PUTRAJAYA: A company would still be bound by a fatwa (edict), especially in the case involving Sisters in Islam (SIS) Forum Malaysia, as the company comprises Muslims and its work is related to Islam, says a Federal Court judge.
Justice Abu Bakar Jais, who held the dissenting view in a 3-1 majority decision at the Federal Court, stated that a company could not exist without individuals managing it and asserted that the people behind SIS were Muslims.
ALSO READ: Federal Court allows appeal by SIS over deviant fatwa ruling
On Thursday (June 19), the Federal Court allowed an appeal by SIS regarding the application of a fatwa issued by the Selangor state religious authorities against the company, which labelled SIS as “deviant.” The majority decision held that the edict was not applicable to SIS as it was an entity and not a natural person.
"On this issue, I am compelled to say that this court’s focus should not be blinkered by the assertion that since the first appellant is a company, therefore it could not be subjected to the fatwa.
"It is also regressive in approach to ignore the people supporting the company and simply say that since it is a company, it could not be bound by the fatwa. This should not be done as one ought to have the vision and foresight in asking who the people are behind this company," Justice Abu Bakar said in his standalone decision.
The judge said that the company's name was a giveaway of its identity.
"Its own name, SIS Forum (Malaysia) or 'Sisters in Islam', clearly shows its identity. Is that insufficiently clear? I do not think so.
"The very least, the second appellant (Zainah Anwar), who was the executive director and founder of the first appellant (SIS), is a Muslim," he said, noting that the company directors and members were also Muslims.
Justice Abu Bakar said he found it "disturbing" that SIS could "escape" and not be subjected to the fatwa simply by being a company, but nonetheless ventured to make assertions and express views affecting the precepts and tenets of Islam.
"It should not be concluded just because a company is not a person professing Islam as a religion, such as in this case, the provision of the Federal Constitution should not apply to the same," Justice Abu Bakar said.
He was also of the opinion that the dispute regarding the fatwa should have been considered within the jurisdiction of the Syariah Courts and not the civil courts, and this “formulation” by the apex court was still good law.
Justice Abu Bakar also said it was high time that a company, although strictly speaking is not a 'person', must also be subjected to a fatwa, especially based on the facts of this case.
"Based on all the reasons explained, I have no hesitation in dismissing the present appeal. Lastly, I find it strange if a Syariah Court has no jurisdiction to rule on a dispute about a fatwa," he added.
The dissenting view originated from an appeal by SIS at the Federal Court, which was initially heard before a five-judge panel.
It arises from a fatwa gazetted by the Selangor state government on July 31, 2014, which declared that SIS, any individual, as well as groups that adopted the deviant ideologies of liberalism and pluralism, were deviating from the teachings of Islam.
The fatwa stated that any publications containing liberal and plural views of Islam should be banned and confiscated, and further directs the Malaysian Communications and Multimedia Commission (MCMC) to censor social websites, which go against Islamic teaching and hukum syarak.
The fatwa also directed that any individuals holding on to liberalism and religious pluralism beliefs should repent and return to the path of Islam.
In the majority decision on Thursday, Chief Justice Tengku Maimun Tuan Mat allowed the appeal by SIS to the extent of the edict's application only.
CJ Tengku Maimun said the term "persons professing the religion of Islam" refers to natural persons and not artificial persons such as companies, and therefore, the fatwa was unapplicable to an artificial entity.
"A company, being an artificial entity, lacks the capacity to repent as proposed by the fatwa. Hence, we conclude that a company cannot 'profess' Islam in order to be lawfully classified as a 'person professing the religion of Islam' under Item 1," she said.
Besides the CJ, other judges on the bench were Court of Appeal judge Justice Abang Iskandar Abang Hashim, Federal Court judges Justices P. Nallini, Abu Bakar and recently retired Abdul Karim Abdul Jalil, who left the judiciary in April.
Due to Abdul Karim's retirement, the court applied Section 78 of the Court of Judicature Act 1964 to deliver its decision with the remaining four judges on the bench.
SIS Forum and its founder, Zainah, filed the judicial review application in October, 2014 to seek a certiorari order to quash the fatwa after its gazettement in Selangor.
They named the Selangor Fatwa Committee, the Selangor Islamic Religious Council (MAIS) and the Selangor state government as respondents.
On Aug 27, 2019, the High Court dismissed the judicial review application, prompting them to appeal to the Court of Appeal.
On March 14, 2023, the Court of Appeal dismissed SIS's appeal in a 2-1 majority decision on the grounds that the appeal had no merit. SIS then brought its appeal to the Federal Court.
