KUALA LUMPUR, Feb 21 — A nine-judge panel at the Federal Court today unanimously declared that the Selangor state legislative assembly has no authority to make an enactment giving the Shariah courts the power to carry out judicial reviews of Islamic authorities’ decisions.

Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the panel, said the Federal Court finds Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 — the Selangor state law that attempted to give Shariah courts the power to hear and decide judicial reviews — to be against the Federal Constitution.

"I find Section 66A is unconstitutional and void as it is a provision which the Selangor state legislative assembly has no power to make,” the judge said in the decision delivered online through the video-conferencing platform Zoom.

Among other things, the chief justice stressed that the Federal Court had in previous cases already decided that the power of judicial review is uniquely held by and to be exercised only by the civil courts.

Today was the delivery of the Federal Court’s decision on an application by Sisters in Islam (SIS) — via SIS Forum (Malaysia) Bhd — to have Section 66A declared as invalid.

In January 2020, SIS Forum had filed an application to the Federal Court for leave to challenge Section 66A and named the Selangor state government as its respondent. The Federal Court later allowed the Selangor Islamic Religious Council (Mais) to be an intervener or to be part of the case.

The Federal Court had in September 2020 granted leave for the application to be heard, and the nine-judge panel had on October 12 last year heard the arguments by all those involved in the case.

By ruling in favour of SIS Forum today, the Federal Court effectively granted what the company sought, namely a declaration that Section 66A is invalid on the grounds that it makes provision regarding a matter which the Selangor state legislature has no power to make laws on, and that Section 66A is therefore null and void.

What the Federal Court said about the powers of judicial review

First, a quick look on Section 66A provision in the Selangor state law which tried to enable 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.”

The chief justice today examined the phrase "judicial review”, before going on to say that it is Article 4(1) of the Federal Constitution that gives the civil superior courts the jurisdiction or powers to exercise judicial review. (The superior civil courts refer to the High Court in Malaya and the High Court in Sabah and Sarawak, the Court of Appeal and the Federal Court, which are all in the civil courts.)

Based on Article 4(1) that states the Federal Constitution to be Malaysia’s supreme law and which invalidates any laws that are inconsistent with the Federal Constitution, the chief justice said that the result of this is that the civil federal courts — as the "final interpreter and independent protector of the Federal Constitution” — is the only body capable of exercising judicial review powers over whether laws are constitutionally valid and the related power to review actions by the executive arm of government.

The chief justice pointed out that the Federal Court had in M. Indira Gandhi’s case already decided that the Federal Constitution places the power of judicial review in the civil courts.

"At the risk of repetition, in line with decided cases, the judicial power of the Federation which includes judicial review (constitutional and statutory) is vested by constitutional design solely in the two High Courts,” the chief justice said, referring to the High Court in Malaya and the High Court in Sabah and Sarawak — or essentially the civil High Courts in Malaysia.

While the Selangor state government had argued that the phrase "judicial review” in Section 66A is not the same as the "judicial review” in the civil law sense and refers only to Shariah law and the Shariah courts’ supervisory powers, the Federal Court rejected this claim.

The chief justice pointed out that using the words "judicial review” alone and in a way which enables the Shariah courts to exercise judicial review powers amounts to a bid to assign judicial review powers — "which have always been unique and exclusive to the civil courts” — to the Shariah courts.

The Selangor state government had also argued that Item 1 of the State List (List II of the Federal Constitution’s Ninth Schedule) —- which enables state legislative assemblies to make laws on the "constitution, organisation and procedure of Syariah courts” — as enabling the Selangor state legislative assembly to make Section 66A as law.

However, the chief justice said this portion of Item 1 of the State List regarding to "constitute and organise” merely means to create or establish the Shariah courts in its different tiers, and said the phrase "constitution, organisation and procedure of Syariah courts” cannot be stretched to give the powers of judicial review to the Shariah courts.

Having already earlier stressed it is only the civil courts that has the sole authority to exercise judicial review, the chief justice pointed out the clearly settled boundaries between civil courts and Shariah courts would become obscured or unclear if Shariah courts were to also exercise the judicial review powers belonging to the civil courts.

"Given the settled demarcation of the jurisdiction of the Civil and Syariah Courts, the demarcation will be obscured, should the Syariah Courts exercise and possess parallel powers of judicial review and public law remedies,” the judge said.

Having explained the nature of judicial review and Article 4(1) which declared the Federal Constitution to be supreme and the judiciary as the only one responsible to ensure the Federal Constitution’s supremacy, the chief justice said there was no need for a law or declaration to expressly say that judicial review is a power exclusively placed in the civil courts as it is "ingrained and inherent” in the civil superior courts.

Sultan Sharafuddin Idris Shah speaks during the opening ceremony of the first meeting for the fourth-term of the 14th Selangor legislative assembly in Shah Alam August 23, 2021. ― Bernama pic

Section 66A exceeds what the Federal Constitution allows states to make laws on

In Malaysia, the Federal Constitution’s Ninth Schedule through the legislative lists of List I (the Federal List) and List II (the State List) lists down what the federal government and state governments can make laws on via Parliament and the state legislative assemblies, while List III (Concurrent List) covers matters which both the federal government and state governments can make laws on.

Item 1 in List II only allows state legislatures to make laws on matters such as "Islamic law and 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.

The chief justice said Section 66A goes beyond the Federal Constitution’s list by giving Shariah courts the power to exercise judicial review.

"To my mind, the said section 66A is incompatible with the legislative lists for the reason that the provision when read as a whole confers power on the Syariah Courts far beyond what item 1 of the State List allows,” the judge said.

Citing two previous Federal Court decisions in Indira’s case and Rosliza Ibrahim’s case, the chief justice said the Federal Court had clarified that questions of whether there was compliance written federal laws or written state laws are subject to judicial review when the matter relates to public law powers, regardless what the original subject matter was about.

The chief justice said Section 66A actually seeks to give the Shariah courts wider powers than allowed for under the Federal Constitution’s State List — "Islamic law and personal and family law of persons professing the religion of Islam — as it instead enables the Shariah courts to have the power to judicially review over the public law powers of Mais and not on purely doctrinal matters or those relating to the religion of Islam.

Having noted that Section 66A touches on both Mais and Selangor’s fatwa committee, the chief justice highlighted the difference between the making of a fatwa — or the procedures and laws to be complied with in the process of making a fatwa — and the fatwa’s substantive contents or what the fatwa actually says.

The judge indicated it would be for the civil courts to decide on procedural matters such as when a fatwa committee’s compliance with written federal law or written state law or Federal Constitution is being challenged as only the civil superior courts can issue public law remedies, while it would be purely for the Shariah courts to interpret the actual contents of a fatwa against Islamic law.

While Mais’ lawyer Mohamed Haniff Khatri Abdulla had argued that Section 66A is not unconstitutional as the Shariah courts could follow the clear demarcation of laws and only decide on matters that are substantially about doctrines of Islam, the chief justice said however that whether a law — such as Section 66A — is constitutional should be based on how it was worded and the powers it actually gives, instead of on "guarantees” given by lawyers during court cases.

Noting that Section 66A is clearly worded to allow the Shariah courts to have the powers of judicial review, the chief justice pointed out that the April 7, 2015 Hansard of the Selangor state legislative assembly showed that this provision was enacted with the intention of giving judicial review powers to the Shariah courts.

"It was not apparent on record that section 66A was intended to cover matters of Islamic law only and not matters within the realm of public law and/or public law powers,” the judge said.

The chief justice also indicated it is not permissible for the Federal Court to either "mend” or "remake” a law — when it is worded generally and without limitations — to effectively keep such a law alive, and that its only duty is to strike down the Section 66A and leave it to the Selangor state legislative assembly — if the latter wishes to do so — to reenact the law in a way that is consistent with item 1 of the State List.

Can Mais be interpreted to be a person professing the religion of Islam?

The Federal Court’s short answer to this question would be no.

In this case, SIS Forum’s lawyer Datuk Malik Imtiaz Sarwar had argued that the Selangor 2003 enactment’s Section 2’s definition of Muslim does not comply with the definition of Muslims in Item 1 of the State List as only a "natural person” — an actual human being — can profess the religion of Islam.

Under Item 1 of the State List, Shariah courts are to have jurisdiction over "persons professing the religion of Islam”. Based on Imtiaz’s argument, the Shariah courts cannot have jurisdiction over an artificial person. (Artificial persons are entities created by the law, and would for example include companies or other organisations.)

The chief justice said the opening words of Item 1 of the State List — "Islamic law and personal and family law of persons professing the religion of Islam” — indicates that the Shariah courts’ jurisdiction was intended to cover those subjected to personal laws which would only apply to natural persons.

"Further, 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,” the chief justice said, referring to the Federal Court’s 1998 decision in Kesultanan Pahang v Sathask Realty Sdn Bhd which found that an artificial legal person such as a company could not speak Malay or profess Islam in comparison to a natural person or actual human individual.

"The interpretation of the phrase ‘persons professing the religion of Islam’ and reading the purpose of item 1 suggest that item 1 could not have contemplated and was never intended to confer judicial review powers on the Syariah Courts simply by defining the intervener as a ‘Muslim’,” the chief justice said in referring to Mais as the intervener in this case.

"Judicial review, by its very nature, involves supervising administrative bodies by reference to public law powers vested in them. There is no regard to religion,” the chief justice said.

Having said that, the chief justice concluded that Section 66A remains unconstitutional.

The other eight judges in the panel who agreed with the decision delivered by the chief justice are the top three judges (Court of Appeal president Tan Sri Rohana Yusuf, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim) and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat, Datuk Zaleha Yusof, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

The full judgment numbering 38 pages can be read here.

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

When contacted by Malay Mail after the decision was delivered, SIS Forum’s lawyer Datuk Malik Imtiaz Sarwar highlighted the importance of the Federal Court’s decision today in clarifying the legal position and laws in Malaysia.

"The decision is extremely important as it makes clear the demarcation between the Civil courts and the Shariah courts, as well as the limits on the State legislative assemblies when enacting so-called Islamic laws. 

"The decision is welcome for making clear, and reiterating that, the constitutional design of our federal system reposes judicial power exclusively in the civil courts, and that these courts are the guardians of the constitution which, as the court has once again reminded, is the supreme law.

"This decision and that in the Iki Putra decision has gone a long way to clear up many of the ambiguities that have been so divisive these last 2 decades. 

"It’s been a long trek since the early 2000s to get here,” he said.

In Malaysia, the administration of Islam is generally governed through state laws made by the respective state governments, as religious matters relating to Islam comes under the respective states (except for the Federal Territories which would have their Islamic affairs governed through laws made in Parliament). What is casually referred to as state Islamic laws by the public are actually enactments or ordinances or essentially state laws that are made through the state legislative assemblies, just like state laws on other matters not related to Islam and which the states are empowered to make laws on under the Federal Constitution.

Imtiaz also gave credit to the other lawyers who assisted in SIS’ case, namely Fahri Azzat, Surendra Ananth, and Ameerul Aizat Noor Haslan.

The Selangor state government was today represented by Selangor state legal adviser Datuk Salim Soib @ Hamid, state assistant legal adviser Nur Irmawatie Daud and assisted by state legal officer Muhammad Haziq Hashim, while Mais was represented by Zainur Zakaria, Datuk Zainul Rijal Abu Bakar, Mohamed Haniff Khatri Abdulla, Abdul Rahim Sinwan and Azman Marsaleh.

Lawyer New Sin Yew held a watching brief for the Malaysian Bar.

What led to today’s case

SIS Forum had in October 2014 filed a court challenge against Mais’ July 2014 fatwa which had labelled the company to be deviant from the teachings of Islam.

While SIS Forum’s lawsuit was ongoing in the civil courts, the Selangor 2003 enactment was amended in 2015 to introduce the new Section 66A which gave powers to the Shariah courts in Selangor to exercise judicial review powers. 

The Section 66A provision took effect from May 2015, and the High Court had in March 2016 recorded Mais and SIS Forum as agreeing that Section 66A had no effect on the SIS Forum lawsuit that was filed in 2014.

The High Court in June 2016 decided that it had no jurisdiction to hear the lawsuit, with the SIS Forum then appealing the matter and which later resulted in both the Court of Appeal and Federal Court sending the lawsuit back to the High Court to decide.

When the High Court in August 2019 dismissed the lawsuit and cited Section 66A as part of its reasons, SIS Forum — through which Sisters in Islam operates — then filed an appeal to the Court of Appeal. That appeal has been put on hold pending today’s application.

Apart from the appeal, SIS also filed an application to the Federal Court to challenge Section 66A’s validity, and this was the application that was decided on today.

But in case anyone gets confused, the chief justice had already made clear that the Federal Court’s decision today is not about whether Mais’ July 2014 fatwa’s contents or the procedure in which the fatwa was made was valid or not, and also clarified that the Federal Court was not being asked to decide whether the civil courts have the power to make such an evaluation.

"This petition concerns only the question of whether the Selangor State Legislative Assembly was empowered to enact section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003. I therefore make no comment or ruling on the substantive or procedural validity of the Fatwa,” the judge said.