This is the second part of the SIS Fatwa Case article which focuses on the recent development of the case at the High Court of Kuala Lumpur. To read part one, please visit: https://www.loyarburok.com/2018/11/21/sis-fatwa-case-part1/
In 2014, the Selangor Islamic Religious Council (Majlis Agama Islam Selangor, MAIS) declared the non-governmental organisation Sisters in Islam (SIS) as deviating from Islamic teachings and subscribing to liberalism and religious pluralism. SIS then filed a judicial review in October 2014 to challenge the fatwa. The case went all the way to the Federal Court but it was sent back to the High Court for hearing on merits and jurisdiction. On the 17th of June 2019, after almost five years and two postponements of the court hearing, SIS finally had the occasion to present their defence to the High Court of Kuala Lumpur.
A matter of jurisdiction
According to Surendra Ananth, the lawyer representing SIS, the fatwa violates federal laws as well as the Federal Constitution. When SIS first brought the case to the High Court in 2015, they took the position that the case should be a civil matter. In 2018, the issue of jurisdiction was addressed by the Federal Court in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545 (“Indira Gandhi”). The Federal Court concluded that questions of constitutional or statutory interpretation can only be determined by the civil courts. Importantly, “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”. In the latest hearing, Surendra once again asserted that the civil court has jurisdiction because the issue affects the fundamental rights of not just SIS but all persons professing the religion of Islam, which is something only the civil court can determine. Furthermore, as SIS is a company and not a person professing the religion of Islam, Surendra declared the Syariah Courts do not have the jurisdiction over the case even if the subject matter falls within their jurisdiction. In regard to this, the Respondents declare that Indira Gandhi did not deal with fatwa but the powers of the Registrar of Mualaf. They argued that fatwa is considered Islamic law and is therefore within the purview of the Syariah Court. The Respondents’ lawyer also told the court that the state’s religious officials have authority over the group on grounds that it bears the word “Islam” in its name.
The arguments on the merit
1) The fatwa is ultra vires Selangor Enactment 2003.
The procedure in making a fatwa is laid down under section 48 of the Selangor Enactment 2003. Once a fatwa is gazetted, it is binding on every Muslim in Selangor and all Muslims must obey the fatwa. However, as noted by former Judge Eusoff Chin, “the courts have jurisdiction to declare a fatwa invalid if in making it, the person/body in charge of the rules or regulations, acted outside the legislative powers conferred on him/it by the Act of Parliament.” When the validity of a delegated legislation is questioned, the court can verify if the said power is one which falls within the four corners of the powers given by the legislature.
The power of the Selangor Fatwa Committee and the Selangor Islamic Religious Council to prepare a fatwa is subject to section 51 of the Selangor Enactment 2003. It provides that a different and more extensive procedure involving the National Fatwa Committee needs to be undertaken if the said fatwa is related to or affects national interest. As the fatwa gazetted against SIS expressly directs federal agencies and departments, specifically the Multimedia Communications and Multimedia Commission (MCMC) and the Ministry of Home Affairs to conduct its activities, Surendra claims that the fatwa is clearly one that relates or affects national interest, and the Respondents did not ensure that section 51 of the Selangor Enactment 2003 was complied with. But according to the Selangor Islamic Religious Council, the fact that the fatwa mentions a federal agency does not mean it involves matters of national interest. It further maintains that section 51(1), Selangor Enactment 2003 provides the Selangor Fatwa Committee with the absolute discretion to determine if a fatwa concerns a matter of national interest.
2) The fatwa is contrary to federal laws.
The fatwa against SIS prohibits the publishing of material that has elements of liberalism and pluralism. This means that the fatwa seeks to make the publishing of such material an offence. Nonetheless, the power to prohibit publications is within the discretion of the Minister of Home Affairs under Section 7, Printing Presses and Publications Act 1984 (PPPA 1984), and not the Respondents. In fact, according to the distribution of legislative powers between the Centre and the States, prohibition of publications/censorship falls within the Federal List, Ninth Schedule, Federal Constitution, which is not something the Respondents have jurisdiction on. However, according to the Respondents, the fatwa only directs that publications with “liberal and plural” elements should be prohibited and seized but does not state that it is an offence under the PPPA. Surendra argue that this argument is contrary to section 7, PPPA 1984. In addition, the fatwa wants the MCMC to block social websites that contravene Islamic teachings and Syariah principles. However, as stated under section 3(3) of the Communication and Multimedia Act 1998 (CMA) the Malaysian law does not allow for the blocking or taking down of websites. Thus, the fatwa is contrary to the law.
3) The fatwa exceeds jurisdictional competence of the Respondents in respect of SIS.
According to item 1, State List, Ninth Schedule of the Federal Constitution, the jusrisdiction of the Respondents is only over “persons professing the religion of Islam”. Mohd Azmi, Federal Court Judge decided that persons professing the religion of Islam means “Malay subjects” as referring only to natural persons, and as SIS company cannot possibly speak the Malay or any Malayan language, or profess any religion, the fatwa was therefore made in excess or want of jurisdiction. The Selangor Islamic Religious Council contends that since Article 3(1) of the Federal Constitution states that the religion of the Federation is Islam, it can then attach a religion to a company. But according to Surendra, the court held that the word “Islam” in the said sub-article is confined to personal law (law of marriage, divorce and inheritance) only and not to the entire Federation. Further, Item 1, State List, Ninth Schedule, Federal Constitution specifically uses the word “profess”, meaning to “affirm, or declare one’s faith in or allegiance to” a religion. It does not use words such as “attach” or “place”. Continuing its arguments, the Selangor Islamic Religious Council argues that as SIS’s shareholders and directors are Muslims, thus Islamic laws should apply to SIS (even if it is considered as a company).
4) The fatwa is unconstitutional in three different ways.
A. The fatwa violated the rules of natural justice which guarantees procedural fairness.
It is a constitutional right housed under articles 5(1) and 8(1), Federal Constitution. When the fatwa declared SIS as deviant, it has already passed judgement against SIS and criminalises acts of SIS without a trial. Considering that the fatwa has grave consequences on SIS’s activities, SIS must be given a right to be heard before being declared deviants. In fact, SIS was not even informed that the fatwa was being prepared by the Respondents. As the right to be heard forms part of the rules of natural justice, Surendra pleads that the fatwa is unconstitutional.
In response to this argument, the Selangor Fatwa Committee and the Selangor State Government explain that they do not consider their fatwa as being a decision or a punishment. They further contend that the Fatwa Committee does not have a judicial or quasi-judicial power. Thus, they support that SIS was not entitled to a right of hearing. In fact, the Respondents rely on the theory which states that a fatwa is meant to be a religious opinion. However, the reality is that, except in extremist country, Malaysia is the only country where fatwas are considered law. It is a criminal offence to disobey a fatwa which has been gazetted. Thus, the Fatwa Committee is given law-making powers. The Selangor Islamic Religious Council further states that the violation of the rules of natural justice was never pleaded by the Applicants. Nevertheless, it was specifically mentioned in SIS’s Statement pursuant to Order 53, Rule 3(2), Rules of Court 2012 and in all three affidavits filed by SIS.
B. The fatwa contravenes Article 10(2)(a) of the Federal Constitution.
The legislative power of the State is limited by the Federal Constitution and the court has the power to declare any Federal or State law invalid if the said law is inconsistent with the Constitution. In this case, Surendra argues that the fatwa clearly prohibits SIS from expressing and practicing its religious views and beliefs, and from disseminating any form of publication in line with their beliefs and ideologies. This is an infringement on SIS’s 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), Federal Constitution before a law restricting freedom of expression can be declared constitutional. However, no reference to the permissible exceptions that could justify the fatwa can be found in the Respondents’ affidavits, and hence the fatwa should be declared unconstitutional. Furthermore, even if it is accepted that the fatwa was gazetted pursuant to one of the exceptions, it still must be shown that the fatwa was proportionate, meaning that the law promulgated under article 10(2) must impair as little as possible the right to freedom in question. However, before restricting SIS’s freedom of expression, the court has to determine whether or not SIS is deviant from Islam. As the High Court of Kuala Lumpur is not an expert in Islamic Law, the Respondents must present expert evidence before the court to aid in such determination (requirement of section 45 of Evidence Act 1950). This has not been done. Besides that, SIS argued that their activities in advocating Muslim women’s rights is in line with the notions of justice and compassion which can be found in the Quran and that there is insufficient proof to show that the SIS’s activities are caught within the meaning of “liberalism and pluralism”. According to SIS’s defence, neither the law nor fact justify the publication of the fatwa to restrict the Applicants’ freedom of expression. As such, the fatwa is disproportionate and therefore unconstitutional.
C. The fatwa is unconstitutional for being vague and uncertain.
Nullum crimen sine lege, nulla poena sine lege is a legal principle requiring that there must be no crime or punishment except in accordance with law which is fixed and certain. This is embedded in articles 5 and 8 of the Federal Constitution. It means that any law that seeks to impose criminal sanctions but does not give fair notice regarding what conduct is contemplated as criminal can be declared unconstitutional. In this case, the fatwa declares any act of “pluralism and liberalism”, in a religious sense, a crime, but does not define or even indicate as to what amounts to “pluralism or liberalism”. As such, SIS claims that the fatwa is unconstitutional as it does not provide proper notice to SIS as to what conduct would result in it committing a crime. The Selangor Islamic Religious Council argues that the National Fatwa Committee gave the definition of “liberal and plural” to the public through a fatwa around 2006. According to Surendra, this is not true, as the said fatwa does not define the term “liberal and plural” nor does it state what practices would amount to “liberal and plural”.
At the end of the court hearing, Justice Nordin Hassan ordered all parties to make further submissions to express their views on whether Section 66A of the Islamic Religious Administration (State of Selangor) Enactment 2003 applies in the case. This section allows the Syariah High Courts in Selangor to hear judicial review cases against Islamic authorities. However, in the previous hearing, all parties agreed that it does not apply as it is only effective from May 2015 (seven months after the case was filed in October 2014). The argument from all parties should be made within two weeks and the decision will be fixed on August 20, 2019. If the High Court statutes that it has no jurisdiction, the case will go the Syariah Court. If the High Court decides it has jurisdiction over this case, then they will also decide about the arguments on the merits.
 The 1st Respondent is the Selangor Fatwa Committee (Jawatan Kuasa Fatwa Negeri Selangor) which is responsible for reviewing and issuing fatwas on unsettled issues and controversies that require clarification of Hukum Syarak, with powers vested under sections 46 and 47, Selangor Enactment 2003.
The 2nd Respondent is the Selangor Islamic Religious Council (Majlis Agama Islam Selangor, MAIS), a state department governed by the 3rd Respondent through the Chief Minister’s office. As provided for under section 4, Selangor Enactment 2003. The Selangor Islamic Religious Council is responsible for (inter alia) aiding and advising His Royal Highness the Sultan in matters relating to the religion of Islam.
The 3rd Respondent is the Selangor State Government.
 The Federal Court in its landmark decision in Ketua Pengarah Kastam v Ho Kwan Seng  2 MLJ 152 entrenched the right to be heard in Malaysian law and stated: “The second principle is the rule requiring a fair hearing. This is of central importance because it can be used to construe a whole code of administrative procedural rights.”
 Federal Court decision in Zi Publication (supra)
 Gopal Sri Ram, FCJ in Lee Kwan Woh (supra) said: “It should never be forgotten that courts are the guardians of constitutional rights. A vitally important function of court is to interpret constitutional provisions conferring rights with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford.”