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2024 MarsdenLR 2927
HIGH COURT MALAYA SHAH ALAM
SHAHNAZ SULAIMAN, J
MOHD KAMILZUHAIRI ABD AZIZ & ORS – Appellant
Versus
PENDAKWA SYARIE SELANGOR & ORS – Respondent
[Judicial Review Application No: BA-25-36-06/2023]
The application for judicial review was dismissed as it was deemed non-justiciable, filed out of time, and the impugned charges fell within the exclusive jurisdiction of the Syariah Courts.
Headnote:(A) Rules of Court 2012 - Order 53 - Judicial Review - Application for leave to commence judicial review dismissed due to failure to meet criteria for leave, including timeliness and justiciability of the impugned charges under art 121(1A) of the Federal Constitution. (Paras 1, 21, 68)
(B) Judicial Review - The court emphasized that the subject matter of the impugned charges falls within the exclusive jurisdiction of the Syariah Courts, rendering the application non-justiciable. (Paras 30, 46)
Facts of the case:
The applicants sought judicial review against charges related to the practice of Syiah Islam, which were based on a fatwa prohibiting such practices in Selangor. (Paras 4-12)
Findings of Court:
The court found that the application was filed out of time and that the impugned charges were not amenable to judicial review. The applicants failed to name relevant parties. (Paras 21, 30, 64)
Issues: The main issues were the timeliness of the application, the justiciability of the impugned fatwa, and the failure to name relevant parties. (Paras 20, 52, 64)
Ratio Decidendi: The court ruled that the impugned charges are within the exclusive jurisdiction of the Syariah Courts, and therefore, the civil courts lack the authority to intervene. (Paras 46, 68)
Result: Application dismissed with no order as to costs.
JUDGMENT
Introduction
[1] The applicants filed an application for leave to commence judicial review pursuant to O 53 r 3(1) of the Rules of 2012 (" ROC 2012") on 21 June 2023.
[2] The Honourable Attorney General objected to this application for leave.
[3] This Court dismissed this application by the applicants for leave to commence judicial review proceedings. This is the grounds of this Court in dismissing the applicants' application for leave to commence judicial review proceedings.
Reliefs Sought
[4] The applicants sought the following reliefs in encl 1 (which was subsequently amended as per encl 31) as reproduced below:
"(1) If necessary, an extension of time be granted to the applicants to file this application for judicial review and the application for leave to file this judicial review;
(2) That the applicants be granted leave by this Honourable Court to apply for judicial review pursuant to O 53 of the Rules of 2012 for the following relief:
(A) A declaration that the religion of Islam of Syiah sect may be practiced in peace and harmony in any part of Malaysia;
(B) A declaration that every person has the right to profess and practise the religion of Islam of Syiah sect pursuant to art 11(1) of the Federal Constitution ;
(C) A declaration that sub-items i) to x) of item 2 of the Fatwa Sighah in relation to the Syiah's teaching in the State of Selangor ("Fatwa Sighah Berkaitan Ajaran Syiah Di Negeri Selangor') dated 7 October 2013 and published as Sel. P.U. 146 in the Government of Selangor Gazette dated 17 October 2013 is void;
(D) A writ of certiorari be issued against the first respondent and/or the second respondent for the following charges by the first respondent be removed to this Honorable Court and be quashed immediately:
(i) the charge against the first applicant read on 23 March 2023 in the Selangor Syariah Subordinate Court at Gombak Barat for committing on 6 September 2019 the offence of attempting to act in contempt religious authority by defying the direction of the mufti expressed in item 2(vi) of the Fatwa Sighah Berkaitan Ajaran Syiah Di Negeri Selangor and thereby committing an offence under s 52 of the Syariah Criminal Offences (Selangor) Enactment 1995 read with s 12(c) of the Syariah Criminal Offences (Selangor) Enactment 1995 ;
(ii) The charges against the second applicant and the third applicant each read on 23 March 2023 in the Selangor Syariah Subordinate Court at Gombak Barat each for committing on 6 September 2019 the offence of abetting the first applicant in attempting to act in contempt religious authority by defying the direction of the mufti expressed in item 2(vi) of the Fatwa Sighah Berkaitan Ajaran Syiah Di Negeri Selangor by participating together with the first applicant in the same event and thereby committing an offence under s 49 of the Syariah Criminal Offences (Selangor) Enactment 1995 ;
and/or any amended charges arising from the above charges.
(E) A writ prohibition be issued against the first respondent and/or second respondent prohibiting the first respondent and/or second respondent from commencing or continuing with any proceeding including preferring any charge in the Syariah Court based on the Fatwa Sighah Berkaitan Ajaran Syiah Di Negeri Selangor;
(F) Any other additional directions, orders or prerogative writs as a remedy to the applicants that the Honourable Court might hereafter finds fit and/or suitable to the circumstances of this case;
(G) The cost of this application; and
(H) Such further or other relief as this Honourable Court deems fit.
Factual Background
[5] The facts of this case are garnered from documents filed before this Court .
[6] On 17 October 2013, the Fatwa Sighah Berkaitan Ajaran Syiah di Negeri Selangor (Sel. P.U.146.) ("the impugned fatwa") was gazetted to come into effect in the State of Selangor. The impugned fatwa could be summarised into two parts. The first part stated that the understanding and teachings of the Syiah sect i
