S’gor assembly lacks authority to give judicial review powers to Sharia court, says Federal Court

PUTRAJAYA: The Federal Court said on Monday (February 21) that the Selangor legislature does not have the power to pass a law giving the state Sharia court the power to review fatwas issued by authorities state nuns.

A nine-member panel headed by Chief Justice Tun Tengku Maimun Tuan Mat (Photo)in a unanimous decision, said the court found that Section 66A of the Administration of the Religion of Islam (Selangor State) Act 2003 was unconstitutional and void, as it is a provision which the Selangor legislative assembly has no power to make.

“Therefore, the SIS Forum (Malaysia) motion is allowed without an order as to costs,” Judge Tengku Maimun said.

Other judges in the seat were Chief Justice of the Court of Appeal Tan Sri Rohana Yusuf, Chief Justice of Malaya Tan Sri Azahar Mohamed, Chief Justice of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim and Federal Court Justices Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat, Puan Sri Zaleha Yusof, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

On September 22 last year, the Apex Court granted an application by the SIS for permission to pursue its legal challenge in Federal Court under Section 4(4) of the Federal Constitution.

Tengku Maimun said she should make it clear at the beginning of this 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 are, in the first place, generally relieved of responsibility for undertaking such an assessment in paragraph (1A) of Article 121 of the Federal Constitution.

She said that this petition relates only to the question whether the Selangor Legislative Assembly has been empowered to pass Section 66A of the Administration of the Religion of Islam (Selangor State) Promulgation 2003.

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

Tengku Maimun further said that the court has consecutively and consistently held in its decisions in the Semenyih Jaya case and another case including Indira Gandhi that the judicial power of the federation remains solely in the hands of the courts. civilians.

She said the scientist applicant’s lawyer (SIS Forum) argued that a judicial review is a unique and exclusive appearance of devolved judiciary civil superior courts.

“The learned lawyer also argued that Sharia courts, under constitutional policy, are unable to exercise judicial power on the grounds that they do not share the same constitutional guarantees of judicial independence as superior courts. civil.

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

Tengku Maimun further stated that it did not appear from the record that Section 66A of the Administration of the Religion of Islam (Selangor State) Act 2003 was intended to cover only matters of law. Islamic law and not matters falling within the domain of public law and/or powers of public law.

“Where the provision is framed in general terms and without limitations, it is not lawful for the court to alter or remake the law. Its only duty is to strike it down and leave it to the Assembly of the State of Selangor, if it wishes, to re-enact it pursuant to Item 1 of the List of States, Ninth Schedule to the Federal Constitution.

“In the circumstances of this petition, the ‘reading down’ doctrine cannot bring the section to life,” she added.

Tengku Maimun said that it is enough to state that the interpretation of the phrase “persons professing the religion of Islam” and the reading of the subject matter of point 1 suggests that point 1 could not have considered, and was never intended to confer powers of judicial review on the Sharia courts. simply by defining the speaker as “Muslim”.

“Judicial control, by its very nature, is to control administrative bodies by reference to the public law powers vested in them. There is no regard for religion.

“The attempt to confer judicial review jurisdiction on the Sharia courts by purporting to define the ‘Majlis’ as a ‘Muslim’ is therefore irrelevant notwithstanding Section 2 of the Religion Administration Act 2003 of the Islam (State of Selangor), and Section 66A thereof, is therefore unconstitutional,” she said when handing over the decision in virtual proceedings on Monday.

The SIS Forum has sought leave to bring the challenge, seeking to declare invalid Section 66A of the Administration of the Religion of Islam (Selangor State) Act 2003 which provides that the High Court of Shariah may, in the interests of justice, upon application by any person, have the power to grant permission and hear the application for judicial review of the decision taken by the board or committees performing the duties provided for by the legislative text.

The SIS Forum filed the claim in the Federal Court on January 21, 2020, naming the Selangor government as a defendant after the Kuala Lumpur High Court on August 27, 2020 dismissed its application for judicial review against the fatwa of a religious authority in Selangor calling the group deviant. in 2019.

The then High Court judge, Datuk Nordin Hassan (now a judge of the Court of Appeal), held that the civil court had no jurisdiction over Sharia law, adding that the issue of the fatwa was related to Sharia law and fell under the exclusive jurisdiction of the Sharia court.

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

Lawyer Datuk Malik Imtiaz Sarwar appeared for the SIS Forum, while Selangor State Legal Adviser Datuk Salim Soib@Hamid acted for the Government of Selangor and Lawyers Zainur Zakaria and Mohamed Haniff Khatri Abdulla represented the Islamic Religious Council of Selangor (MAIS), an intervenor in the case. – Bernama