Syariah Courts have exclusive jurisdiction over disputes regarding the validity of a Fatwa, with Civil Courts lacking authority to adjudicate on matters of Islamic law.

[1]This is an appeal against the decision of the majority at the Court of Appeal (“COA”). The majority had affirmed the decision of the High Court (“HC”). The grounds of judgment written by the learned HC judge, Nordin Hassan J (now FCJ) is reported in [2020] 3 AMR 154. The written grounds of the COA, both majority and minority can be seen in [2023] 4 CLJ 449.

[2]At the HC, the appellants filed an application for judicial review (“JR”) for a declaration essentially that the Fatwa issued by the first respondent, which is the State Fatwa Committee is invalid and pray for an order of certiorari to quash the said Fatwa. The HC dismissed the application for JR. In turn, the COA by a majority dismissed the appeal and affirmed the decision of the HC.

[3]The Fatwa reads as follows:

FATWA PEMIKIRAN LIBERALISME DAN PLURALISME AGAMA

1.SIS FORUM (Malaysia) dan mana-mana individu, pertubuhan, atau institusi yang berpegang kepada fahaman liberalisme dan pluralisme agama adalah sesat dan menyeleweng daripada ajaran Islam.

2.Mana-mana bahan terbitan yang berunsur pemikiran-pemikiran fahaman liberalisme dan pluralisme agama hendaklah diharamkan dan boleh dirampas.

3.Suruhanjaya Komunikasi dan Multimedia (SKMM) hendaklah menyekat laman-laman social yang bertentangan dengan ajaran Islam dan Hukum Syarak.

4.Mana-mana individu yang berpegang kepada fahaman liberalisme dan pluralisme agama hendaklah bertaubat dan kembali ke jalan Islam.

[4]The Fatwa was gazetted on 31.7.2014. The Fatwa gazette stated that the Fatwa was prepared by the Fatwa Committee of Selangor pursuant to a perintah (“directive”) from Sultan of Selangor.

SUMMARY OF THE DECISION OF THE HC

[5]Article 121(1A) of the Federal Constitution is clear that the Civil Courts have no jurisdiction over matters within the jurisdiction of the Syariah Courts’ jurisdiction. Matters within the jurisdiction of a Syariah Court are provided for under Article 74, read together with Item 1 of List II-State List in the Ninth Schedule of the .

[6]The question is whether the “Fatwa”‘ falls within the List II-State List in the Ninth Schedule of the Federal Constitution , in particular under the category of ‘the control of propagating doctrines’ and ‘beliefs among persons professing the religion of Islam’ or ‘the determination of matters of Islamic law’. Upon perusal of the Mufti’s affidavit in reply, the learned HC judge (“HCJ”) was of the opinion that the Fatwa gazette pertains to matters of Islamic law which is aimed at controlling or restricting the ideologies of liberalism and pluralism among followers of the Islamic faith. Therefore, the preparation and the publication of the Fatwa gazette are in accordance with the powers within Article 11(4) of the and s. 47 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“ARIE 2003”). Moreover, all procedures stipulated under s. 48 of ARIE 2003 for the preparation and publication of the Fatwa gazette have been complied with by the first respondent.

[7]In addition, s. 66 of ARIE 2003 provides a pathway for any person to apply for JR of the decision of any committee exercising its functions under the same, including the first respondent in the exercise of its functions under s. 47 of ARIE 2003 in preparing and publishing the Fatwa. The HCJ was of the view that, on the ground of jurisdiction alone, the appellants application for JR must necessarily fail.

[8]In relation to the other issues raised, the appellants failed to demonstrate that the Fatwa gazette contravenes fundamental princip