PUTRAJAYA: The Federal Court here has allowed an appeal by Sisters in Islam (SIS) in its dispute against the Selangor religious authorities over an edict that labelled the company as "deviant".
In a 3-1 majority decision, Chief Justice Tengku Maimun Tuan Mat said the appeal was allowed to the extent of the edict's application only.
CJ Tengku Maimun, who read the majority decision, said it was the court's finding that the term "persons professing the religion of Islam" refers to natural persons and not artificial persons such as companies.
"This constitutional interpretation aligns with the fact that only natural persons can profess the shahadah, perform prayers, fast in Ramadan, and perform the haj – core tenets of the Islamic faith.
"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 in an open court proceedings here on Thursday (June 19).
The appeal by SIS arises from a fatwa (edict) that was gazetted by the Selangor state government on July 31, 2014.
The fatwa 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 goes 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.
CJ Tengku Maimun further said that the question about a company, organisation, or institution escaping accountability relating to the fatwa does not arise.
"Accountability for violating the fatwa rests with the individuals behind such entities. This is further supported by paragraph four of the fatwa, which only requires individuals who adhere to liberalism and religious pluralism to repent," she said.
The apex court also asserted its separation of jurisdiction from the Syariah Courts.
"To avoid misunderstanding, we reiterate that we express no view on the content of the fatwa itself, especially phrases such as: '... liberalism and religious pluralism are deviant and misguided from the teachings of Islam' and 'any individual subscribing to liberalism and religious pluralism ideology must repent and return to the path of Islam'. These fall under the exclusive jurisdiction of the respondents.
"With the reasons we have mentioned, we set aside the decisions by the High Court and the Court of Appeal," said CJ Tengku Maimun.
The appeal at the Federal Court was initially heard before a five-judge panel.
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 Jais 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.
Justice Abu Bakar, who held the dissenting view, said that a company would still be bound by a fatwa especially in this case depending on the makeup of that company and what it did in its work, in relation to Islam.
He said a company could not exist without persons manning it and that the people behind SIS were Muslims.
"It is disturbing that the first appellant (SIS) could escape and not be subjected to the fatwa simply by being a company but nonetheless venturing to make assertions and expressing 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.
On Aug 27, 2019, the High Court dismissed the judicial review application filed by SIS Forum and its founder Zainah Mahfoozah Anwar. This prompted them to appeal to the Court of Appeal.
In their judicial review, they sought for a certiorari order to quash the fatwa.
On March 14, 2023, the Court of Appeal dismissed SIS' appeal in a 2-1 majority decision on grounds that the appeal had no merit. SIS then brought its appeal to the Federal Court.
