SIS obtains Federal Court leave to appeal against ‘deviant’ fatwa

 

Sisters in Islam (SIS) has obtained leave from the Federal Court to proceed with an appeal against a Selangor fatwa that labelled the women empowerment group as deviant.

A three-person bench - chaired by Court of Appeal president Amar Abang Iskandar Abang Hashim and comprising Chief Judge of Malaya Mohamad Zabidin Mohd Diah and apex court judge P Nallini - made the unanimous decision this afternoon.

The Federal Court later will set a separate date to hear oral submissions on the merits of the appeal to nullify the fatwa prepared by the Selangor State Fatwa Committee. The fatwa was gazetted by the state government on July 31, 2014.

The fatwa stated that SIS Forum, individuals, organisations, and institutions that adopt ideologies of liberalism and pluralism are deviant and against the teaching of Islam.

Abang Iskandar today said the bench is of the view that all the questions of law before them require further ventilation during the apex court hearing of the merits of the appeal.

He said the appeal met the threshold of Section 96 of the Courts of Judicature Act 1964, which states that leave to appeal can be granted if the matter deals with novel questions of law that need hearing of merits due to public interest.

Among these issues are whether the civil court has jurisdiction to hear a judicial review on the fatwa-making process, and whether any such state-made fatwa must not violate the fundamental right to freedom of expression guaranteed under the Federal Constitution, the supreme law of Malaysia.

Another legal issue that the apex court is set to hear is whether a company - such as SIS via SIS Forum (Malaysia) Berhad - can be treated under the law as a person professing the religion of Islam (this was part of the basis used by the Selangor religious authorities to issue the fatwa).

The Federal Court is also set to preside over the issue of whether the Selangor fatwa committee should have given SIS the right to be heard before making any decision on issuing a fatwa that labels the group as deviant.

Judicial review

On June 24, 2016, the Kuala Lumpur High Court dismissed SIS’ judicial review that sought to quash the fatwa.

Then on March 14 this year, the Court of Appeal in a 2-1 majority verdict dismissed the women empowerment group’s appeal.

The majority Court of Appeal decision had ruled that contrary to SIS’ contention, the group could not rely on a separate apex court verdict to bolster the appeal, ruling that this Federal Court ruling was mere obiter (a passing remark, made during a ruling, which creates no binding precedent on lower courts).

On Feb 21 last year, a nine-member Federal Court bench chaired by Chief Justice Tengku Maimun Tuan Mat ruled that the Selangor state legislative assembly has no authority to enact a law which empowers the state Syariah Court to hear judicial review over decisions by state religious authorities.

In a unanimous decision, the apex court ruled that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is not constitutional and void as the Selangor state legislative assembly has no power to enact such provision.

Counsel Malik Imtiaz Sarwar represented SIS.

Lawyers Aidil Khalid and Yusfarizal Yussoff as well as state legal advisor Khairul Nizam Abu Bakar appeared for the state fatwa committee, the Selangor Islamic Religious Council (Mais) and the state government respectively. - Mkini