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The Malay Mail Online: Only Shariah courts can hear SIS’s challenge against fatwa, says civil court judge (24 June 2016)
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By Ida Lim

KUALA LUMPUR, June 24 — The High Court here today dismissed Sisters in Islam’s (SIS) legal challenge against a fatwa branding them as deviant, ruling that only the Shariah courts have the powers to deal with the religious edict.

High Court Judge Datuk Hanipah Farikullah said the subject matter of SIS’s case is a fatwa or the determination of Islamic law.

“I am of the view that this court does not have jurisdiction to grant relief sought by plaintiffs in this judicial review.

“To my mind, that is the jurisdiction of the Shariah court,” she said.

Among other things, Hanipah said that the civil courts would not have jurisdiction over the matter just because a plaintiff cannot be heard in the Shariah courts.

Hanipah did not go into the merits of the case.

The judge did not order SIS and the two other applicants to pay costs as this case is of public interest.

On October 31, 2014, SIS filed for a judicial review of a gazetted fatwa in Selangor that declared the group as “deviants” in Islam due to their alleged religious liberalism and pluralism.

The fatwa also deemed any publications with elements of liberalism and religious pluralism as “haram”, or forbidden to Muslims, and can be seized by religious authorities.

It also sought for local Internet regulator the Malaysian Communications and Multimedia Commission (MCMC) to monitor and block social media websites with content that was against Islam.

SIS Forum (Malaysia), the group’s co-founder Zainah Mahfoozah Anwar and Datuk Zaid Ibrahim had named the Selangor Fatwa Committee, the Selangor Islamic Religious Council (MAIS) and the state government as respondents in their application.

SIS Forum (Malaysia) is the company running SIS and its lawyer Malik Imtiaz Sarwar had previously argued in court that it is a secular entity that falls outside of the Islamic judicial system.

On December 10, 2014, then Kuala Lumpur High Court Judge Datuk Asmabi Mohamad granted SIS leave for judicial review.

SIS executive director Rozana Isa said the Muslim advocacy group will appeal against the High Court’s decision today.

“We feel it’s important for us to appeal against this decision. It has to do with the very core of our existence, our fundamental rights to exist, the fundamental rights for our raison d’etre, basically to serve women, to uphold the rights of Muslim women,” she told reporters immediately after the decision.

Zaid, who was also present, said today was a “historic day” as the decision meant that Shariah courts would have jurisdiction to hear judicial reviews — which is typically before the civil courts.

“This is startling. I feel sorry for SIS,” he said.

Malik Imtiaz told reporters that there was a need to clarify matters relating to fatwa, which he said has the force of law in Malaysia as subsidiary legislation.

“I think it’s important to understand that there was no challenge to the power to make fatwa in general — I think everyone respects that.

“Everyone respects the fact that the Fatwa Committees can make fatwas, so the question is what is the scope, the permissible scope and extent of the fatwa,” he said, later noting that the fatwa against SIS was arguably not made according to procedure.

Malik Imtiaz pointed out that the MCMC is a federal agency that could not be said to be a person professing Islam that falls under the Shariah courts’ jurisdiction, while the SIS as a company is also not within the purview of the Shariah courts.

“So the judge did say that there may be lacuna or holes in between where one system or another cannot afford remedy and judge said that maybe it’s something for legislators to look at, but we believe that is something the Court of Appeal should consider more fully.”

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