The jurisdiction of civil courts does not extend to matters under Syariah courts, particularly regarding fatwas, which bind only natural persons.

Tengku Maimun Tuan Mat CJ (Majority):

Preliminaries

[1] This judgment is delivered by the remaining judges on this panel pursuant to s 78 of the Courts of Judicature Act 1964, as our learned brother, Abdul Karim Abdul Jalil FCJ, has since mandatorily retired from the Bench.

[2] My learned brother, Abang Iskandar Abang Hashim PCA and my learned sister Nallini Pathmanathan FCJ, have seen this judgment in draft and have agreed with it.

[3] In all civilised democracies with independent Judiciaries, judicial review applications are routine against the Executive branch of Government for decisions and omissions they make in the exercise or non-exercise of their discretion. In most cases, the subject matter of the exercise of discretion is not the main issue in the plaint; rather, it is the manner in which the decision was made and/or concerns a review of the legal basis upon which such power was exercised or not exercised.

[4] It will be appreciated that this appeal is no different. While it concerns a certain fatwa (religious edict), the case has nothing to do with the substantive beliefs held in the religion of Islam nor does it have anything to do with the administration of the substantive aspects of the religion of Islam.

[5] The 3rd respondent is the Government of the State of Selangor and a member of the Executive branch. The 1st and 2nd respondents are organs of the 3rd respondent and are also members of the Executive branch.

[6] They, like all other Executive organs, are conferred powers by the Federal Constitution (' FC ') and laws passed by the State Legislative Assembly ('SLA') of Selangor. Their exercise or lack of exercise of those powers is therefore subject to judicial review. The fact that they deal with matters pertaining to Islamic faith, dogma, and doctrine — is beside the point, and these matters are, in any event, not within our purview.

[7] As such, we state here that this case has nothing to do with the substance of the religion of Islam, its mandates, dictates or its doctrine and matters relating to its belief. The present challenge only concerns the review of the respondents' exercise of certain powers under the law, which is distinct from the substance and contents of their decisions.

Article 121(1) And 121(1A) Of The Federal Constitution

[8] We find it necessary to begin this judgment by stating that there has been a long-term confusion over the operation of art 121(1A) of the FC , which in recent times ought to have become clear and quelled.

[9] It is impossible to comprehend art 121(1A) in isolation as it must be read together with art 121(1) which states:

"Judicial power of the Federation

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

(a) 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

(b) 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;

(c) (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.".

[10] The confusion with art 121(1A) is made worse when we consider that judicial power, which forms the subject of art 121(1), has itself been the subject of considerable debate in the past years. Whatever these debates once were, they have been irrevocably settled by a large number of decisions emanating from the Federal Court, namely and among others:

(i) Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 4 MLRA 554; [2017] 3 MLJ 561; [2017] 5 CLJ 526 ('Semenyih Jaya');

(ii) Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 2 MLRA 1; [2018] 1