Court dismisses appeal against fatwa declaring SIS 'deviant'

The Court of Appeal has dismissed an appeal against a Selangor fatwa that labelled Sisters in Islam (SIS) as a deviant group.

The three-member bench chaired by Has Zanah Mehat, in a 2-1 majority decision today, dismissed the appeal by the women’s rights group.

Has Zanah constituted the majority decision, with panel member Che Mohd Ruzima Ghazali. M Gunalan made the dissenting decision.

The fatwa prepared by the Selangor State Fatwa Committee and subsequently gazetted by the Selangor government on July 31, 2014, states that SIS Forum, individuals, organisations and institutions adopting ideologies of liberalism and pluralism are deviant and against the teaching of Islam.

The appeal by SIS is against the decision of the Civil Bench of the High Court in Kuala Lumpur on June 24, 2016, which dismissed the judicial review filing by SIS against a Selangor religious authority’s fatwa labelling the group as deviant.

The Selangor State Fatwa Committee prepared the fatwa which was then gazetted by the Selangor government on July 31, 2014.

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

Majority verdict

In reading out the majority verdict this morning, Ruzima ruled that only the Syariah Court has the exclusive jurisdiction to determine the issue of the fatwa and that SIS should have raised the issue before the state religious court, rather than with the civil court.

“As the fatwa is linked to the determination of ‘hukum syarak’, any dispute is in the exclusive jurisdiction of the syariah court and not the civil court,” Ruzima said, pointing out that the Federal Constitution empowers this exclusive jurisdiction to the syariah courts.

However, in his dissenting ruling, Gunalan ruled that he is inclined to allow the appeal as he disagreed with the majority stance adopted by the panel today regarding an apex court ruling issued on Feb 21 last year.

He was referring to today’s majority stance that the apex 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.

SIS had tried to rely on the apex court ruling to bolster their appeal before the Court of Appeal to quash the fatwa.

In reading out his dissenting ruling today, Gunalan reiterated that the High Court had erred in its decision as the Federal Court had previously ruled that the civil courts are empowered to preside over constitutional issues or issues of public law remedy.

Gunalan said the High Court failed to judicially appreciate that the Selangor State Fatwa Committee had exceeded its jurisdictional competence in issuing the fatwa and that appellant SIS had correctly challenged this before the civil High Court.

Towards the end of proceedings today, Has Zanah said the panel allowed an application by SIS’ counsel Malik Imtiaz Sarwar to extend the stay over the civil High Court ruling, pending the filing of an official stay application.

The group seeks the stay pending their appeal to the Federal Court against today’s verdict.

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