Judicial review is exclusively a function of civil superior courts, and any legislative attempt to confer such powers to Syariah courts is unconstitutional.

Tengku Maimun Tuan Mat CJ:

Introduction

[1] This petition arose out of the decision of the High Court in an application for judicial review No WA-25-204-10-2014 ('JR No 204') wherein the present petitioner (the applicant there) sought to challenge the validity of a fatwa dated 17 July 2014 (ref no MAIS/SU/BUU/01-2/002/2013-3(4) and gazetted on 31 July 2014) ('Fatwa'). For completeness, the Fatwa is reproduced below:

"FATWA PEMIKIRAN LIBERALISM DAN PLURALISM AGAMA.

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

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

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

4. Mana-mana individu yang berpegang kepada fahaman liberalism dan pluralism agama hendaklah bertaubat dan kembali ke jalan Islam."

[2] In the JR No 204 application, the petitioner sought, among others, for the following declarations: (i) to the extent the Fatwa implicitly provides for offences in relation to newspaper, publications, publishers, printing and printing presses, it is contrary to s 7 of the Printing Presses and Publications Act 1984 ; (ii) to the extent it directs Malaysian Communication and Multimedia Commission ('MCMC') to block social website, is contrary to s 3(3) of the MCMC Act 1998 ; (iii) a declaration that the Fatwa is in excess of arts 10, 11, 74 and List 1 and List 2 of the Ninth Schedule of the Federal Constitution ; and (iv) a declaration that the petitioner being a company limited by guarantee incorporated under the Companies Act 1965 or any other party not able to profess the religion of Islam, cannot be subjected to the said Fatwa.

[3] The High Court held, in part that is relevant to this petition, that in light of s 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 ('ARIE 2003') read with clause (1A) of art 121 of the Federal Constitution (' FC '), the High Court was dispossessed of any jurisdiction to consider the validity of the Fatwa and that the question should instead be posed and determined in the Syariah High Court in accordance with s 66A of the ARIE 2003.

[4] By this petition, the petitioner sought for the following declaration:

"A Declaration that s 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is 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."

[5] I must clarify at the outset of this judgment that this Court is not concerned with the procedural or substantive validity of the Fatwa nor is it asked to consider whether the Courts are in the first place generally disempowered to undertake such evaluation under cl (1A) of art 121 of the FC . This petition concerns only the question of whether the Selangor State Legislative Assembly ('SSLA') was empowered to enact s 66A of the ARIE 2003. I therefore make no comment or ruling on the substantive or procedural validity of the Fatwa.

Background Facts

[6] The salient facts of this petition narrated below are as gathered from the cause papers and the parties' respective submissions with some modifications.

[7] The petitioner, SIS Forum (Malaysia), is a corporation who claimed to be aggrieved by the Fatwa. They accordingly filed an application for judicial review in JR No 204 which was dismissed. As adverted to above, the only reason for the dismissal that is somewhat pertinent to the petition is that the learned High Court Judge held that in light of cl (1A) of art 121 of the FC and s 66A of the ARIE 2003, the High Court had no jurisdiction to determine the validity