PUTRAJAYA — The Federal Court today allowed the Selangor religious authorities to continue with its bid to end Sisters in Islam’s (SIS) legal challenge against a fatwa labelling the latter as “deviant”.
The Federal Court said the five questions of law submitted by the Selangor Islamic Religious Council (Mais) and two others sued by SIS need to be discussed in court.
“We allow the application on the five questions presented to us,” said Chief Justice Tan Sri Md Raus Sharif, who chaired the three-man panel.
The two other judges are Tan Sri Zulkefli Ahmad Makinudin and Datuk Seri Abu Samah Nordin.
The five questions of law include whether the Shariah court’s jurisdiction can be implied from or has to be expressly stated in state laws; and whether a fatwa issued under a Selangor state law is within the exclusive jurisdiction of Shariah courts.
One of the questions is also on whether a company that “uses the name of Islam and is controlled by those who profess the religion of Islam” can be legally interpreted as being a person that professes the religion of Islam.
Surendra Ananth, one of the lawyers who represented SIS, said the lawsuit has yet to be heard on its merits and that the Federal Court’s upcoming hearing is still on preliminary issues.
The Federal Court decision after it hears the Selangor Islamic authorities’ appeal on the preliminary matter will however be crucial to determine if SIS can continue its challenge in the civil courts against the fatwa.
“If the Federal Court agrees with them on the appeal proper, the matter ends there.
“If the Federal Court dismisses the appeal, it will go back to the High Court to be heard on the merits,” he told reporters after the court’s decision.
During the hearing, Surendra told the judges that his clients were not challenging the power of the council to issue the edict, but were specifically challenging only the one issued against them due to its alleged breach of the Federal Constitution.
He also said SIS’s challenge should be heard in the civil courts as it involved constitutional law, arguing that the Islamic courts would only be suitable if the fatwa was alleged to have breached Islamic laws.
“There is no law in any state enactment that says a Shariah court can review a fatwa on constitutional issues and furthermore the fatwa names a company.
“How can a company go to Shariah court, they can’t profess the religion of Islam,” he had said, also citing several Federal Court decisions in arguing that the law is settled in terms of which court had jurisdiction and that companies cannot profess the religion of Islam.
MAIS lawyer Yusfarizal Yussoff had during hearing argued that SIS as a company could be regarded as professing Islam, and that it could not legally challenge a fatwa in the absence of prosecution for alleged non-compliance.
“That is clear to us, you can’t actually challenge fatwa since fatwa is not law, fatwa is only scholastic opinion. How you want to challenge scholastic opinion and say scholastic opinion is against Federal Constitution?” he asked, arguing that SIS should only mount a legal challenge if they were subsequently prosecuted and if it was unconstitutional.
SIS executive director Rozana Isa told reporters after the decision: “Of course naturally we are very disappointed with leave being allowed today but nevertheless this is not final, and so we look forward to our day in court”.
Today was the hearing of the Selangor government and Selangor Islamic bodies’ application for leave to appeal an earlier court ruling that allowed SIS to proceed with its lawsuit.
On March 2, the Court of Appeal had unanimously reversed the High Court’s decision to dismiss SIS’s legal challenge against the fatwa.
The Court of Appeal had then ordered the case to be sent back to the Kuala Lumpur High Court to be heard before another judge.
On December 10, 2014, then High Court Judge Datuk Asmabi Mohamad granted SIS leave for judicial review.
But High Court judge Datuk Hanipah Farikullah had last June 24 dismissed the case based on a preliminary objection by the Selangor religious authorities on the issue of which court had jurisdiction, ruling that only the Shariah courts have the powers to deal with the religious edict.
SIS had filed on October 31, 2014 for judicial review of a gazetted fatwa in Selangor that declared the group as “deviants” in Islam due to their alleged religious liberalism and pluralism.
The fatwa also deemed any publications with elements of liberalism and religious pluralism as “haram”, or forbidden to Muslims, and can be seized by religious authorities.
It also sought for local Internet regulator the Malaysian Communications and Multimedia Commission to monitor and block social media websites with content that was against Islam.
SIS Forum (Malaysia), the group’s co-founder Zainah Anwar and Datuk Zaid Ibrahim had named the Selangor Fatwa Committee, Mais and the state government as respondents in their application.