On 19 June 2025, the Federal Court of Malaysia overturned a Court of Appeal decision which upheld a fatwa (religious edict) declaring SIS Forum (Malaysia), individuals and organisations subscribing to ‘liberalism and religious pluralism beliefs’, to be ‘deviant’ from Islamic teachings. By a 3-1 majority, led by then Chief Justice Tun Tengku Maimun Tuan Mat, the Federal Court in SIS Forum (Malaysia) v Jawatankuasa Fatwa Negeri Selangor (Selangor State Fatwa Committee) held that the fatwa is constitutionally barred from declaring the appellant as ‘deviant’ because it is a corporation and cannot profess the religion of Islam. The Court held that the impugned fatwa is only valid to the extent that it applies to individuals, but not to corporations or artificial persons.

Applicability of fatwa to corporations

This 2025 decision upheld the 2022 Federal Court case of SIS Forum (No.1), applying the 1998 Federal Court precedent in Kesultanan Pahang v Sathask Realty which established the principle that corporations (companies incorporated under the Companies Act 1965) cannot profess a faith. Accordingly, it considered that the majority in the Court of Appeal erred in not adhering to the doctrine of precedent by purporting to distinguish the case of SIS Forum (No.1) from the present case.

The Federal Court emphasised that the performance of religious duties such as paying Zakat (Islamic mandatory almsgiving/tax) by corporations on behalf of the Muslim members does not consequently subsume a corporation as a ‘person professing the religion of Islam’ in the context of the Malaysian Federal Constitution (Item 1 State List, Ninth Schedule). Thus, corporations are not subject to Islamic laws and edicts, including the impugned fatwa.

Significance

This landmark judgment clarified several important issues.

First, the justiciability of fatwa by civil courts. Article 121(1A) of the Federal Constitution does not oust the jurisdiction of civil courts to judicially review the making and gazetting of a fatwa, and its constitutionality and legality. Article 121(1A) merely states that civil courts ‘shall not have jurisdiction in respect of any matter within the jurisdiction of the Syariah courts’.

Along this vein, the Court maintained that Article 121(1A) should always be read together with Article 121(1). Article 121(1), properly construed, preserves the judicial power and the sole prerogative of civil courts to interpret the Federal Constitution and determine the constitutional validity of all laws, including the state legislation gazetting the fatwa, which ultimately derives its legality from the Federal Constitution (paras 8-17).

Second, federal-civil/state-Syariah jurisdictional and legislative competence. Article 121(1A) also does not ‘enlarge’ or ‘grant jurisdiction’ to the Syariah courts beyond the limited categories of subject-matters granted to them by Item 1 of the State List in the Ninth Schedule of the Federal Constitution. Nor does it confer legislative power to the Selangor State Legislature to enact state legislation (including the law gazetting fatwa) beyond its jurisdiction conferred by Item 1.

According to the Court, Article 121(1A) merely clarifies the jurisdiction of civil courts (i.e., superior courts) vis-à-vis Syariah courts. It does not oust the exclusive interpretive power of civil courts in determining which subject-matters are within the jurisdiction of Syariah courts. Only when a matter is clearly determined by the civil courts to rightly be within the jurisdiction of Syariah courts, the civil courts will then cease to possess jurisdiction over the litigant and the subject-matter under Article 121(1A) (paras 28-33; applying Rosliza Ibrahim).

In this judgment, as opposed to the sole dissent’s approach to automatically deferring jurisdiction to Syariah courts simply because a fatwa ‘is grounded on Hukum Syarak’ (Islamic laws or dictates) (paras 127-130), the Court majority’s approach is more consistent with the constitutional supremacy doctrine under Article 4(1) which proclaims that any laws are subject to scrutiny only by the civil superior courts (para 28).

Finally, the force of law of fatwa. A fatwa, once gazetted, carries legal force and is not merely a suggestion, contrary to the respondents’ contentions. The impugned fatwa (para 2) stated that any publications with elements of liberalism and religious pluralism should be prohibited and can be seized. It further instructed the Malaysian Communications and Multimedia Commission (MCMC) to block social media websites which contravene Islamic teachings (para 3).

The Court considered these an intrusion upon federal law and federal powers because the fatwa being a legal gazette of the Selangor State Legislature cannot instruct federal bodies like MCMC under the jurisdictional delineation prescribed by the Federal and State Lists in the Federal Constitution. Thus, it nullified these two paragraphs of the fatwa (paras 80-88, 92).

Conclusion

This case arguably provides a renewed momentum for NGOs like SIS Forum (Malaysia) in its long-term advocacy for Muslim women’s rights, gender equality and justice by challenging patriarchal interpretation of Islam notwithstanding contemporary challenges. By clarifying the constitutional limits of fatwas, the Court demarcated the legal boundaries of religious authority, thus reasserting constitutional supremacy and entrenching constitutional guardrails against the encroachment by religious bureaucracy. This confers legitimacy for SIS Forum (Malaysia) to break the monopoly of discourse by Islamists and to resist the systemic shutdown of pluralist ijtihad (independent reasoning) within the larger backdrop of institutionalisation of Islamism, which the impugned fatwa is emblematic of.