Sis Forum (Malaysia) v XXXX (01(f)-23-09/2023(W))

SIS Forum (Malaysia)

Zainah Mahfoozah binti Anwar … Appellants

Jawatankuasa Fatwa Negeri Selangor 2. Majlis Agama Islam Selangor 3. Kerajaan Negeri Selangor … Respondents Coram: Tengku Maimun binti Tuan Mat, CJ Abang Iskandar bin Abang Hashim, PCA Nallini Pathmanathan, FCJ Abu Bakar bin Jais, FCJ Abdul Karim bin Abdul Jalil, FCJ 2 DISSENTING JUDGEMENT INTRODUCTION [1] This is an appeal against the decision of the majority at the Court of Appeal (“COA”). The majority had affirmed the decision of the High Court (“HC”). The grounds of judgment written by the learned HC judge, Nordin Hassan J (now FCJ) is reported in [2020] 3 AMR 154. The written grounds of the COA, both majority and minority can be seen in [2023] 4 CLJ 449. [2] At the HC, the appellants filed an application for judicial review (“JR”) for a declaration essentially that the Fatwa issued by the first respondent, which is the State Fatwa Committee is invalid and pray for an order of certiorari to quash the said Fatwa. The HC dismissed the application for JR. In turn, the COA by a majority dismissed the appeal and affirmed the decision of the HC. [3] The Fatwa reads as follows:

SIS FORUM (Malaysia) dan mana-mana individu, pertubuhan, atau institusi yang berpegang kepada fahaman liberalisme dan pluralisme agama adalah sesat dan menyeleweng daripada ajaran Islam.

Mana-mana bahan terbitan yang berunsur pemikiran-pemikiran fahaman liberalisme dan pluralisme agama hendaklah diharamkan dan boleh dirampas. 3

Suruhanjaya Komunikasi dan Multimedia (SKMM) hendaklah menyekat laman-laman social yang bertentangan dengan ajaran Islam dan Hukum Syarak.

Mana-mana individu yang berpegang kepada fahaman liberalisme dan pluralisme agama hendaklah bertaubat dan kembali ke jalan Islam. [4] The Fatwa was gazetted on 31.7.2014. The Fatwa gazette stated that the Fatwa was prepared by the Fatwa Committee of Selangor pursuant to a perintah (“directive”) from Sultan of Selangor. SUMMARY OF THE DECISION OF THE HC [5] Article 121(1A) of the Federal Constitution is clear that the Civil Courts have no jurisdiction over matters within the jurisdiction of the Syariah Courts' jurisdiction. Matters within the jurisdiction of a Syariah Court are provided for under Article 74, read together with Item 1 of List II-State List in the Ninth Schedule of the Federal Constitution. [6] The question is whether the “Fatwa”’ falls within the List II-State List in the Ninth Schedule of the Federal Constitution, in particular under the category of ‘the control of propagating doctrines’ and ‘beliefs among persons professing the religion of Islam’ or ‘the determination of matters of Islamic law’. Upon perusal of the Mufti’s affidavit in reply, the learned HC judge (“HCJ”) was of the opinion that the Fatwa gazette pertains to matters of Islamic law which is aimed at controlling or restricting the ideologies of liberalism and pluralism among followers of the Islamic faith. Therefore, the preparation and the publication of the Fatwa gazette are in accordance with the powers within Article 11(4) of the Federal Constitution and s. 47 of the Administration of the Religion of Islam (State of Selangor) 4 Enactment 2003 (“ARIE 2003”). Moreover, all procedures stipulated under s. 48 of ARIE 2003 for the preparation and publication of the Fatwa gazette have been complied with by the first respondent. [7] In addition, s. 66 of ARIE 2003 provides a pathway for any person to apply for JR of the decision of any committee exercising its functions under the same, including the first respondent in the exercise of its functions under s. 47 of ARIE 2003 in preparing and publishing the Fatwa. The HCJ was of the view that, on the ground of jurisdiction alone, the appellants application for JR must necessarily fail. [8] In relation to the other issues raised, the appellants failed to demonstrate that the Fatwa gazette contravenes fundamental principles laid down in the Federal Constitution and federal laws especially the Communications and Multimedia Act 1998 and the Printing Presses and Publications Act 1984. [9] With regard to the status of the present first appellant, a company that is claimed not to fall within the category of 'persons' who can profess the religion of Islam and is not bound by the Fatwa gazette, all the evidence must be considered. The first appellant, with its synonym 'Sisters in Islam,' clearly demonstrates its relation to Islam. The founder, the administrator, and the members of the first appellants are of the Islamic faith and the activities carried out are in relation to Islamic religion. The first appellant cannot hide behind its status to spread and propagate teachings that would contravene the Islamic religion. The corporate veil of the first appellant can be lifted to reveal the individuals who determine the direction of the same. Therefore, the Fatwa gazette applies to the first appellant. 5 SUMMARY OF THE DECISION OF THE COA BY THE MAJORITY [10] The majority in the COA is of the view that the main dispute by the appellant is on the gazzette of the Fatwa. [11] By virtue of s. 47 of ARIE 2003, the first respondent can issue a fatwa on any issues not finalised or that has raised controvesy pertaining to Hukum Syarak. The assertion by the respondents that a fatwa is issued to give explanation/elaboration and interpretation of Hukum Syarak is not denied by the appellants. In turn, the appellants assertions by way of affidavits were mere denials based on individuals rights under the Federal Constitution. As the assertion by the respondents on the scope and function of a fatwa by the respondents were not denied, it can be deduced that a fatwa is one of the sources of Islamic jurisprudence issued by credible parties based on Hukum Syarak. In other words, a fatwa could only be issued by experts on Hukum Syarak. [12] As the Fatwa is grounded on Hukum Syarak, any dispute on the Fatwa and its contents is under the exclusive jurisdiction of the Syariah Court. This is supported by the Federal Court case of SIS Forum Malaysia v Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339 (“SIS Forum (1)”) that states as follows: [78] As regards the procedure, it necessarily requires compliance with written law and the failure to do so might result in the issuance of public law remedies that can only be issued by the civil superior courts. The contents of the fatwa and their interpretation are a different story and a matter purely for the jurisdiction of the Syariah courts to the extent that it relates to "hukum syarak" or personal law and not matters which objectively might 6 be taken to contradict any written law (Federal or State statutes or even the FC for that matter). [79] Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the civil courts. If the question pertains to the matters of the faith or the validity of the contents of the fatwa tested against the grain of Islamic law, then the appropriate forum for review or compliance is the Syariah courts. [Emphasis Added] [13] The appellants dispute the finding by the respondents that the former are involved in the liberalism and pluralism of the religion. However, this is a matter of Hukum Syarak and therefore the dispute should be within the purview and jurisdiction of the Syariah Courts and not the Civil Courts. [14] A fatwa can be reviewed and need not necessarily be static. The appellants could apply for the Fatwa to be amended and rescinded by the first respondent. Therefore, the JR should not have been filed challenging the same. SUMMARY OF THE DECISION OF THE COA BY THE MINORITY [15] The opening words of item 1 of List II-State List in the Ninth Schedule of the Federal Constitution reads - ‘Islamic law and personal and family law of persons professing the religion of Islam’. This indicates that the ratione materiae jurisdiction of the Syariah Courts was intended only to cover the subject matter of personal laws which would by their nature only apply to natural persons. The first appellant is a company and 7 not a natural person. Further, the word ‘profess’ in its natural and ordinary meaning suggests a declaration of faith which is something an artificial or juridical person is incapable of doing. Therefore, the Syariah Court has no jurisdiction with regard to the dispute regarding the Fatwa. SIS Forum (1) had decided that the respondents had no jurisdiction at all over artificial persons like a limited company or corporation. [16] The Fatwa was also issued in violation of s.51 of ARIE 2003 as the respondents must refer the Fatwa to the National Fatwa Committee because the same affected national interest. It affected national interest as it directed federal agencies and departments to take actions, i.e. Malaysian Communications and Multimedia Commission (“MCMC”) and Ministry of Home Affairs. [17] The Fatwa also contravened s.7 of the Printing Presses and Publications Act 1984 as only the relevant federal Minister is empowered to act under this provision in respect of impugned printing or publication as referred in para 2 of the Fatwa. The respondents as state authorities could not do the same. [18] There was no right of hearing given to the first appellant when it was declared to be holding to liberalism and pluralism that is deviant to Islam as stated in the Fatwa. Every citizen also has a right to free speech and expression under the Federal Constitution. [19] The Fatwa is vague. No explanation on the terms “liberalism and pluralism” but declared the first appellant deviant of Islamic belief without factual basis. 8

[20] It is appropriate to begin by reminding everyone the essential preliminary points that ought to be considered in arriving at the decision regarding the present appeal. The first point to note is that in Malaysia there are the Civil Courts and Islamic Courts or Syariah Courts essentially for the administration of justice. This maybe obvious to many for it to be contentious but it is still possible some are not aware of it or chose to forget it. The two different types of courts are provided for under our Federal Constitution. When the British decided to grant us independence, they knew like many others, it was crucial that these two different courts be recognized, acknowledging the different communities as pivot supporting these courts and for these courts to carry out its functions and duties for these communities. For many years and continuously this is part of the evidence showcasing the respect and deference of the different ethnic communities for each other. [21] The British also knew the country was predominantly Muslims but with others embracing different religious beliefs. They knew too they needed at that time to acknowledge the existence of the Syariah Courts, already operating in some forms before independence. [22] In our Federal Constitution, the Civil Courts and the Syariah Courts are recognised by looking at Article 121(1) and Article 121(1A) that reads as follows: Judicial power of the Federation 9

(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely —

one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(Repealed), and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.”. [23] Article 121(1A) in turn states as follows:

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. [24] In turn, Article 74, read together with Item 1 of List II-State List in the Ninth Schedule of the Federal Constitution provide the jurisdiction of the Syariah Courts and it states as follows:

Subject matter of federal and State laws

Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). 10

Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter. [25] Item 1, reproduced in full, reads:

Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs 11 among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom. [Emphasis Added] [26] Looking at the above, I find that the learned HCJ, could not be faulted nor erroneous in finding the Syariah Court had the jurisdiction in respect of the Fatwa as the same relates to ‘the control of propagating doctrines’ and ‘beliefs among persons professing the religion of Islam’ or ‘the determination of matters of Islamic law and doctrine’. [27] The HC therefore, had found correctly to deny the JR for declaration that the Fatwa issued by the first respodent is invalid. The HC in consequance had rightly ordered no certiorari to quash the said Fatwa. It fact, the HC was absolutely correct to decide on the present case by determining whether the Civil Courts in the first place, have jurisdiction to hear the application for JR. The HC was not in error in determing that only the Syariah Courts would have jurisdiction to hear and decide on a challenge against a fatwa such as in the present case. [28] I agree that the above approach by the learned HCJ should mean this single issue on jurisdiction would be sufficient to dispose of the application for JR at the HC. The Fatwa under the circumstances in short, is a matter for the Muslims alone and its application is for the Muslims community. The Syariah Courts should be the best and appropriate forum instead of the Civil Courts to decide on the validity of a fatwa such as the present one before the HC, COA and this court. [29] The Civil Courts should not encroach on the jurisdiction of the Syariah Courts. Neither the latter should encroach on the jurisdiction of 12 the former. Each should respect the jurisdiction of the other. This country had enjoyed a peacful coexistence among the communities by respecting the two differents courts and it should remain in that manner for many more years in the future. [30] It is also relevant to note a fatwa could not contradict Hukum Syarak. Indeed, in the present case there is no argument disputing this. Hukum Syarak in turn is based on divine revelation based on the Quran, the holy book of the Muslims and the hadis or saying and practice of Prophet Muhammad. Essentially by his actions, words and what he had approved. [31] Thus, when a challenge is made against a fatwa, the Syariah Courts will have jurisdiction and not the Civil Courts, including this court. The appellants should present their objections against the Fatwa at the Syariah Courts. There is no evidence before us to suggest this could not be done. This issue alone is sufficient to determine the present appeal. [32] After all, there is no evidence before this court that Syariah Courts judges are not well-trained or lack the required knowledge to determine the validity of the Fatwa or the extent of its applicability. [33] In this regard, I could see no wrong when the learned HCJ decided to look at the substance of the challenge, which is against the Fatwa. This is how the learned HCJ found and said: [11] Next, in determining the question of jurisdiction of the Syariah Court and the Civil Court, the approach to be taken is the subject matter approach and not the remedy prayed approach as decided by the Federal Court in the case of Azizah bt Shaik Ismail & Anor v Fatimah bte Shaik Ismail & Anor [2004] 2 MLJ 529, where the principle was explained in the following manner; 13 “This appeal has again raised the question of jurisdiction of the Shariah Court and the High Court. If the Syariah Court has jurisdiction over the matter, the High Court does not have jurisdiction over it – art. 121(1A), Federal Constitution. That calls for the determination of the approach that the court should take in determining the jurisdiction of the Syariah Court. This court has very recently decided on this point in Majlis Ugama Islam Pulau Pinang dan Seberang Perai v Shaik Zolfaffily bin Shaik Natar & 2 Ors [2003] 3 CLJ 289. In that case the subject matter was the adjudication and administration of the will of a deceased Muslim, even though the respondents (plaintiffs in the High Court) had prayed for remedies of a declaration that the land in question be surrendered to the estate of Shaik Eusoff bin Shaik Latiff, deceased, a declaration as executors of the deceased’s estate and for an account and, in the alternative, the respondents prayed for damages and an injunction. Haidar Mohd. Noor CJ Malaya (delivering the judgment of the court) surveyed the earlier judgments of this court, the Supreme Court as well as of the High Court and concluded: We respectfully agree with Abdul Hamid Mohamad J that Isa Abdul Rahman cannot be supported. It should be noted that ‘Isa Abdul Rahman’ is the case of Majlis Agama Islam Pulau Pinang lwn, Isa Abdul Rahman [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 (SC). In that case, even though the land and mosque in issue were a ‘wakaf am’, the Supreme Court held that since the real order asked for by the respondents was a perpetual injunction to restrain the appellant or its agents from demolishing the said mosque and to restrain the appellant from taking any preliminary steps to demolish the mosque and erect a commercial building on the site, and since the Syariah Courts did not have jurisdiction to issue an injunction, therefore the High Court had jurisdiction over the suit. This approach is what has become known as ‘the remedy approach’. Secondly, the decision of Abdul Hamid Mohamad J. referred to in the judgment of Haidar Mohd. Noor CJ (Malaya) refers to the case of Abdul Shaik bin Md Ibrahim & Anor v Hussein 14 bin Ibrahim & Ors (1999) 3 CLJ 539 (HC) which adopted the ‘subject matter’ approach. Therefore, this court has put to rest that the subject matter approach should be adopted. In this case, there is no doubt that the subject matter of the case is the custody of the child. That clearly falls with the jurisdiction of the Syariah Court. Even learned counsel for the appellants did not dispute that. His argument was that since the Syariah Court had no jurisdiction to issue the writ of habeas corpus, the civil had the jurisdiction to issue the same in this case. The short answer to that argument is that habeas corpus is the remedy sought and not subject matter of the case. Since the subject matter in question is the custody of the child and since that is clearly within the jurisdiction of the Syariah Court, by virtue of the provisions of art. 121(1A) of the Federal Constitution, the High Court has no jurisdiction over the matter. [12] This approach was followed in the case of Kassim @ Osman Ahmad v Dato Seri Jamil Khir Baharom & 5 Yang Lain [2014] 1 LNS 914, were the Judge states the following: [10] The Federal Court, in Azizah bt Shaik Ismail & Anor v Fatimah bte Shaik Ismail & Anor [2004] 2 MLJ 529 and in Majlis Ugama Islam Pulau Pinang & Seberang Perak v Shaik Zolkeffily bin Shaik Natar & Ors [2003] 3 MLJ 705 had made It clear that when there is a dispute concerning a question of jurisdiction of the Syariah Court and the Civil Court, the approach to be taken is the subject matter approach and not the remedy prayed approach. [Emphasis Added] 15 [34] With respect to the minority judgment of the COA, nothing was said by the same on this binding authority on this subject matter approach in order to determine whether the Syariah Court in the first place, has jurisdiction. The failure to consider this is fatal in the overall decision to allow the appeal by the minority. [35] I shall also refer to what is material as mentioned by the minority judgment of the COA in this case. The following were said: [3] Our focus in our analysis should be on the issues arising for determination in this appeal which may be summarised as follow: 1) Whether the Fatwa exceeds the jurisdictional competence of the Respondents as the 1st Appellant is a company and not a person professing the religion of Islam? 2) Whether the Fatwa is ultra vires sections 47 and 51, Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“Selangor 2003 Enactment”)? 3) Whether the Fatwa violates section 7, Printing, Presses and Publications Act 1984 (“PPPA”) and section 3, Communications and Multimedia Act 1998 (“CMA”)? 4) Whether the Fatwa contravenes Articles 5, 8, 10 and 11, Federal Constitution (“FC”)? 5) Whether the issuance of the Fatwa had breached rules of natural justice? [Emphasis Added] [36] From the above, it is clear that the focus of the minority judge should have been the Fatwa itself. In all five limbs above, the learned judge did 16 not miss the word ‘Fatwa’. Therefore, what should have been done is to ask which court has the jurisdiction when it comes to the issue of a fatwa? It is the Syariah Court. This is because of the subject matter approach based on binding authorities on the minority at the COA as explained earlier and which was correctly referred to by the learned HCJ. I would say that the minority judge with respect did not address this subject matter approach, resulting in the erroneous decision that the Fatwa issued can be challenged in a Civil Court. I consider this a core issue as if there is no jurisdiction on the Civil Courts to adjudicate on a fatwa, then the whole case brought by the appellants against the Fatwa could not be sustained. [37] Although there are other matters challenging the issuance of the Fatwa such as the same should not be applicable to the first appellant as a company and its alleged overreach in directing the MCMC and Ministry of Home Affairs for its enforcement, the substance or the subject matter of the challenge is still the Fatwa as it stands. As pointed out by the HC, based on cogent authorities as shown above, therefore the jurisdiction to determine the result or the outcome of that challenge lies in the Syariah Courts and not the Civil Courts. [38] One issue raised by the appellants before us is that the Fatwa should not stand against the first appellant as it is a company. In essence, it is contended there is also no jurisdiction for the Fatwa to be issued as the same could not bind a company. Further, the appellants argued that as the first appellant is a company, it is not a person professing the religion of Islam and therefore the Fatwa could not apply against it. [39] On this issue, I am compelled to say that this court’s focus should not be blinkered by the assertion that since the first appellant is a 17 company, therefore it could not be subjected to the Fatwa. It is also regressive in approach to ignore the people supporting the company and simply say that since it is a company, it could not be bound by the Fatwa. This should not be done as one ought to have the vision and foresight in asking who are the people behind this company. Its own name, SIS Forum (Malaysia) or “Sisters in Islam” clearly shows its identity. Is that insufficiently clear? I do not think so. [40] Further, in reality a company could not exist without persons manning it. The very least, the second appellant who was the executive director and founder of the first appellant is a Muslim. The learned HC judge also noted that all the directors of the first appellant (the company) are likewise Muslims and the members of the same are also Muslims. It is disturbing that the first appellant could escape and not be subjected by the Fatwa simply by being a company but nonetheless venturing to make assertions and expressing views affecting the precepts and tenants of Islam. The HC was not wrong to find that since its inception the first appellant had raised and issued statements on matters involving the religion of Islam. [41] Another way to view this submission of the appellants is that indirectly it says the company had expressed opinions affecting Islam but because it is a company, it is not persons professing Islam and therefore the Fatwa could not be issued against it. This should not be allowed as those opinions if it is not scrutinised, controlled and regulated by the Fatwa could be seriously flawed to the Muslims understanding of what is acceptable or unacceptable in their own religion. After all, in essence, the Fatwa in this case was only issued after deliberations by respected and recognised Islamic scholars. In this case it is issued by the Fatwa 18 Committee. It should be common knowledge that the Fatwa in this case is not issued by a single scholar. Therefore, lesser entities (companies) or mere mortals (those operating and being members of the companies), should be magnanimous in accepting there are groups of people who are more learned and knowledgeable in the understanding of the religion. [42] Most, rightly would be unconcerned if a company do not venture to express views on Islam. But if it does, then it should be prepared to be subjected by scholars issuing a fatwa such as in this case. In this regard, the learned HCJ, was completely right to find that the objective to control and restrict doctrine or belief amongst Muslims as empowered by Article 11(4) of the Federal Constitution will be ineffective if any statements or views against the teaching of Islam is made under the name of a company like the first appellant. This provision of the Federal Constitution states as follows: State law and in respect of the Federal Territory, federal law may control or restrict the propagation of any religious doctrine or belief among peoples professing the religion of Islam. [43] Accordingly, the learned HCJ was also correct in referring to the Supreme Court case of Mamat Daud & Ors v Government of Malaysia [1987] 1 MLRA 292 where Salleh Abas LP said as follows: [25] I accept that to allow any Muslim or groups of Muslims to adopt divergent practices and entertain differing concepts of Islamic religion may well be dangerous and could lead to disunity among Muslims and, therefore, could affect public order in the States. But the power to legislate in order to control or stop such practices is given to States as could be seen from art 11 Clause (4): 19

State law and in respect of the Federal Territory, federal law may control or restrict the propagation of any religious doctrine or belief among peoples professing the religion of Islam. [26] It is they alone which can say what should be the proper belief, rule and concept of Islamic religion or what should not be its interpretation and what should be the rule in a particular given situation or case. Clause (4) is a power which enables States to pass a law to protect the religion of Islam from being exposed to the influences of the tenets, precepts and practices of other religions or even of certain schools of thought and opinions within Islamic religion itself. [44] A company would still be bound by a fatwa especially in this case depending on the makeup of that company and/or what it did in its work in relation to Islam. Even a company devoid of Muslims manning the same or being members should also still be subjected to a similar fatwa as in this case if it decides to venture propagating views unacceptable to Islamic beliefs. It is highly dangerous if such a company exists for the cohesive understanding and respect we have maintained for decades as citizens for each other. Fortunately, this has not happened as the first appellant is a company run by Muslims and its members being Muslims and with its identity as Muslims by its very name. However, there is still no guarantee that would not happen if we are not careful. But before that happens, it is only wise to be guarded in our approach and say that even a company must be subjected to close scrutiny. It should not be concluded just because a company is not a person professing Islam as a religion such as in this case, that provision of the Federal Constitution should not apply to the same. [45] As a consequence and for the reasons mentioned above, the Fatwa in this case should rightly be applicable against the appellants. 20 [46] Another issue advanced by the appellants is that the Fatwa is ultra vires s. 47 reading it with s. 51 ARIE 2003. S. 47 of ARIE 2003 states as follows: Subject to section 51, the Fatwa Committee shall, on the direction of His Royal Highness the Sultan, and may on its own initiative or on the request of any person by letter addressed to the Mufti, prepare fatwa on any unsettled or controversial question of or relating to Hukum Syarak. [47] S. 51 in turn reads as follows:

Notwithstanding the powers of the Fatwa Committee under section 47, whenever it appears to the Fatwa Committee that a fatwa proposed to be made is related to matters affecting national interest, the Fatwa Committee shall adjourn its discussions on the proposed fatwa and submit the matter to the Majlis.

After deliberating upon the matter, the Majlis may make a recommendation to His Royal Highness the Sultan for his assent to refer the proposed fatwa to the National Fatwa Committee, through the Conference of Rulers.

Without prejudice to the generality of subsection (1), a fatwa shall be deemed to be related to matters affecting national interest if the question is related to any matter, policy, programme or activity which directly affect the interest of the Federal Government, a state Government or any of its ministries, departments or agencies.

If His Royal Highness the Sultan gives his assent under subsection (2), the Majlis shall, before the fatwa is referred to the National Fatwa Committee, inform the state Government of the reference.

When a proposed fatwa has been referred to the National Fatwa Committee, the Committee shall present its advice and 21 recommendations to the Conference of Rulers in accordance with subsection

on the matter.

If the National Fatwa Committee advises or recommends that the proposed fatwa be made, with or without any modification as it may recommend, or advises or recommends another fatwa on the same matter and the Conference of Rulers have agreed with the advice and recommendation of the National Fatwa Committee, the Majlis shall consider the advice and recommendation and thereupon may cause the fatwa according to such advice and recommendation to be published in the Gazette without any amendment or modification, and the provision of section 48, except subsection 48(7), shall apply thereto.

A fatwa published in the Gazette shall be accompanied by a statement that the fatwa is made under this section. [Emphasis Added] [48] Essentially, the argument by the appellants on the above provisions is that the Fatwa must be referred to the National Fatwa Committee and this was never done. Therefore, the Fatwa according to the appellants could not stand. [49] As seen, before s.51 of ARIE 2003 could be operative for the benefit of the appellants as argued, there are several material conditions that must be met as follows:

the subjective determination of the Fatwa Committee (the first respondent) that the present Fatwa proposed is related to matters affecting national interest. This is seen in s.51(1) above. 22

the second respondent may make a recommendation to His Royal Highness the Sultan for his assent to refer the proposed fatwa to the National Fatwa Committee, through the Conference of Rulers. This is seen in s.51(2) above.

His Royal Highness the Sultan must give his assent. This is also seen in s.51(2) above.

a fatwa shall be deemed to be related to matters affecting national interest if the question is related to any matter, policy, programme or activity which directly affect the interest of the Federal Government, a state Government or any of its ministries, departments or agencies. This is seen in s.51(3) above. [50] As for (a) above, in the first place, I could not see any evidence established by the appellants that it appeared to the first respondent that the Fatwa affected national interest. It must be proven national interest had been affected by the subjective determination of the first respondent. There is no evidence from the appellants to prove this against the first respondent. [51] As for (b) above, the key word used is “may”. It is not “shall”. Therefore, the general rule is that it is not mandatory that the second respondent must make recommendation to His Royal Highness the Sultan for his assent. There is again no evidence coming from the appellants regarding this point. 23 [52] As for (c) above, there is also no evidence from the appellants that His Royal Highness had given his assent for the proposed Fatwa to be referred to the National Fatwa Committee. [53] As for (d) above, a fatwa shall be deemed to be related to matters affecting national interest if the question is related to any matter, policy, programme or activity which directly affect the interest of the Federal Government and a state Government. However, there is no evidence proven by the appellants that the Fatwa affected national interest in relation to any matter, policy, programme or activity which directly affect the interest of the Federal Government and a state Government. Neither the Federal Government nor any state governments have made any statements admitting or acknowledging their interest had been so affected, including its ministries, departments or agencies. Without that kind of statements, it should not be presumed that the interest of the Federal Government or a State Government had been affected. [54] In this regard, the accepted general principle is that he who asserts must prove. It means the appellants must prove all that are listed from (a) to (d) above but as there are no evidence to that effect, s. 51 ARIE 2003 as shown above could not be said to be contravened. [55] Another contention by the appellants is on the case SIS Forum (1) which decided JR is not merely procedural but a substantive part of judicial power. It is inherent and which forms the very core function of an independent judiciary. It is the exclusive judicial power of the Civil Courts. Essentially because of this decision of the Federal Court, the Syariah Courts do not have the power in respect of hearing or granting remedies when it comes to JR application. That affects s.66 of ARIE 2003 in that 24 the same has been struck down by SIS Forum (1) because essentially this provision wrongly allows for JR to be heard by the Syariah Courts. Hence, the argument of the appellants is that the learned HCJ erred in finding s.66 of ARIE 2003 allows for JR to be applied against the Fatwa. [56] Having in mind that I have decided the Syariah Courts do have the jurisdiction in respect of the core dispute on the Fatwa and not the Civil Courts, this issue on s.66 of ARIE 2003 becomes irrelevant. First, there must be a determination based on the subject matter approach to see whether the Syariah Courts have the jurisdiction in this case. Once it is decided that the Syariah Courts do have the jurisdiction, the dispute must go before the same for a decision. It matters not then that s.66 of ARIE 2003 granting JR power to the Syariah Courts is already struck down by SIS Forum (1). [57] On the minority’s view at the COA that there was no right of hearing given to the first appellant when it was declared to be holding to liberalism and pluralism that is deviant to Islam, I noticed that the minority did not allude or refer at all to the finding of the HC as follows: Aside from the above meetings, on 12.1.2012, a dialogue was held between the panel of Fatwa Committee of Selangor headed by the Mufti of Selangor and SIS Forum (Malaysia) represented by 8 of its members including the 2nd applicant. The matters discussed includes the issue of liberalism and pluralism of religion. [58] The above proves that there were hearings held with the appellants before the Fatwa was issued. This also would suggest it is more possible the appellants were heard and their explanations were discussed before a determination is made that they were engaging on liberalism and 25 pluralism against Islam. It also shows it is more likely the appellants could not have been seriously accused before the scholars heard them. [59] The above would indicate that “liberalism and pluralism of religion” had been discussed including through the dialogue. To say the Fatwa is vague and no explanation on the terms “liberalism and pluralism” but yet the first appellant is declared deviant of Islamic belief as narrated by the minority judge at the COA, is with respect inconsistent with what were the facts as found by the learned HCJ as seen above. [60] I should also point out even when the Fatwa could not stand according to the appellants because it needs the enforcement of MCMC and the Ministry of Home Affairs, this issue still had wrongly evaded the case law authorities from the Federal Court that decided the courts should look at the subject matter approach or substantive challenge to determine whether the Syariah Courts have the jurisdiction to hear and decide on the dispute. Thus, whether a federal department or agency is referred in the Fatwa issued by a state for its execution, that does not really matter as the dispute on the Fatwa in the first place is within the jurisdiction of the Syariah Courts based on the subject matter approach. The Fatwa should be argued in all aspects before the Syariah Courts. [61] With regard to the arguments by the appellants regarding the application of Communications and Multimedia Act 1998 and the Printing Presses and Publications Act 1984 with reference to para 2 of the Fatwa, these contentions should come secondary to the arguments on the Fatwa itself – paras 1 and 4. The core dispute about the Fatwa is in the jurisdiction of the Syariah Courts. Therefore, the applicability or alleged infringement of the two written laws should also go before the Syariah 26 Courts as the subject matter approach means it is the Syariah Courts that have jurisdiction on the dispute. CONCLUSION [62] The question to ask is what is the dispute in this case? The answer is the dispute is on the Fatwa. That is the essence of the dispute. Of course, there are other issues. However, these issues could not be more important than the dispute on the Fatwa. As the Fatwa is the core dispute, I am guided by the principle that I should look at the subject matter of the case. [63] The subject matter approach should result in the dispute on the Fatwa being considered within the jurisdiction of Syariah Courts and not the Civil Courts. This approach formulated by the highest court in our country is still good law. Once it is within the jurisdiction of the Syariah Courts, that courts alone shall determine the validity of the Fatwa issued. [64] It is also high time that a company, although strictly speaking is not a “person”, must also be subjected to a fatwa, especially based on the facts of this case. [65] I am also of the view that all issues, including the ancillary issues, have been addressed. Therefore, I am not inclined and I see no necessity to answer the questions posed in respect of the appeal. Based on all the reasons explained, I have no hesitation in dismissing the present appeal. 27 [66] I shall end this by saying that I find it strange if a Syariah Court has no jurisdiction to rule on a dispute about a fatwa. Dated: 19 June 2025 - Sgd - (ABU BAKAR BIN JAIS) Judge Federal Court of Malaysia Counsel: For the Appellant: Dato’ Malik Imtiaz Sarwar (with him Yvonne Lim, Surendra Ananth and Sabrina Ameen) [Messrs. Fahri, Azzat & Co.] For the first respondent: Zainul Rijal bin Abu Bakar (with him Mohamed Hanaiff bin Khatri, Aidil bin Khalid, Danial Farhan bin Zainul Rijal, Ali Huzaifah bin Shariff Ahmed, Muhammad Hariz bin Md Yusoff and Nur Fatin Syakinah binti Kamarudin) [Messrs. Chambers of Zainul Rijal] For the second respondent: Yusfarizal bin Yusoff (with him Majdah binti Muda) [Messrs. Muda] 28 For the third respondent: Dato’ Salim bin Soib @ Hamid, SFC (with him Husna binti Abdul Halim) [Selangor State Legal Advisor’s Office]