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Court of Appeal decision in SIS fatwa case

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Sisters in Islam (SIS) is gravely disappointed with the majority decision from the Court of Appeal yesterday which affirmed a August 2019 High Court ruling against the company.

In that decision, the High Court had ruled that the civil courts have no jurisdiction to decide on the case and that SIS should instead head to the Sharia courts to challenge the fatwa [a formal proclamation by an Islamic legal scholar]. The judge, in this case, said that Section 66(A) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 provides that the Selangor Sharia High Court can hear judicial reviews.

SIS filed an appeal against this judgment in September 2020, and applied for a petition to the Federal Court to challenge the constitutionality of the Section 66(A). In February 2022 the Federal Court unanimously declared that Section 66(A) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, which grants the state’s Sharia High Court powers of judicial review, is void and invalid.

SIS agrees with the dissenting judge that the court was bound by the Federal Court decision on SIS Forum (Malaysia) and a Federal Court case before that. The Federal Court had stated that “the word ‘profess’ in its natural and ordinary meaning suggests a declaration of faith which is something an artificial or juridical person is incapable of doing (Kesultanan Pahang v Sathask Realty Sdn Bhd [1998])”.

The dissenting judge in the Court of Appeal’s findings yesterday, M Gunalan, reiterated and upheld the decision of the Federal Court in 2022 that fatwas can only be issued and applied to persons who profess the religion of Islam, and SIS, as an organisation, certainly could not profess the religion as such.

Based on the oral grounds delivered, SIS is particularly concerned that the majority decision of the Court of Appeal appears to not follow the precedent made at the Federal Court.

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.

The Federal Court for SIS Forum (Malaysia) in 2022, stated: “Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the Civil Courts.”

SIS will be filing an appeal at the Federal Court.

SIS was founded 35 years ago to address the experiences of Muslim women in the Sharia courts and their challenges in obtaining their rights under Islamic family law. SIS as an organisation undertakes to speak on these issues because many Muslim women have limited avenues, knowledge and courage to have their voices heard.

SIS has been serving Muslim women and men in Malaysia and overseas on their rights in the family and on the processes and procedures of the Sharia courts through our legal helpline and services, Telenisa, which is in its 20th year of operations this year.

In 2021 during the movement control order, 75% of Telenisa’s clients were from the poorest 40% of household compared to 60% in 2020. Overall, SIS has served over 15,000 clients from Malaysia and abroad. There are still major issues to be resolved for Muslim women in Malaysia, specifically for Muslim women in the family. – SIS

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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