Mais allowed to be part of Sisters in Islam’s constitutional challenge of Selangor law on Shariah courts’ powers for judicial review

KUALA LUMPUR, Jan 14 — The Selangor Islamic Religious Council (Mais) was today allowed to intervene or be part of SIS Forum (Malaysia) Bhd’s constitutional challenge at the Federal Court, with the court challenge being on whether Selangor had the powers to make a state law to grant Shariah courts powers to carry out a judicial review of state religious authorities’ decisions.

Today was the hearing at the Federal Court of an application by Mais to be allowed to be an intervener in the court challenge by SIS Forum. Sisters in Islam operates as SIS Forum.

Sisters in Islam executive director Rozana Isa said a Federal Court judge granted the intervener application by Mais and allowed it to intervene due to it having a legal interest in the matter.

“She said they have an interest because they are named in Section 66A,” Rozana told Malay Mail when contacted today.

As for the constitutional challenge by SIS, the Federal Court has yet to fix a hearing date for it.

On September 22, 2020, the Federal Court granted leave under Article 4(3) and 4(4) of the Federal Constitution for SIS Forum (Malaysia) Bhd to initiate its challenge against Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003.

This meant that SIS was allowed to pursue its legal challenge at the Federal Court over Section 66A of the Selangor state law. The Selangor state government was named as the respondent in SIS’ court challenge.

Under Article 4(3) and Article 4(4) of the Federal Constitution, the validity of laws that are made by Parliament or any state legislature can be challenged on the basis that either Parliament or the state legislature has no power to make such laws, but with the requirement that a Federal Court judge grants leave before such court proceedings can start.

The Section 66A provision in the Selangor state law enables the Shariah courts in Selangor to carry out the judicial review function or to review decisions that were made by Selangor Islamic religious bodies: “The Shariah High Court, may, in the interest of justice, on the application of any person, have the jurisdiction to grant permission and hear the application for judicial review on the decision made by the Majlis or committees carrying out the functions under this Enactment.”

The lawyer for SIS, Fahri Azzat, had last September argued in the Federal Court that the Selangor state legislature had no power to make and introduce Section 66A as law to give Shariah courts the power of judicial review, saying that this was because it did not fall within the scope of matters that the Federal Constitution allows state legislatures to make law on.

Instead of the state governments, Fahri had also argued that it is the federal government that has the power under the Federal Constitution to list the power of the courts such as to carry out judicial review.

Selangor state legal advisor Datuk Salim Soib @ Hamid, who was representing the Selangor state government, had last September — when objecting to the leave to be granted to SIS — argued that the Selangor state legislature had the power under the Federal Constitution to make the Section 66A provision as law to enable Shariah courts to review the decisions of the executive such as Mais and the Selangor state fatwa committee.

Salim had also argued that the Shariah courts should be given the power to carry out judicial review of matters that involve Islamic matters, such as for fatwa or religious edicts issued in Selangor and which would affect Muslims in Selangor.

The arguments presented by Fahri and Salim then were only in relation to the application by SIS for leave to start its constitutional challenge. The actual constitutional challenge has yet to be heard.

This constitutional challenge is related to SIS’ challenge of a Selangor fatwa against it.

SIS had filed in the High Court on October 31, 2014 for judicial review of a gazetted fatwa in Selangor that declared the group as “deviants” in Islam due to their alleged religious liberalism and pluralism.

The fatwa had also deemed any publications with elements of liberalism and religious pluralism as “haram” or forbidden to Muslims, and can be seized by religious authorities, while also seeking for local Internet regulator the Malaysian Communications and Multimedia Commission to monitor and block social media websites with content that are against Islam.

Previously, the High Court had in August 2019 relied on Section 66A as a reason to dismiss SIS’s application for the civil court to hear its judicial review against the Selangor religious bodies’ fatwa against it.

The High Court had cited Section 66A to say that SIS Forum should have instead filed its judicial review application at the Shariah courts, and not the civil courts. This was despite SIS Forum being a company, which its lawyers said meant that it is not a “person professing the religion of Islam” and would not come under the Shariah courts’ jurisdiction.

SIS has since filed an appeal in the Court of Appeal against the High Court’s dismissal of its judicial review application, but the appeal there has been put on hold and with no hearing dates fixed until the Federal Court decides on this Section 66A challenge.

At the same time, the High Court had also granted a stay on the fatwa against SIS until the Court of Appeal decides on the appeal, SIS lawyer Surendra Ananth had previously said.

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