Federal Court declares Selangor’s Islamic enactment unconstitutional

The Federal Court today declared that the Selangor state legislative assembly has no authority to make an enactment which confers on the state shariah court the power to hear a judicial review relating to the decision by the state religious authorities.

A nine-member panel led by Chief Justice Tengku Maimun Tuan Mat in a unanimous decision said the court found Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 unconstitutional and void as it was a provision which the Selangor state legislative assembly had no power to make.

“Therefore, the petition by SIS Forum (Malaysia) is allowed with no order as to costs,” said Tengku Maimun.

The other judges 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 Sept 22 last year, the apex court allowed an application by SIS to obtain leave to pursue its legal challenge in the Federal Court through Article 4(4) of the Federal Constitution.

Tengku Maimun said she wished to clarify at the outset of the judgment that the court was not concerned with the procedural or substantive validity of the fatwa nor was it asked to consider whether the courts were in the first place generally disempowered to undertake such evaluation under Clause (1A) of Article 121 of the Federal Constitution.

She said the petition concerned only the question of whether the Selangor state legislative assembly was empowered to enact Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003.

“I therefore make no comment or ruling on the substantive or procedural validity of the fatwa,” she said.

Tengku Maimun further said the court had consecutively and consistently held in its decisions in the Semenyih Jaya case and others, including that of Indira Gandhi, that the judicial power of the federation reposed solely in the civil courts.

She said the counsel for the petitioner (SIS Forum) had argued that a judicial review was a unique and exclusive aspect of judicial power vested in the civil superior courts.

“The learned counsel also argued that the shariah courts, as a matter of constitutional policy, are incapable of exercising judicial power for the reason that they do not share the same constitutional guarantees of judicial independence as the civil superior courts.

“That judicial review is a feature unique to the civil courts is confirmed by this court where it was held in the Semenyih Jaya and Indira Gandhi cases,” she said.

Tengku Maimun further said it was not apparent on the record that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 was intended to cover matters of Islamic law only and not matters within the realm of public law and/or public law powers.

“When the provision is cast in general terms, and without limitations, it is not permissible for the court either to mend or remake the statute. Its only duty is to strike it down and leave it to the Selangor state assembly, if it so desires, to re-enact it consonant with Item 1 of the State List, Ninth Schedule of the Federal Constitution.

“In the circumstances of the present petition, the doctrine of ‘reading down’ cannot blow life into the section,” she added.

Tengku Maimun said it would suffice to state that the interpretation of the phrase “persons professing the religion of Islam” and reading the purpose of Item 1 suggest that Item 1 could not have contemplated, and was never intended, to confer judicial review powers on the shariah courts simply by defining the intervener as a “Muslim”.

“Judicial review, by its very nature, involves supervising administrative bodies by reference to public law powers vested in them. There is no regard to religion.

“The attempt to confer jurisdiction of judicial review on the shariah courts by purporting to define the ‘majlis’ as a ‘Muslim’ is therefore beside the point notwithstanding Section 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, and Section 66A of the same, therefore stands unconstitutional,” she said when delivering the decision at the virtual proceedings today.

SIS Forum had sought leave to commence the challenge, seeking to declare as invalid Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 which 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 council or committees carrying out the functions under the Enactment.

SIS Forum filed the application in the Federal Court on Jan 21, 2020, naming the Selangor government as the respondent after the High Court in Kuala Lumpur on Aug 27, 2020 dismissed its judicial review application against a Selangor religious authority’s fatwa labelling the group as deviant in 2019.

Then High Court judge Nordin Hassan, now a Court of Appeal judge, held that the civil court had 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.

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

Lawyer Malik Imtiaz Sarwar appeared for SIS Forum, while Selangor state legal adviser Salim Soib @ Hamid acted for the Selangor government and lawyers Zainur Zakaria and Mohamed Haniff Khatri Abdulla represented the Selangor Islamic Religious Council, an intervener in the case.