Selangor Islamic bodies want seven Federal Court judges recused from SIS's fatwa challenge; appeal hearing now pushed to Nov 14

KUALA LUMPUR, Aug 14 — Ahead of the Federal Court’s hearing of Sisters in Islam’s (SIS) appeal in its court challenge against a 2014 fatwa in Selangor which labelled it as deviant, Selangor’s Islamic bodies want seven Federal Court judges to be excluded from hearing the case.

The Federal Court was initially scheduled to hear the women’s rights group’s appeal on August 19, but the hearing date has now been rescheduled to November 14, SIS’s lawyer Surendra Ananth told Malay Mail when contacted today.

According to Surendra, it was mentioned during the Federal Court’s case management yesterday that the Selangor fatwa committee wanted seven Federal Court judges to not be part of the panel that will hear the case.

The Selangor fatwa committee’s argument was that the seven judges had previously been part of a nine-judge panel which decided on a related legal question on the constitutionality of a 2003 Selangor state law’s Section 66A.

Surendra said the Selangor Islamic Religious Council (Mais) and the Selangor state government also supported the Selangor fatwa committee’s request to exclude the seven judges.

According to Surendra, Selangor and the two Selangor bodies’ position is that this matter should be brought to the seven judges’ attention for them to decide on whether to recuse themselves.

Surendra said SIS had objected to the bid to recuse six of the seven judges, as it argued that there is no basis to exclude them. However, it did not object to one judge being excluded, as this judge had previously decided in a lower court on this case that is now being appealed.

Surendra said the court has yet to decide on the request to recuse the seven judges.

The panel of judges hearing a case would usually be known to the public on the day of the hearing.

Currently, the Federal Court has 13 judges, including the top three in the judiciary (as the Chief Judge of Malaya position is still vacant). The Federal Constitution also enables Court of Appeal judges to sit as a Federal Court judge in panels at the Federal Court if required for the interests of justice.

Typically, appeals at the Federal Court would be heard and decided by a panel of five judges. The Federal Court would have panels of seven judges for cases of public interest and panels of nine judges for cases of constitutional importance.

What is this case about?

In the upcoming appeal by SIS, the Federal Court is being asked to hear and decide on 10 main legal and constitutional questions, including whether a court can treat a company incorporated under the Companies Act 1965 or Companies Act 2016 “as a person professing the religion of”.

Those 10 questions also include whether a fatwa becomes a form of subsidiary law or delegated legislation once it is published in the gazette under the Administration of the Religion of Islam (State of Selangor) Enactment 2003’s Section 48(6); and if that’s the case, whether the civil court has the jurisdiction to judicially review the making of a fatwa or gazetting of a fatwa, including on the grounds of constitutionality and illegality.

The Federal Court’s expected hearing in November of SIS’s appeal would be part of its 10-year-long legal battle to challenge the Selangor fatwa committee’s 2014 fatwa.

SIS operates via the company SIS Forum (Malaysia) Bhd, and this company is the one carrying out the legal and constitutional challenge in court.

The 2014 fatwa had labelled SIS Forum (Malaysia) and any individuals, organisations or institutions holding on to liberalism and religious pluralism beliefs as deviant from the teachings of Islam. The fatwa did not explain or define the phrase “liberalism and religious pluralism”.

The fatwa had also said any publications with elements of liberalism and religious pluralism should be declared “haram” (forbidden) and can be seized, and that the Malaysian Communications and Multimedia Commission (MCMC) should block any social websites which goes against the teachings of Islam and Shariah codes, and also declared that any individuals holding on to liberalism and religious pluralism beliefs should repent and return to the path of Islam.

In the protracted and lengthy legal battle, the High Court had on August 27, 2019 dismissed SIS Forum’s legal challenge of the fatwa as it decided that the Shariah courts should hear and decide the case.

The Court of Appeal in a 2-1 ruling on March 14, 2023 decided to dismiss SIS Forum’s appeal. The appeal that the Federal Court is scheduled to hear on November 14 is on this Court of Appeal decision.