Lawyers Surendra Ananth (front left) and Datuk Malik Imtiaz Sarwar (second left) with members of Sisters in Islam.

PUTRAJAYA (June 19): The Federal Court in a majority decision on Thursday ruled that the Selangor fatwa (religious edict) that declared non-governmental organisation Sisters in Islam (SIS, registered as SIS Forum Malaysia) as deviant does not apply to the organisation as it is considered a company and not a living person or a Muslim.

However, the ruling did not address the broader fatwa concerning Muslims adopting liberalism and pluralism, which are still considered deviant, and such believers should repent.

The majority, led by Chief Justice Tun Tengku Maimun Tuan Mat, allowed the SIS appeal in part.

It is understood that the president of the Court of Appeal, Tan Sri Abang Iskandar Abang Hashim, and Federal Court judge Tan Sri Nallini Pathmanathan are in the majority, while another Federal Court judge, Datuk Abu Bakar Jais, dissented.

Another Federal Court judge, Datuk Abdul Karim Abdul Jalil, who heard the appeal, retired in April.

In Tengku Maimun’s majority decision, she said that although the issue in question between SIS and the Selangor Fatwa Committee, Selangor Islamic Council, and the Selangor government concerns a fatwa, the issue before the court was on the sentence "persons professing the religion of Islam".

She said that past court decisions ruled that the interpretation of the provision relied on the civil superior court, as this is in line with the court’s power to review the decision of the Executive and Legislative via a judicial review in the civil court.

The Selangor fatwa stipulates that SIS and any individual or organisation that adopt liberalism and pluralism are considered deviant according to Islam.

According to the Selangor fatwa, any publication that highlights liberal and plural thinking to the religion is considered banned and can be confiscated. The fatwa was of the opinion that the Malaysian Communication and Multimedia Commission should bar social media posts that are against Islamic teachings, and any individual who holds liberal and plural opinions should repent and return to Islam.

The CJ said the decision on the fatwa is valid as to its application on individuals that hold the liberal and plural thinking, which is considered deviant and requires repentance.

“The bench finds that the first paragraph only applies to individuals, and it also touches on the jurisdiction of the respondents to apply it, as it applies to ‘persons professing the religion of Islam’.

“This is also in line with Article 11(4) of the Federal Constitution. The respondents do not have the jurisdiction to ban publication or bar the access of the social media of the agencies and jurisdiction which are under the federal agency. Publications are related under the Printing Presses and Publications Act 1984, and the other is under the Communications and Multimedia Act 1998.

“In view of our finding and past courts’ decisions, the bench finds that the term ‘persons professing the religion of Islam’ or ‘persons practicing Islam’ can only refer to persons (natural persons), and not artificial persons as with a company,” she said.

The interpretation is in line with the fact that under the Islamic precepts, an actual person or Muslim has to pronounce the affirmation of faith, pray, pay tithe, fast in the month of Ramadan, and perform the haj.

“In this context, a company as an artificial person does not have the capacity to repent, as suggested by the fatwa. A company cannot practise Islam for it to be classified as a person professing the religion of Islam,” she said.

Tengku Maimun said in this context, there is no need to lift the corporate veil as a company, organisation, or institution is moved by individuals.

“Any individual responsible for any company, organisation, or institution that is against the fatwa is tied to the fatwa. This is clear, as the fatwa differentiates between individuals and companies (as SIS Forum is).

“Hence, it does not arise that a company, organisation, or institution should be made responsible for the actions of individuals [who act] against the fatwa. The responsibility arises from the individuals that moved the company, organisation, or institution. Our view is strengthened through a paragraph in the fatwa, that an individual should repent and return to Islam,” she said.

To avoid confusion, the CJ said that the bench was not touching the contents of the fatwa, as this was within the jurisdiction of the respondents (Islamic affairs, and jurisdiction on Islamic matters fall on the state).

“For these reasons, the bench in the majority allows SIS Forum’s appeal in relation that it applies to only the company, organisation or institution, and it is not applicable to federal agencies,” she said.

Dissenting judgement

Judge Abu Bakar was in the minority in ruling that SIS should make the challenge at the shariah court.

Abu Bakar in his decision said that the Federal Constitution stipulates that the civil and the shariah courts are recognised by Article 121(1) and Article 121(1A) of the Federal Constitution.

He said Article 74, read together with Item 1 of List II-State List in the Ninth Schedule of the Federal Constitution, provide the jurisdiction of the shariah courts.

“I find that the learned High Court judge could not be faulted nor erroneous in finding the shariah court had the jurisdiction in respect of the fatwa, as the same relates to ‘the control of propagating doctrines’ and ‘beliefs among persons professing the religion of Islam’ or ‘the determination of matters of Islamic law and doctrine’.”

Hence, he said the High Court had correctly denied the judicial review for declaration that the fatwa issued by the Selangor Fatwa Committee be declared invalid.

Abu Bakar said the High Court in consequence had rightly ordered no certiorari to quash the fatwa.

“In fact, the High Court was absolutely correct to decide on the present case by determining whether the civil courts in the first place have jurisdiction to hear the application for judicial review.

“The High Court was not in error in determining that only the shariah courts would have jurisdiction to hear and decide on a challenge against a fatwa such as in the present case. I agree that the above approach by the High Court judge should mean this single issue of jurisdiction would be sufficient to dispose of the application for judicial review at the High Court,” he said, adding he agreed with the approach taken.

Abu Bakar said the appellants should present their objections against the fatwa at the shariah courts.

“There is no evidence before us to suggest this could not be done. This issue alone is sufficient to determine the present appeal. I could see no wrong when the High Court judge decided to look at the substance of the challenge, which is against the fatwa. This is because of the subject matter approach based on binding authorities which was correctly referred,” the apex court judge said.

The fatwa was issued by the Selangor government in 2014 and gazetted the same year, resulting in the challenge.

The High Court had dismissed SIS' judicial review, following a judgement by Datuk Nordin Hassan (now a Federal Court judge). The Court of Appeal upheld the decision, resulting in this appeal to the apex court.

SIS was represented by Datuk Malik Imtiaz Sarwar and Surendra Ananth, while Mohd Haniff Khatri Abdullah appeared for the Selangor Fatwa Committee, Yusfarizal Yussoff appeared for the Selangor Islamic Council while Selangor state legal adviser Datuk Salim Soib appeared for the state government.