PUTRAJAYA (March 14) : Non-governmental organisation Sisters in Islam (SIS) has failed to challenge a fatwa by the Selangor Islamic council (MAIS) in 2014, which declared the organisation as promoting liberalism and pluralism, and is therefore considered as deviant.
This follows the Court of Appeal majority 2-1 decision that upheld the High Court decision dismissing SIS' legal challenge against the fatwa.
Judge Datuk Has Zanah Mehat and Datuk Che Mohd Ruzima Ghazali are in the majority, while Datuk M Gunalan is the dissenting judge.
Che Mohd Ruzima in his majority decision ruled that there is no merit that warranted appellate intervention in the case.
Meanwhile, Gunalan, in his minority decision, allowed the appeal where he ruled the High Court judge had erred in law to judicially appreciate that the fatwa is considered to have exceeded its jurisdictional competence and SIS had correctly and rightly challenged it.
However, due to the majority decision, the challenge by SIS on the fatwa failed.
The bench made no order as to costs.
SIS counsel Datuk Malik Imtiaz Sarwar applied for a stay of the decision, pending his filing of an Erinford injunction for the matter to remain status quo.
An Erinford injunction is an injunction granted to an applicant to preserve the status quo pending the conclusion of an appeal.
Che Mohd Ruzima said while the appellate court bench recognised the Federal Court's landmark decision in the SIS case last year that no Syariah Court had the power of review, which is only held by the civil court, the majority felt that the decree falls under the administration of the state's Islamic law.
“This fact is not the same or equates to having a legislation. This brings a situation that fatwa is not seen as being ultra vires (beyond the powers) [of] the Selangor Shariah Administration. It (The fatwa) does not have a binding effect in the state,” he said.
The judge said since SIS is also an organisation and not a proper person, the fatwa has no effect and if it affects the person, all they have to do is taubat (repent).
The judge however said that matters concerning Islam are still within the purview of the Shariah Court and this civil court was not a competent venue to challenge it.
Gunalan meanwhile said he could not agree that the fatwa or pronouncement was merely obiter (a judge's comment) and felt that the fatwa had exceeded its jurisdiction by declaring SIS — which is a NGO and corporate body — as deviant.
He said it is the exclusive jurisdiction of the High Court and superior court, and that only civil courts can decide on constitutional issues and public law remedy.
He added that an organisation cannot be said to be professing the religion of Islam.
“The learned High Court judge plainly erred in deciding that a fatwa could be issued to the company. There is no basis whereby the controlling mind which is the company itself is seen as professing the faith of Islam. This is a wrong approach in law and requires appellate interference,” the appellate judge ruled in the minority decision.
Datuk Zainul Rijal Abu Bakar appeared for the Selangor Islamic Department, while Yusfarizal Yusof appeared for Mais, and Selangor Legal adviser Datuk Salim Soib appeared for the Selangor government.
Malik indicated he would file the injunction application within a week.