After bid to challenge Selangor fatwa failed, Sisters in Islam expresses concern over appellate court not following judicial precedent

Malay Mail
Malay Mail

KUALA LUMPUR, March 14 — Women's rights group Sisters in Islam (SIS) has expressed concern over the Court of Appeal's decision today in dismissing their bid to challenge a 2014 state fatwa labelling the organisation deviated from Islamic teaching.

In a statement, SIS said the court's majority decision appeared to have not followed the precedent previously made at the country's apex court in 2022.

"SIS is gravely disappointed with the majority decision from the Court of Appeal which affirmed the August 2019 High Court ruling against the company.

"The basis and arguments raised by SIS in this fatwa case have always been on the grounds of the Federal Constitution and the extent to which relevant authorities had the mandate to make state laws and grant powers to state-level authorities that are in clear contravention of the Federal Constitution," it said.

In the February 2022 decision, the Federal Court unanimously declared Section 66(A) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 which granted the state’s Shariah High Court powers of judicial review as void and invalid.

Earlier, the Court of Appeal’s majority decision was also of the view that SIS Forum had failed to show that the 2014 fatwa issued by the Selangor fatwa committee was ultra vires or had gone beyond its powers under the 2003 Selangor law.

In a dissenting judgement, Datuk M. Gunalan, the other judge on the Court of Appeal panel, gave his minority or dissenting judgment — which, among other things, viewed that the Selangor Islamic bodies could not apply the fatwa to SIS Forum (Malaysia) Bhd as it is a company not capable of professing the religion of Islam.

The Selangor fatwa issued and gazetted in July 2014 had also said any publications with elements of liberalism and religious pluralism should be "diharamkan” (banned or made forbidden) and can be seized, stating that the Malaysian Communications and Multimedia Commission (MCMC) should block any social websites which goes against the teachings of Islam and its codes, and also declared that any individuals holding on to liberalism and religious pluralism beliefs should repent and return to the path of Islam.

The Court of Appeal agreed with the High Court decision which said the 2014 fatwa had not gone against the Printing Presses and Publications Act’s (PPPA) Section 7 and the Communications and Multimedia Act’s (CMA) Section 3(3).

The Court of Appeal said the High Court was not wrong to say that the 2014 Selangor fatwa only makes publications with liberalism and religious pluralism forbidden and does not give the Selangor fatwa committee to seize such publications, as the power to prohibit publications is still in the hands of the home minister.

The Court of Appeal went on to highlight that the Selangor 2014 fatwa only states a prohibition on liberalism and religious pluralism beliefs and only requires individuals to repent and return to Islam, and does not involve matters such as physical punishments.

The majority decision also ruled that the 2014 fatwa did not go against Article 5 and Article 8 of the Federal Constitution.

In short, the majority decision in the Court of Appeal agreed with the High Court that the civil High Court has no jurisdiction to hear and decide on SIS Forum’s challenge.