Thursday, March 2, 2017

SIS' challenge against 'deviant' fatwa sent back to High Court

Geraldine Tong     Published     Updated
The Court of Appeal have ruled that the suit by Sisters in Islam (SIS) to seek a judicial review against the fatwa (edict) which declared that they are a deviant group will be heard by the High Court before a different judge.

"The Court of Appeal... has now sent the matter back to the High Court to be heard on the merits before a different judge," said SIS' lawyer Surendra Ananth to reporters after the decision was delivered in Putrajaya today.

Previously, the High Court had dismissed the legal challenge by SIS against the fatwa, ruling that the matter falls under the jurisdiction of the Syariah Court, and SIS had appealed the dismissal to the Court of Appeal.

Surendra argued today that the case concerns the constitutionality of the fatwa and issues related to the constitution falls under the jurisdiction of the civil courts.

"We are not saying the fatwa is against Islamic principles. That is for the Syariah courts to decide.

"What we are saying is that it is against the constitution," Surendra said.

SIS first filed a judicial review application on Oct 31, 2014 to challenge Selangor Islamic Affairs Council's (Mais) fatwa declaring the organisation as deviating from Islamic teachings on grounds that it adopts liberal ideologies.

Question of jurisdiction

They were granted leave by then High Court judge Asmabi Mohamad to proceed with the case in December of the same year, but Asmabi was later elevated to the Court of Appeal.

High Court judge Hanipah Farikullah then took over the case and she subsequently dismissed the case over jurisdiction issues.

Surendra explained that during the hearing before Asmabi where she granted the leave, the issue of jurisdiction was already raised.

However, when Hanipah took over the case, the jurisdiction issue was raised again as a preliminary objection, where she allowed the objection and dismissed the application without going into the merits.

Surendra argued that since the issue of jurisdiction had been decided by the first judge, it cannot be reopened later on the same grounds.

"We disagree with the High Court judge in upholding the preliminary objections on the issue of jurisdiction," said the three-judge panel led by Justice Tengku Maimun Tuan Mat in the Court of Appeal today.

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