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High Court ruling on Sisters in Islam threatens rights to freedom of expression, religion, belief

A royal commission of inquiry into the judiciary is needed

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The International Commission of Jurists (ICJ) expressed concern over the decision given on 27 August 2019 by the Malaysian High Court that a fatwa issued against the women’s organisation, Sisters in Islam, should be referred to a Sharia court.

The High Court used as a basis Article 121(1A) of the Federal Constitution, which states that secular courts do not have jurisdiction over matters pertaining to Islam.

The ICJ called on the Malaysian authorities to ensure that custom, tradition, and religion should not be used as a justification to undermine human rights, including women’s human rights.

In 2014, the Selangor Fatwa Council issued a fatwa declaring the Sisters in Islam a “deviant organisation”.

For many years, Sisters in Islam has been promoting more egalitarian interpretations of Islamic laws with the aim of ending discrimination against women and achieving equality in the Muslim family.

“For women to fully exercise their religious freedom, they must be able to retain or adopt the religion of their choice, and they must be able to continue belonging to this religion without being discriminated against within the religion,” said Emerlynne Gil, ICJ’s senior international legal adviser.

The ICJ stressed that under international law, states have an obligation to protect people who are prevented from exercising their religious freedom by private actors, such as their own religious communities.

“The Malaysian government, including the judiciary, has the obligation to protect groups like Sisters in Islam when they face persecution from within their religious communities for propounding alternative views about their religion,” said Emerlynne Gil.

Furthermore, the ICJ had previously underscored in a 2019 briefing paper on the challenges to freedom of religion or belief in Malaysia, the tensions emerging from jurisdictional disputes between civil courts, which apply federal and state laws, and Sharia courts, which apply Islamic laws.

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In 2018, the UN Committee on the Elimination of Discrimination against Women, in reviewing the performance of Malaysia, voiced its own concern over “the existence of a parallel legal system of civil law and multiple versions of Sharia law, which have not been harmonised in accordance with the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw)”.

The Cedaw Committee concluded that this leads to a gap in the protection of women against discrimination, including on the basis of their religion”.

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