants (SIS Forum) for leave of appeal on 21 August 2023. Meanwhile, SIS Forum has managed to obtain an interim stay of execution of the Court of Appeal judgment, pending the outcome of the Federal Court hearing.
Update – On 21 August 2023, the appellants (SIS Forum) obtained leave of appeal from the Federal Court to appeal against the Court of Appeal’s decision on the impugned fatwa. The Federal Court will set a separate date to hear submissions on the merits of the appeal.
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