PUTRAJAYA: A Selangor fatwa (edict) that declared Sisters in Islam (SIS) Forum Malaysia as “deviant” 11 years ago is not applicable to the company as the entity could not be construed as a person professing Islam, the Federal Court ruled.
The court ruled so after allowing an appeal by SIS in its dispute against the Selangor religious authorities over the fatwa that was gazetted in 2014.
The judgment, however, applied only to the extent of the edict’s application.
Chief Justice Tengku Maimun Tuan Mat, when reading out the judgment, said 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 Hajj – 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 the 3-1 majority decision yesterday.
(In the Federal Constitution, the Ninth Schedule has two lists, namely List I or Federal List, which lists down the areas that the Federal Government can make laws on, and List II or State List, which states what the state government has powers to make laws on. Item 1 refers to the State List.)
The appeal arises from a judicial review application filed by SIS and its founder Zainah Anwar in October 2014 to challenge the fatwa that was gazetted on July 31, 2014.
They named the Selangor Fatwa Committee, the Selangor Islamic Religious Council (Mais) and the Selangor state government as respondents.
In 2019, the High Court dismissed the judicial review application while the Court of Appeal dismissed the appeal in 2023.
The fatwa declared that SIS as well as any individual and group 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.
It further directed the Malaysian Communications and Multimedia Commission to censor social websites that go against Islamic teachings and hukum syarak.
The fatwa also directed that any individuals holding on to liberalism and religious pluralism should repent and return to the path of Islam.
Tengku Maimun said the issue of 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,” Tengku Maimun said.
The appeal at the Federal Court was initially heard before a five-judge panel.
Besides the Chief Justice, 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 Abdul Karim Abdul Jalil, who retired in April.
Meanwhile, Justice Abu Bakar, who held the dissenting view, said a company would still be bound by a fatwa, especially in the present case as SIS comprises of Muslims and its work is related to Islam.
“It is disturbing that the first appellant 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,” he said.
“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 Constitution should not apply to the same,” Justice Abu Bakar added.
