Dating back to 2014, the Selangor Fatwa Committee had issued an edict (fatwa) declaring Sisters In Islam (SIS) as ‘deviant from the teachings of Islam’, who subscribes to ‘liberalism and religious pluralism’. five years on, a decision has finally been made based on the merits of the case and in regard to the matters on the jurisdiction in response to SIS’ application for judicial review.
Huge step backwards on jurisdiction
The High Court had dismissed the application by SIS with Judge Datuk Nordin Hassan ruling that the civil court has no jurisdiction to hear the judicial review application brought by SIS. Pursuant to Article 121A of the Federal Constitution, the Judge suggests that the civil court has no jurisdiction relating to ‘hukum syarak’ of Syariah Law. “In my view, the fatwa issue is related to Syariah Law and it is the exclusive jurisdiction under the Syariah Court.” Judge Datuk Nordin said. The Judge also uses this argument to distinguish the decision of the Federal Court in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals (“Indira Gandhi”) and proclaims that the former case was related to Muslim converts instead of Islamic law. This in itself reflects a huge step backwards in the conundrum concerning civil and syariah jurisdiction.
To address the issue, we must first look at the status of both courts in order to establish their grounds. The court system in Malaysia is established by Article 121 of the Federal Constitution. This Article expressly created only three courts: namely the High Court, Court of Appeal, and Federal Court. Besides that, it also empowers federal law to make inferior courts: ‘… and such inferior courts as may be provided by federal law’. This means that any other court not mentioned above is considered as an inferior court. For example, the Sessions Court and Magistrates Court established by the Subordinate Courts Act 1948. As the Syariah courts are ‘state courts’, it follows that the same applies to them. The Ninth Schedule of the Constitution indicates which areas of law they can hear. In essence, there are 26 areas and they are contained to matters such as inheritance, marriage, establishment of mosques, and so on. Specifically, the relevant areas in this case are in regards to (a) the control of propagating doctrines and beliefs among persons professing the religion of Islam and (b) the determination of matters of Islamic law and doctrine and Malay custom.
b. Exclusive jurisdiction on Islamic Law?
The first issue with the decision is the argument that civil courts have no jurisdiction over the application as it pertains to matters of Islamic Law included under the Ninth Schedule. However, even by distinguishing Indira Gandhi, the Syariah court is not necessarily granted with exclusive jurisdiction over Islamic laws. In Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor & Ors, the Federal Court held that ‘state law could not possibly confer the power to interpret the term ‘percepts of Islam’ because (a) the ascertainment of Islamic law and other personal laws for purposes of federal law is a federal matter; (b) any question whether law is made within the power of a state; and (c) interpretation of the Federal Constitution is a matter for the High Court.” This was echoed in Indira Gandhi where it was held that “regardless of the label that may be applied to the subject matter, the power to review the lawfulness of executive action rests solely with the civil courts.’ This demonstrates that the jurisdiction relating to judicial review applications remains with the civil courts.
Article 121(1A) states that ‘The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.’ At first instance, it can be taken to mean that when an issue falls under the areas of law in which the Syariah courts can hear, the civil courts (High Court, Court of Appeal and Federal Court) will have no jurisdiction over it. However, the Federal Court in the Indira Gandhi trial stated that this was not the case, clarifying that interpreting it ‘to exclude or oust the jurisdiction of civil courts.. is flawed.’ It also indicated that ‘the inherent judicial power of civil courts in relation to judicial review and questions of constitutional or statutory interpretation is not and cannot be removed by the insertion of clause (1A)’. Taking this into consideration, this would mean that the article must not be interpreted in isolation but instead read in conjunction with other provisions such as Article 121(1) and against the background of the principles underpinning the Constitution.
Upholding the fatwa is problematic
a. Jurisdictional grounds of the Selangor Fatwa Committee in respect of SIS:
In reference to item 1, State List, Ninth Schedule of the Federal Constitution, the jurisdiction of the Respondents is only over ‘persons professing the religion of Islam’.The use of ‘persons’ and ‘profess’ here would refer only to natural persons and thus would suggest that SIS, as a company cannot possibly hold such character nor ability. The fatwa was therefore made in excess or want of jurisdiction. However, the decision made by Judge Nordin was that SIS fell under the jurisdiction as the judge interpreted it to include the ‘directing minds’ of the company. As the directors of SIS are all Muslim and their activities related to Islamic laws, he held that the fatwa was applicable. The Court included that SIS ‘should not be immune’ from having the Selangor fatwa applied on it, although it is a company — which is usually considered a separate legal entity from its directors. Thus this decision has granted wide arbitrary powers to the state fatwa authority, specifically the dangerous precedence that it sets for corporate entities in Malaysia that have Muslim individuals as their ‘directing minds’ as they could potentially be subjected to Syariah jurisdiction even if they are not constituted as a legal person.
Additionally, he ruled that, justice in this regard warranted the lifting of the corporate veil in respect to the first applicant. To clarify, the corporate veil exists to separate the personality of a corporation from the personalities of its stockholders, protecting them from the company’s debts and obligations. It will be lifted to prevent the use (or abuse) of a company to evade responsibilities especially in circumstances such as fraud as stated in Section 540 of the Companies Act. This was demonstrated in the case of Dato’ Prem Krishna Sahgal v. Muniandy Nadasan & Ors where a managing director of a since closed-down company attempted to appeal against a fraudulent trading claim by his former employees. The Federal Court found that the company’s funds had been siphoned out through various means, including to companies linked to the managing director, and ruled against him. From this, we can see that the exceptions in lifting the corporate veil require high standard(s) of abuse of a company and so begs the question whether SIS’ activities can be regarded in such manner. Given the outcome of the case, it seems that courts can now authorise a lifting of the corporate veil in any instance in which they deem there is an abuse.
b. The fatwa violates Article 10(2)(a) of the Federal Constitution:
The legislative power of the State is bound by the Constitution and the court has the power to declare any Federal or State law invalid if the said law is incompatible with the Constitution. In its application, SIS concluded that the fatwa was an infringement on their freedom of speech and expression under Article 10(1)(a) of the Federal Constitution. Even though freedom of expression is not absolute and the State legislature can restrict freedom of speech, it must be shown that the fatwa falls under one of the exceptions in Article 10(2)(a). This would include restrictions in the interest of security of the Federation or any part thereof, international relations, public order, morality, protection of the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence. It is difficult to see how the work conducted by SIS would come in conflict with the above given their proactive goal in supporting Malaysian Muslim women and advocating for the elimination of injustice and discrimination within the framework of justice and equality in Islam. In fact, their work would actually be in such interest rather than against. Nonetheless, Judge Nordin decided that there was no such infringement within the fatwa. This decision essentially challenges the Constitution in regards to Article 10. It must be emphasised that Article 4(1) provides that the Constitution is the supreme law of the Federation and any law passed which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. Hence, upholding the fatwa in this respect would curtail fundamental freedoms enshrined in our Federal Constitution.
This case demonstrates the prolonged conflict of jurisdictions in the Malaysian legal system despite progress made over the years. Although the Federal Constitution stipulates the separation of power between civil and Syariah matters, cases like such demonstrate there are still areas that can create conflict and cause havoc in society. Jurisdictional matters aside, the real battleground perhaps will lie in the way and manner in which courts choose to uphold fundamental liberties for cases with religious overtones in Malaysia. It appears that when faced with such conflict, the courts focus their attention on technicalities of the law rather than the merits of the case. As the High Court’s decision stands, the socio-religious, political and even commercial repercussions are yet to be revealed. While the fatwa continues to hang over their heads, SIS members vow to continue championing the rights of women in Malaysia.
 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545
Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor & Ors  6 MLJ 863
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545, para. 92.
Dato’ Prem Krishna Sahgal v. Muniandy Nadasan & Ors  6 MLRA 1