SIS challenge against fatwa declaring it a deviant group sent back to High Court

  • Nation
  • Tuesday, 25 Sep 2018

PUTRAJAYA: The legal challenge by Sisters in Islam (SIS) against a fatwa declaring it a "deviant group" will return to the High Court to be heard. 

The Federal Court on Tuesday (Sept 25) decided that the judicial review application filed by SIS' corporate body SIS Forum (Malaysia) challenging the Selangor Fatwa Committee's order will be remitted back to the High Court to decide the merits, which included whether a non-syariah court had jurisdiction over the matter.

A seven-man bench chaired by Chief Justice Tan Sri Richard Malanjun and six other judges said parties were free to argue on the issues of jurisdiction at the High Court level to save time. 

Other judges on the panel were Court of Appeal president Tan Sri Ahmad Maarop, Chief Judge of Malaya Tan Sri Zaharah Ibrahim, Justices Tan Sri Azahar Mohamed, Tan Sri Aziah Ali, Datuk Rohana Yusuf and Datuk Mohd Zawawi Salleh.

A consent order was recorded by the court and signed by counsels from both parties.

On Oct 31, 2014, SIS through its company SIS Forum (Malaysia), had filed the application to challenge the decision by the Selangor Islamic Religious Council (MAIS) and the Selangor Fatwa Committee declaring it as deviating from Islamic teachings. 

The Selangor state government was also named as a respondent.

The Selangor Fatwa Committee and MAIS had declared that any individual or groups which adopted the ideologies of "liberalism" and "pluralism" were deviating from the teachings of Islam. SIS Forum had sought an order in 2014 to quash that decision. 

It had also sought a declaration that SIS, which was formed as a company limited by guarantee under the Companies Act 1965, was not subject to the decisions of the Selangor Fatwa Committee and MAIS.

However, the High Court dismissed SIS' challenge to the Selangor fatwa because it ruled that civil courts did not have jurisdiction to decide over the issue of a fatwa.

Justice Hanipah Farikullah held then that a fatwa was a matter of Islamic law and came solely under the jurisdiction of the syariah courts.

SIS then took the matter up to the Court of Appeal which on March 2 last year allowed SIS to challenge the fatwa.

On July 11 last year, the case took another turn when the Federal Court allowed MAIS, the Selangor Fatwa Committee and the state government to appeal against the Court of Appeal's decision.

In Tuesday's case, there was some debate again between the parties about whether a civil court had jurisdiction by virtue of the Federal Constitution to decide on this matter, but the parties agreed that the case should return to the High Court to decide that and also the merits of the case. 

Counsel Datuk Sulaiman Abdullah represented the Selangor Fatwa Committee, counsel Yusfarizal Yussoff acted for MAIS and State Legal Advisor Datuk Nik Suhaimi Nik Sulaiman for the Selangor Government. Counsel Datuk Malik Imtiaz Sarwar and A. Surendra acted for SIS.

The order said in view of the foregoing, the High Court is directed to start the case afresh and decide on all issues raised by parties. The decision by the Court of Appeal on March 2 last year is to be set aside.

Met after the proceedings, Surendra said the case has been fixed for case management before High Court (Appellate and Special Power) judge Justice Azizah Nawawi on Oct 2.

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