THE Federal Court today reserved its decision on a legal action brought by SIS Forum (Malaysia) to challenge a Selangor Islamic enactment provision that empowers the Shariah High Court to review fatwa issued by the state religious authorities. 

A nine-member panel, chaired by Chief Justice Tengku Maimun Tuan Mat, reserved judgment after hearing submissions by counsel Malik Imtiaz Sarwar, who appeared for SIS as the petitioner and Selangor state legal adviser Salim Soib@Hamid, who represented the Selangor government as the respondent.

Counsel Zainur Zakaria and Mohamed Haniff Khatri Abdulla, who acted for the Selangor Islamic Religious Council as interveners, also submitted during the virtual proceedings.

“We will CAV (curia advisari vult) for the matter. We adjourn this case,” said Tengku Maimun.

The others on the bench were Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang.

On September 22 last year, the Federal Court allowed SIS’s application to obtain leave to pursue its legal challenge in the Federal Court through Article 4(4) of the Federal Constitution.

SIS sought leave to commence the challenge seeking to declare section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 invalid.

Section 66A states that the Shariah High Court may, in the interest of justice, on the application of any person, have the jurisdiction to grant permission and hear the application for judicial review on the decision made by the majlis (council) or committees carrying out the functions under this enactment.

At the outset, Malik submitted that the power of judicial review was intrinsic and inherent in the judicial power of the civil courts. 

“This power is exclusively vested in the civil courts. Such power can only be exercised by the courts established under Part XI of the Federal Constitution. As noted in Indira Gandhi’s case, shariah courts are not such courts and, therefore, cannot exercise the power of judicial review,” the lawyer said.

SIS filed the application in January and named the Selangor government as the respondent.

The High Court in Kuala Lumpur on August 27 last year dismissed SIS’s judicial review application to challenge the decision of the Selangor fatwa committee, which declared it a deviant organisation that had deviated from the true teachings of Islam.

The then High Court judge Nordin Hassan (now Court of Appeal judge) held that the civil court has no jurisdiction pertaining to shariah law, adding that the fatwa issue was related to shariah law and it was under the exclusive jurisdiction of the shariah court.

Nordin said section 66A was an avenue to seek a judicial review against the fatwa committee in the Shariah High Court.

However, the High Court’s dismissal of SIS’s judicial review is pending in the Court of Appeal. – Bernama, October 12, 2021.