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Case Update: Significant Federal Court decision placing clear emphasis on the demarcation of jurisdiction between the Civil and Shariah courts

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28 February 2022

CONSTITUTIONAL LAW
Judicial Review – Fatwa – Selangor Islamic Enactment – Adminstration of the Religion of Islam (State of Selangor) Enactment 2003 (ARIE 2003), s. 66A – Federal Constitution, A. 121

SIS Forum (Malaysia) v Kerajaan Negeri Selangor
BKA-1-01/2021(W) | Federal Court
- see the grounds of judgment here

Facts SIS Forum (Malaysia) (the ‘Petitioner’) was a corporation who claimed to be aggrieved by a Fatwa. The Petitioner filed an application for judicial review against the Fatwa which was dismissed on the grounds that the High Court Judge held that the civil courts did not have the jurisdiction to determine the validity of a Fatwa. The Petitioner then filed an application in the Federal Court seeking a declaration that s. 66A of the ARIE 2003[1] was invalid on the ground that it makes provision with respect to a matter with respect to which the Legislature of the State of Selangor has no power to make, and as such, that said provision is unconstitutional, null and void. Hence, this petition.

Issue Whether the Selangor State Legislative Assembly was empowered to enact s. 66A of the ARIE 2003?

Held In a unanimous decision, the Federal Court held that s. 66A of the ARIE 2003 was unconstitutional and void as it was a provision that the Selangor State Legislative Assembly did not have power to make. The state assembly did not have the power to pass any provision to confer judicial review powers to the Shariah High Court in the state. Chief Justice of Malaysia, Tengku Maimun Binti Tuan Mat held that judicial review is not merely procedural but a substantive and immutable component of judicial power. This power is inherent and defines the very core function of an independent Judiciary and it is exclusively a judicial power of the Civil Superior Courts as upheld in previous decisions such as the cases of Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza. In essence, 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 to decide upon. However, 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 is the shariah courts.

Zul Rafique & Partners
{28 February 2022}
[1] S. 66(A) of the ARIE 2003 states that the Selangor 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 a judicial review on the decision made by the council or committees carrying out the functions under this enactment.

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