PUTRAJAYA, Sept 22 ― The Federal Court today allowed Sisters in Islam (SIS) to proceed with its hearing to seek for a court declaration to invalidate a Selangor state law which enables Shariah courts to carry out judicial review of decisions made by its state religious authorities.

Federal Court judge Datuk Zabariah Mohd Yusof decided to grant leave for SIS to pursue its legal challenge at the Federal Court via Article 4(4) of the Federal Constitution.

"I have read the written submission and the application. This is my decision. I am allowing paragraph 1.1, because I consider it is within Article 4(4) and Article 4(3),” the judge said.

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.

In paragraph 1.1 of its application, SIS had sought for leave to start court proceedings to seek a declaration that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is invalid on the ground that it makes provision regarding matters which the Selangor state legislature has no power to make laws on, and that Section 66A is therefore null and void.

Today was the Federal Court's hearing of the application by SIS Forum (Malaysia) Bhd for leave to initiate its challenge against Section 66A, with the Selangor state government named as the respondent.

The Section 66A provision in the Selangor state law enables the Shariah courts in Selangor to carry out the judicial review function: "The Syariah 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.”

Before making her decision, Zabariah had heard arguments from lawyers for both SIS and the Selangor state government.

Lawyer for SIS Fahri Azzat argued 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.

Citing Item 1 of the List II or State List in the Federal Constitution’s Ninth Schedule, Fahri noted that the Constitution only allows state legislatures to make laws on matters such as "personal and family law of persons professing the religion of Islam”, and for the "constitution, organisation and procedure of Shariah courts” which are to only have jurisdiction over "persons professing the religion of Islam” and over matters listed such as personal and family law for Muslims.

Fahri also argued that Selangor state religious bodies such as Mais and Jais are not natural persons, and would therefore not fall within the category of "persons professing the religion of Islam”.

"There is no competency for the state to enact provisions for judicial review. So My Lady, we say Section 66A is incompetent for two reasons — the first as I said just now, it is not a subject matter that falls within this field.

"Secondly, Section 66A purports to exercise jurisdiction over the Majlis or its committees, My Lady, and these are not persons professing the religion of Islam, because they are not a natural person,” he said.

Instead of the state governments, Fahri 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.

Fahri also argued that SIS’s application for leave to challenge Section 66A is an arguable case and not a frivolous case.

He then referred to the Federal Court’s decision in the case involving M. Indira Gandhi, where the apex court had noted that the constitutional safeguards for judicial independence — such as for the qualifications, appointment, security of tenure, remuneration and removal of judges — do not apply to Shariah judges.

Fahri also said the Federal Court in Indira’s case had also noted the limits of the Shariah courts’ jurisdiction, where it was noted that the Shariah courts may not exercise the civil courts’ inherent judicial powers including the power of judicial review. Fahri said the Federal Court had also said that the Shariah courts’ jurisdiction is clearly limited to private and personal laws, rather than public and constitutional law.

Selangor state legal advisor Datuk Salim Soib @ Hamid, who was representing the Selangor state government, however argued that SIS’s application for leave to challenge was frivolous and asked the Federal Court to reject the application.

Salim 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.

Noting that the Selangor state enactment does not define what "person” mean, Salim said Section 3 of the Interpretation Act defines "person” as "a body of persons, corporate or unincorporate” which he said would also cover Mais, arguing that this meant that Section 66A is in line with the federal law.

Salim 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.

Muhammad Haziq Hashim also represented the Selangor state government today.

Seen in the courtroom today were Sisters in Islam executive director Rozana Isa and Sisters in Islam programme manager Shareena Sheriff.

Lawyer Surendra Ananth (centre) with SIS executive director Rozana Isa and SIS programme manager Shareena Sheriff (right) are pictured at the Palace of Justice in Putrajaya, September 22, 2020. — Picture by Shafwan Zaidon

Why the Section 66A challenge is important

Lawyer Surendra Ananth, who was also representing SIS today, explained that the application for leave was to challenge the constitutionality of Section 66A which grants the Shariah courts the power of judicial review.

"The reason why we brought it directly to the Federal Court was because the grounds of challenge was that the Selangor state assembly does not have the power to make the law. Reason being the power of judicial review is not in the state list and it only covers person professing the religion of Islam so it is beyond the ambit of state list.

"So today was the leave application and all we had to show was that the challenge is not frivolous, we have an arguable case. The state objected on the basis that it was a frivolous challenge. The judge disagreed and allowed leave,” he said to reporters when met immediately after the Federal Court’s decision today.

The reason why SIS was challenging the validity and legality of Section 66A was due to the High Court having previously cited this provision to say that SIS Forum should have gone to the Shariah courts to file a judicial review application there, Surendra said.

"But the problem with that is that SIS Forum is a company,” he said, pointing out that companies cannot profess a religion and would have to go to the civil courts to pursue judicial review instead.

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.

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, Surendra said.

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.

When asked about the status of the fatwa, Surendra said the Selangor state government cannot enforce the fatwa now as the related court case has yet to be resolved.

"The fatwa has now been stayed by the High Court, we filed for a stay at the High Court after we lost in the High Court and the Court granted our stay pending the appeal. The fatwa has been put on hold / suspended until our appeal in the Court of Appeal is disposed of,” he said.