Federal Court upholds that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is unconstitutional

This is proof that the Federal Constitution is supreme and the state may not overreach and exclude the judiciary in the decision-making process

The Federal Court has unanimously decided

Sisters in Islam (SIS) welcomes the Federal Court’s decision declaring Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 – which states that the Sharia high courts have the jurisdiction to hear judicial reviews against the decisions of state religious councils or committees – as unconstitutional.

Section 66A of the enactment only came into force on 22 May 2015 after SIS had obtained leave by the High Court to be heard for a judicial review of a fatwa issued against SIS in July 2014.

The hearing, which was held online, was presided by Federal Court judges Rohana Yusuf, Azahar Mohamed, Abang Iskandar Abang Hashim, Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang and chaired by Chief Justice Tengku Maimun Tuan Mat.

“The decision by the Federal Court to invalidate Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (ARIE) on the grounds of unconstitutionality is proof that the Federal Constitution is supreme and the state may not overreach and exclude the judiciary in decision-making process. With this matter now resolved, we can now focus on our pending appeal case in the Court of Appeal,” SIS executive director Rozana Isa said.

She continued: “The Federal Court asserts that judicial review is an inherent right of the civil courts. The judgment also included that the interpretation of the courts on the definition of Muslims as natural persons was also ground-breaking. However, we are also cautious of the Federal Court judgment on the issue of the content of the fatwa, which was decided to be still under the purview of the syariah courts.

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“We still have a long way to go as SIS’ journey to maintain the right to speak on justice and Muslim women’s rights is far from over. Regardless, SIS will continue on to fight for Muslim women’s rights despite the challenges,” she said.

Previously, in a separate action, SIS initiated a judicial review against the Selangor Islamic Religious Council (Mais), the Selangor state fatwa committee and the Selangor state government after the religious body issued a fatwa which declared SIS as deviants for subscribing to liberalism and religious pluralism.

In 2016, SIS had filed a notice of appeal after High Court judge Hanipah Farikullah delivered judgment at the first hearing, stating that the High Court has no jurisdiction to hear SIS’ fatwa case as the subject matter pertains to the religion of Islam, thus falling under the jurisdiction of the Sharia courts.

SIS had won the appeal as the Court of Appeal had instructed the case to be remitted back to the High Court.

However, in 2019, following the respondents appeal against the Court of Appeal’s decision, the Federal Court had ordered the suit to be remitted back to the High Court, which resulted in a disappointing outcome where the application for SIS’ judicial review against the fatwa was dismissed with RM10,000 costs. SIS had then filed for an appeal on this matter.

Despite the ongoing fatwa case, SIS continues to advance the rights of Muslim women and children in Malaysia. For more than 30 years, SIS has been carrying the voices of women from the grassroots to the highest levels of policymaking.

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SIS champions issues such as wife and children’s maintenance, tightening polygamy conditions and enforcement, criminalising marital rape, promoting gender equality in Muslim marriages and Islamic family laws.

SIS also advocates to end harmful practices for children such as child marriage, female genital mutilation, the naming of “bin/binti Abdullah” to children born out of wedlock, and gender-based violence.

Since 2003, SIS has helped over 10,000 women and men through our Telenisa service, a free legal helpline that remains as the only non-judgemental and rights-based advisory service for Islamic family laws and Sharia criminal offences laws in Malaysia today. The data that Telenisa receives is then analysed and published in the Telenisa: Statistics and Findings book annually.

Despite the pandemic since 2020, SIS has continued to advocate and raise awareness to the public through multiple online programmes such as #TelenisaTells, public forums, study sessions and conducted multiple online engagements on reform, Islam and women’s rights. – SIS



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