SIS goes to Federal Court to challenge Selangor syariah law linked to fatwa review

Women’s rights group Sisters in Islam (SIS) has gone to the Federal Court to strike down a Selangor state law that empowers state Syariah High Courts to review fatwa issued by the state religious authorities.

SIS Forum (Malaysia), through legal firm Messrs Fahri & Co, filed the Notice of Motion at the Federal Court Registry at the Palace of Justice, Putrajaya, on Jan 21.

According to cause papers sighted by Malaysiakini today, the group seeks leave from the apex court to commence the legal action that seeks, among others a declaration that section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is invalid.

Section 66A states that Syariah High Courts in Selangor has the jurisdiction to hear judicial review against the decisions of state religious councils or committees.

On Aug 27 last year, the Kuala Lumpur High Court dismissed SIS’ judicial review application against a Selangor religious authority’s fatwa that the group is deviant.

On that day, Justice Nordin Hassan ruled that it was within the exclusive jurisdiction of the Selangor Syariah court to determine legal challenges against a fatwa issued by a state religious committee, citing Section 66A.

According to an Affidavit in Support of the Notice of Motion signed by SIS Forum (Malaysia) executive director Rozana Mohd Isa, the Selangor state legislature does not have the power to enact section 66A because Item 1, List II (State List), 9th Schedule of the Federal Constitution only permits the state legislature to enact Syariah-related laws involving persons professing the religion of Islam.

She pointed out that by contrast, section 66A grants jurisdiction to the Selangor Syariah court over the councils and fatwa committees, which are not persons professing the religion of Islam.

“First, the SSL (Selangor state legislature) can only confer jurisdiction on the Syariah Court over persons professing the religion of Islam. 

Section 66A of the 2003 Enactment confers the Syariah Court jurisdiction over the Majlis and the Fatwa Committees, which are not persons professing the religion of Islam.

“Secondly, the SSL can only confer jurisdiction on the Syariah Court in respect of the matters in Item 1 of the State List (of the Federal Constitution). The power of judicial review is not included in the said Item.

“Further, and in any event, the power of judicial review is part of the basic structure of the Federal Constitution and is exclusively vested with the civil High Courts. The SSL does not have the power to confer the Syariah Courts with such power,” she said.

Rozana said that SIS also seeks a declaration to strike down certain sub-definition of “orang Islam” (Muslim) under section 2 of the 2003 state enactment, namely the Selangor Islamic Religious Council.

She said that other sub-definition of “orang Islam” under Section 2 that SIS seeks to challenge are: a person either or both of whose parents were at the time of the person’s birth, a Muslim; a person whose upbringing was conducted on the basis that he was a Muslim; a person who is commonly reputed to be a Muslim; and a person who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim, whether the statement be oral or written.

Rozana said that SIS seeks to strike down these sub-definition of "orang Islam" under Section 2 as the Selangor state legislature has no power to make such laws.

According to the online cause list at ecourtservices.kehakiman.gov.my, the legal action is set for e-Review case management before the Federal Court Registry at Putrajaya at 10am tomorrow (Feb 14).

e-Review is a form of teleconferencing that allows parties in a legal action to partake in case management without physically coming to court.

Following last year’s High Court ruling that dismissed SIS’ judicial review against the fatwa, the group has since filed an appeal against the verdict at the Court of Appeal.

On Jan 23 this year, it was reported that the High Court allowed SIS’ application to stay the ruling, pending disposal of the group’s appeal at the Court of Appeal. - Mkini

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