On September 19th, 2016, Malaysia’s Federal High Court dismissed an application for judicial review filed by the feminist organization Sisters in Islam (SIS). The group had filed a petition for judicial review under the Federal (civil) High Court to challenge the validity of a fatwā issued by the Fatwā Committee of the State of Selangor in 2014, which labeled the group as “deviating from the teachings of Islam” for espousing “liberalism” and “religious pluralism.”[1]
In their petition for review of the state-issued fatwā in the Federal High Court rather than the Syariah (Ar. sharīʿa) High Court, the organization made a controversial move. SIS argued that civil courts have superior jurisdiction over syariah courts to review the question whether a fatwā may validly target the organization on the grounds that SIS as an organization is not a Muslim individual and thus a “secular entity that falls outside of the Islamic judicial system.”[2] Rejecting that argument, Judge Datuk Hanipah Farikullah ruled that the civil court had no jurisdiction because only syariah courts, established on a state-by-state basis, may determine the validity of a fatwā based on Article 121(1A) of the Federal Constitution.[3]
Notwithstanding the outcome, the SIS request was a significant because it demonstrated that the organization found it strategically necessary to advocate for limiting the reach and authority of the fatwā condemning their activities through the civil courts, rather than seeking to resolve the conflict in the Islamic courts.
Critics of SIS’s positions on matters of Islam and Islamic law viewed their petition move as confirmation of the organization’s “secular” rather than “Islamic” identity.[4] But SIS’s choice of forum in fact arguably reveals an area in which activist organizations that resist decisions made by Malaysia’s Islamic institutions seek a fair hearing in Malaysia’s legal system.
The petition was filed on 13 October 2014 by SIS Forum (Malaysia). Petitioners included the group’s co-founder Zainah Mahfoozah Anwar and former Minister in the Prime Minister’s department Datuk Mohd Zaid Ibrāhīm. Respondents were the State of Selangor, the Selangor Islamic Affairs Council (MAIS), and the Selangor Fatwā Committee.
When Judge Datuk Hanipah Farikullah dismissed the application for judicial review, SIS successfully appealed his decision on 2 March 2017 to orchestrate the return of their case to the Federal High Court.[5] SIS’s to appeal was crucial to its existence, because the fatwā called for shutting down the organization and because the fatwā had been published as law, making its pronouncement to close the organization legally binding.
The appeal was ultimately successful for reasons outlined by Sisters in Islam in a public statement they made against the fatwā and the process through which it was released. These reasons, which I outline below, reveal a sense among the members of the organization that the Islamic courts in Malaysia profess a hegemonic version of Islam, that does makes it impossible for an organization like SIS to receive a fair trial after being labeled as “deviating from the teachings of Islam.”
Sisters in Islam’s press statement first points out that members of the organization were disturbed that they only “came across the fatwā by chance while surfing JAKIM’s <<spell out>> e-fatwā website on 20 October 2014, and that they were not informed or called to explain their work before the fatwā committee made its pronouncement.”[6] This chain of events demonstrates the authoritarian nature of the fatwā’s pronouncement—that it could be made without any hearing or opportunity for the organization to defend themselves.
Second, SIS argued substantively that, instead of being “deviant” from Islam, the organization’s activities in question “reflect the compassion and kindness of Islam and raise women’s awareness that there can be justice in Islam.”[7] SIS questions how such activities could be pronounced in the fatwā as “sesat and menyeleweng” (deviant and misguided), considering that the former director general of JAKIM (The Department of Islamic Development), Tuan Haji Shahir Abdullah, made a statement that SIS’s work was a form of dakwah (Ar. daʿwā), or a means a calling others to Islam. In showing former support from JAKIM and emphasizing teh way in which its work could be considered dakwah, SIS strategically sought to strengthen its case that the group is in fact “Islamic.” They further declared that SIS’s work has “strengthened the faith of many Muslim women whose experience with their husbands and the religious authorities had led them to believe that Islam was unjust and discriminatory towards women.”[8]
Third, the organization critiques the fatwā itself for its weak composition and outlines the constitutional grounds upon which its petition challenges the fatwā. SIS claims that the fatwā provides no justification for its pronouncement, no explanation of what the terms “liberalism” and “pluralism” mean, and no detail on what activities constitute going against the teachings of Islam and “hukum syarak,” or the laws of syariah.[9] The constitutional grounds upon which they challenge the fatwā follow: 1) “It clearly violates our fundamental right to freedom of expression, association and religion, as guaranteed by the Federal Constitution.” 2) “It trespasses federal powers as only Parliament has the legislative authority to make laws restricting fundamental liberties.” 3) “It has no authority to direct federal institutions like the Ministry of Home Affairs to ban and seize books and MCMC to block social media sites.”[10] SIS’s challenge to the fatwā on constitutional grounds reflects a belief that their members can claim certain rights only under Malaysian constitutional law to fight for the organization’s survival.
Lastly, the statement critiques Malaysia for being “the only Muslim country that enables a fatwā to have the force of law through a mere gazetting process and then criminalizes any violations of the fatwā.” SIS further argues that the criminalization of non-compliance with a fatwā itself “deviates from Islamic legal theory and practice.” They argue that, properly conceived ,“a fatwā is merely an advisory opinion to guide Muslims to lead a life according to the teachings of Islam. It is not legally binding and it is optional for the individual to follow it, or seek another fatwā.”[11] After thereby outright disagreeing with the legal authority of fatāwā (pl. fatwā), SIS calls the fatwā issuance an exercise of “excessive powers” by religious authorities in Malaysia, and claims that that these powers are exploited “with the complicity of the executive and legislative bodies.”[12]
More generally, SIS has argued that, “if Islam is to be used as a source of law and public policy, then everyone has a right to engage in a debate on these matters.”[13] This claim is at the heart of their advocacy—that Islamic laws, which include legally binding fatāwā like the one in this case, in a constitutionally labeled “democratic” country cannot be hegemonic, must provide justification, and must be open to legal debate and contestation from the Muslim public at large, not from members of the state-appointed religious elite. In the larger context surrounding the events discussed here—SIS’s petition for judicial review of the fatwā, the court’s initial denial of the petition, and the court’s subsequent decision to move forward with the appeal— bring into public discourse questions about where activist Muslim-majority organizations like Sisters in Islam that challenge codified Islamic laws in a democratic country might receive a fair hearing.
[1] M. Mageswari, “Sisters in Islam’s Case against Fatwa Goes Back to High Court,” The Star Online, last modified March 2, 2017, https://www.thestar.com.my/news/nation/2017/03/02/sisters-in-islam-allowed-appeal-against-deviasion-ruling/.
[2] “Sisters in Islam Challenges Fatwa on Liberalism and Pluralism,” Sisters in Islam, last modified October 31, 2014, http://www.sistersinislam.org.my/news.php?item.1300.50.
[3] Article 121(1A) of the Federal Constitution states that Malaysia’s civil courts have no power to decide on matters within the exclusive jurisdiction of the syariah courts such as issues of fatwā and ʿaqīda (faith). Constitution of Malaysia, Art. 121, § 1A.
[4] See: “PAS Youth: Sisters in Islam ‘insolent’, ‘extremists’ for contesting fatwa,” Malay Mail Online, last modified October 30, 2014, http://www.themalaymailonline.com/malaysia/article/pas-youth-sisters-in-islam-insolent-extremists-for-contesting-fatwa.
[5] Mageswari, “Sisters in Islam’s Case.”
[6] “Sisters in Islam Challenges Fatwa.”
[7] “Sisters in Islam Challenges Fatwa.”.
[8] “Sisters in Islam Challenges Fatwa.”
[9] “Sisters in Islam Challenges Fatwa.”
[10] “Sisters in Islam Challenges Fatwa.”
[11] “Sisters in Islam Challenges Fatwa.”
[12] “Sisters in Islam Challenges Fatwa.”
[13] FMT Reporters, “Conservative forces Dominating Islam, Says SIS,” Free Malaysia Today, last modified September 22, 2016, http://www.freemalaysiatoday.com/category/nation/2016/09/22/conservative-forces-dominating-islam-says-sis/.