The recent decision of the Kuala Lumpur High Court in dismissing Sisters in Islam’s judicial review application against a fatwa by Selangor religious authorities declaring it as ‘deviant’ is disturbing.
SIS has been battling in court for five years to challenge the constitutionality and legality of how this fatwa was made.
According to reports, the High Court judge has ruled that the civil courts have no jurisdiction on this type of case and that any further remedy musts go through the Sharia court.
Further, it is reported that the High Court judge ruled that the fatwa was applicable to SIS although it is a company (companies and directors are usually considered separate legal entities) given that the directing minds are Muslims and their activities touch on Islamic law.
This is a major decision which carries implications fundamental to our basic governance. Some of these have been captured in the dissenting legal opinions which have been put forward.
These include that judicial powers are vested exclusively in the civil high courts and their jurisdiction and powers are not confined to Federal Laws.
Furthermore, the powers of judicial review and constitutional interpretation are fundamental components of the civil courts’ judicial power under Article 121(1) and are not negated when the subject matter involves Islamic issues.
There is the argument that Sharia courts have no jurisdiction over companies and that the corporate veil can only be lifted in instances of fraud – which is not justified in this case.
There is also the view that the High Court ruling has contravened the constitutional right to freedom of religion, and a fatwa cannot override an act of Parliament or the Constitution, which is the supreme law of the land.
In a multi-ethnic multi-religious country such as ours, it is important that decisions about our constitutional freedoms are continually monitored and, if necessary, challenged. This ruling is a case in point.
Aliran executive committee
2 September 2019