After four years, full hearing of SIS' challenge of 'deviant' fatwa in High Court

SIS lawyer Datuk Malik Imtiaz Sarwar speaks to reporters at the Palace of Justice in Putrajaya September 25, 2018. ― Picture by Shafwan Zaidon
SIS lawyer Datuk Malik Imtiaz Sarwar speaks to reporters at the Palace of Justice in Putrajaya September 25, 2018. ― Picture by Shafwan Zaidon

PUTRAJAYA, Sept 25 ― The Federal Court today decided to send an 2014 lawsuit by Sisters in Islam (SIS) ― over a Selangor fatwa that labelled it as “deviant” ― back to the High Court for a full hearing on its merits.

SIS's judicial review application against the Selangor Islamic bodies have been in courts for almost four years, but the courts had yet to hear the actual substantive merits of the case and had only been dealing with preliminary issues raised by the Selangor Islamic bodies which were trying to stop the case from being heard.

Chief Justice of Malaysia Tan Sri Richard Malanjum, who chaired a seven-man panel at the Federal Court, proposed that all parties return to the High Court for a full hearing to settle matters “once and for all” instead of bringing it to the apex court.

“That will save a lot of time,” he said, before later recording a consent order between all parties involved in the lawsuit.

In the four-point consent order, all those involved including SIS and the Selangor Islamic bodies agreed for the judicial review application to be sent back to the High Court for the latter to decide on the merits of the case.

They also agreed that the Selangor Islamic bodies will be free to raise any issues including its view that the civil High Court has no jurisdiction or power to hear the judicial review matter, and with such arguments to be heard together with arguments on the merits of the judicial review application.

They also agreed that SIS would not raise objections based on “res judicata” ― or the legal doctrine where a matter has already been judged and cannot be pursued further ― by referring to the High Court's previous decision that it has the jurisdiction and its granting of leave for the lawsuit to be heard.

They agreed for the High Court to be directed to decide on all issues raised when it makes its decision on the judicial review application; as well as for the Court of Appeal's March 2, 2017 decision to be set aside.

No hearing date has been fixed at the High Court in Kuala Lumpur yet for this lawsuit. SIS lawyer Surenda Ananth said this case will come up for case management there on October 2.

Five questions

The seven-man panel was initially asked today to decide on five questions of law in an appeal brought by the Selangor Islamic bodies, including whether issues that have already been raised and decided at the hearing for leave for judicial review can be considered “res judicata”.

The questions were also on whether the Shariah Court’s jurisdiction can be implied from or has to be expressly stated in state laws; and whether a fatwa issued under a Selangor state law is within the exclusive jurisdiction of Shariah courts.

The fifth question is on whether a company that “uses the name of Islam and is controlled by those who profess the religion of Islam” can be legally interpreted as being a person that professes the religion of Islam.

But the questions were not heard today, with SIS lawyer Datuk Malik Imtiaz Sarwar telling the Federal Court it should not decide on the issue of whether the civil courts or the Shariah courts had the jurisdiction to hear the lawsuit, as the Court of Appeal had not decided on such matters in its March 2017 decision.

Malik Imtiaz said the Court of Appeal had only decided on the res judicata issue, where it ruled that the Selangor Islamic authorities could not raise the issue of jurisdiction again since the latter had already been decided at an earlier stage by the High Court.

He also argued that the appeal today by the Selangor Islamic bodies had become “academic”.

In the judicial review application filed on October 31, 2014 by three applicants ― the company SIS Forum (Malaysia) which operates SIS; the group’s co-founder Zainah Anwar; and Datuk Zaid Ibrahim, the three respondents named are the Selangor Fatwa Committee, Selangor Islamic Religious Council (Mais) and the Selangor state government.

SIS and the two others today had a legal team of four led by Malik Imtiaz, while the Selangor fatwa committee had a legal team of five led by Datuk Sulaiman Abdullah.

Mais and the Selangor government were represented by a legal team of four and two led by Yusfarizal Yussoff and Datuk Nik Suhaimi Nik Sulaiman respectively.

Lawyer Farah Lina Adam Chuah held a watching brief today for seven organisations, namely the Association of Women Lawyers, Women's Aid Organisation, Women's Centre for Change Penang, Persatuan Kesedaran Komuniti Selangor (Empower), Perak Women for Women, and the Malaysian Centre for Constitutionalism and Human Rights.

The other six judges on the panel today are President of Court of Appeal Tan Sri Ahmad Maarop, Chief Judge of Malaya Tan Sri Zaharah Ibrahim, Federal Court judges Tan Sri Azahar Mohamed, Tan Sri Aziah Ali, Datuk Rohana Yusuf and Datuk Mohd Zawawi Salleh.

The long trek to be heard

Then High Court Judge Datuk Asmabi Mohamad had on December 10, 2014 granted SIS leave for the judicial review to be heard on its merits.

But High Court judge Datuk Hanipah Farikullah had on June 24, 2016 dismissed the case based on a preliminary objection by the Selangor religious authorities on the issue of which court had jurisdiction, ruling that only the Shariah courts have the powers to deal with the fatwa.

This led to SIS appealing successfully to the Court of Appeal to reinstate the lawsuit and for it to be sent back to the High Court to be heard before another judge, but the Selangor religious authorities had on July 11, 2017 obtained leave from the Federal Court for its five legal questions to be heard today.

Malik Imtiaz explained to reporters that the Federal Court would still have to either send the lawsuit back to the High Court to be heard on its merits or to the Court of Appeal for the jurisdiction issues to be decided if it had proceeded with the appeal hearing, noting that the outcome where all parties agreed to send the case back to the High Court now would speed up the matter.

“So either way, the arguments will have to be heard anyway. So to accommodate that and expedite, we were willing to accept that we can go back to the High Court as long as the court deals with the merits of this case and doesn't just stop with the jurisdiction, so whichever way the courts have to hear that and my clients are happy with that,” he said.

Was fatwa against SIS legally made?

SIS' judicial review is over a gazetted fatwa or religious edict in Selangor that declared the advocacy group as “deviants” in Islam due to their alleged religious liberalism and pluralism.

The same religious edict deems any publications with elements of liberalism and religious pluralism as “haram” or forbidden to Muslims, and seizable by religious authorities.

The fatwa also sought for local Internet regulator Malaysian Communications and Multimedia Commission (MCMC) to monitor and block social media websites with content that was against Islam.

During the hearing today and when speaking to the media, Malik Imtiaz clarified that the lawsuit by SIS was not regarding Islamic law, but merely on whether the fatwa issued against it was done legally.

“Here we are not saying that the fatwa is wrong in Islamic law, that's not something we are arguing. We are just saying that the fatwa has gone beyond the legal limits in that it is directed at persons like corporate personalities and it impacts on fundamental freedoms ― association, expression and even diversity within the freedom of religion,” he told reporters.

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