A CRITICAL ANALYSIS OF SIS FORUM (M) & ANOR V JAWATANKUASA FATWA NEGERI SELANGOR & ORS [2025] MLJU 1808

1.0 Introduction

The appellants were SIS Forum (Malaysia) (the first appellant), a company limited by guarantee, and its president, Zainah Anwar (the second appellant). This case concerns a judicial review challenge against a gazetted fatwa issued by the Selangor State Fatwa Committee (the Fatwa) and raises the question of the constitutional limits on State religious authority.¹ The Fatwa dealt specifically with liberalism and religious pluralism, explicitly named SIS Forum (Malaysia), allowed publications to be prohibited or confiscated, and directed the Malaysian Communications and Multimedia Commission (MCMC) to block certain social media content.

This case is highly significant for three reasons. Firstly, it emphasised the constitutional boundary between the jurisdiction of the civil courts and the Syariah courts. The Federal Court clarified that Article 121(1A) of the Federal Constitution does not remove the Superior Courts’ constitutional role in determining whether a matter falls within Syariah jurisdiction in the first place, as constitutional interpretation and judicial review of action in excess of legal power remain with the Superior Courts.

Secondly, the Federal Court clarified the meaning of “persons professing the religion of Islam” and confirmed that a corporation cannot profess a religion, as the word “profess” connotes a declaration of faith that an artificial legal person cannot make.² Lastly, the case limits the legal reach of a gazetted fatwa: although it is legally binding, it remains subordinate to Item 1 of the State List, Ninth Schedule of the Federal Constitution and therefore cannot go beyond the legislative power conferred by the Constitution.

2.0 Facts of the Case

On 17 July 2014, the Selangor State Fatwa Committee issued the Fatwa Pemikiran Liberalisme dan Pluralisme Agama, which was gazetted on 31 July 2014 under the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (ARIE 2003). The Fatwa explicitly named SIS Forum (Malaysia), declared liberalism and religious pluralism to be deviant from Islamic teachings, and stated that publications involving these ideologies could be banned and confiscated. Moreover, MCMC was asked to block certain social media content.³ A fatwa is a ruling or opinion made by authorised religious scholars concerning Hukum Syarak, and it is considered binding on Muslims in the particular state where it is gazetted.⁴

SIS Forum and its president, Zainah Anwar, as the appellants, claimed that they were affected by the Fatwa and sought judicial review, together with declarations that SIS Forum, as a company, could not be subjected to the Fatwa as a “person professing the religion of Islam” and that the prohibition of publications in the Fatwa exceeded State authority. They also challenged the Fatwa on the ground that it attempted to direct MCMC, which is a federal authority. The High Court dismissed the application for judicial review, and the appellants appealed to the Court of Appeal. The Court of Appeal upheld the High Court’s decision by a 2-1 majority. Dissatisfied, the appellants appealed to the Federal Court.

3.0 Legal Issues and Arguments

The Federal Court distilled the case into two principal legal issues:

1. Whether the Fatwa could apply to SIS Forum (Malaysia), a company limited by guarantee, given the requirement that State Islamic law concerns a “person professing the religion of Islam” within the meaning of Item 1 of the State List, Ninth Schedule of the Federal Constitution.
2. Whether the Fatwa exceeded State legislative authority by purporting to direct federal authorities to take action, to authorise the confiscation of publications and to restrict social media content relating to the appellants.

3.1 Issue I: Whether the Fatwa Could Apply to SIS Forum (Malaysia)

The Appellants’ Arguments

The appellants’ counsel contended that the Fatwa could not apply to them because SIS Forum (Malaysia) is a company limited by guarantee, not a natural person, and therefore cannot “profess” the religion of Islam. Only persons who profess the religion of Islam fall within Item 1 of the State List in the Ninth Schedule.

The appellants further contended that the Court of Appeal failed to abide by the doctrine of stare decisis. In the earlier Federal Court decision of SIS Forum (1), the Federal Court had already held that only a natural person may profess the religion of Islam, as the opening words of Item 1 indicate that it was intended to cover only the subject matter of personal laws, which by nature apply only to natural persons.⁵ The Court of Appeal, however, deemed this to be obiter dicta.

The Respondents’ Arguments

The respondents argued that a fatwa can be issued on any subject in Islam, including inanimate objects as well as physical or abstract ideas. In addition, they argued that no offence had been committed and no person had been charged in the Syariah Court, so it was unnecessary to determine whether SIS Forum, as a company, could profess the religion of Islam. Furthermore, they argued that the observations of the Federal Court in SIS Forum (1) were indeed obiter dicta, because the main issue in that case was the constitutionality of section 66A of the ARIE 2003, and not specifically whether corporations could profess the religion of Islam.

3.2 Issue II: Whether the Fatwa Exceeded State Legislative Authority

The Appellants’ Arguments

The appellants submitted that the Fatwa could not purport to direct federal authorities to take action, suggest that publications could be confiscated, or direct MCMC to restrict social media content relating to the appellants. These matters fall outside Item 1 of the State List, Ninth Schedule of the Federal Constitution and therefore exceed the constitutional powers of the respondents.

The Respondents’ Arguments

The respondents argued that a fatwa is effectively a religious edict. In their submission, it cannot be considered legislation, is merely an opinion, and cannot be likened to subsidiary legislation because its main purpose is to provide advice. They submitted that the purpose of the Fatwa is to assist the relevant government authorities, having regard to the fact that Islam is the religion of the Federation under Article 3(1) of the Federal Constitution and that the Yang di-Pertuan Agong is the head of Islam as per Article 37(1).

4.0 Court’s Decision and Reasoning

4.1 Issue I: Whether the Fatwa Could Apply to SIS Forum (Malaysia)

The Federal Court held that both the State Legislature and the Syariah Court derive their power from Item 1, State List, Ninth Schedule of the Federal Constitution, and that the State Legislature cannot exceed that power or legislate on matters outside the list. In its judgment, the Federal Court divided Item 1 into eight limbs, separated by semicolons. The jurisdiction of the Syariah Court is limited by both ratione personae and ratione materiae. The former confines it to persons professing the religion of Islam, and the latter to the matters listed in Item 1 of the State List, Ninth Schedule.

To answer the issue on the meaning of “profess”, the Federal Court reproduced the judgment of the Federal Court in the earlier case of SIS Forum (1), which referred to Kesultanan Pahang v Sathask Realty Sdn Bhd. That judgment stated that the word “profess”, in its natural and ordinary meaning, suggests a declaration of faith, which is something an artificial person is incapable of making.⁶ The Federal Court stressed that these observations cannot be deemed obiter dicta, as they formed part and parcel of the judicial reasoning that resulted in the finding that section 66A of the ARIE 2003 is unconstitutional.⁷ It held that even in its widest sense, the word “profess” can only be stretched as far as to denote “a commitment to faith”, which only a natural person is capable of making.

Additionally, the Federal Court rejected the High Court’s decision to lift the corporate veil of the first appellant and conclude that its directing minds were Muslims. This is because the Fatwa itself differentiates SIS Forum, as a corporation, from individuals. There is no need to treat the corporation and the Muslims directing it as one entity. Lastly, the Federal Court found that the Fatwa is valid only insofar as it applies to natural persons professing the religion of Islam, and not insofar as it treats SIS Forum as an artificial person.

4.2 Issue II: Whether the Fatwa Exceeded State Legislative Authority

The Federal Court rejected the respondents’ argument that the Fatwa serves only as an opinion or advice to the government. Section 49 of the ARIE 2003 explicitly provides that once a fatwa is gazetted, it is binding on Muslims in Selangor and carries significant force of law. Even though a fatwa is not strictly treated as subsidiary legislation, it is akin to subsidiary legislation and carries significant weight in the eyes of the law.

Next, the ARIE 2003 is itself subject to Item 1 of the State List, Ninth Schedule. The Fatwa, being subordinate to the ARIE 2003, must therefore also remain within Item 1, and it cannot regulate or pronounce on matters outside its legislative competence. Furthermore, the Federal Court held that the part of the Fatwa providing that publications may be banned or confiscated is not supported by any of the limbs of Item 1. The direction to MCMC to restrict relevant social media content also exceeded State jurisdiction, since MCMC is itself a federal authority and communication and telecommunications are matters under the Federal List, Ninth Schedule of the Federal Constitution.

4.3 The Final Judgment

The Federal Court delivered its decision on 19 June 2025. By a 3-1 majority, with Abu Bakar Jais FCJ dissenting, it allowed the appeal and set aside the decision of the Court of Appeal. It held that SIS Forum, being an artificial person, could not be regarded as a person capable of professing the religion of Islam within the ambit of Item 1 of the State List. The Federal Court further held that the Fatwa could not extend to matters beyond the constitutional competence of the State Legislature. As a result, the Fatwa remains valid only to the extent that it applies to natural persons professing the religion of Islam, and not in respect of the paragraphs on the prohibition and confiscation of publications and the direction to MCMC.

5.0 Critical Analysis and Conclusion

In my view, the Federal Court’s decision is correct. The learned judges of the Federal Court made the constitutional boundary clearer. Despite Article 121(1A) of the Federal Constitution, the line between the civil courts and the Syariah courts is often very blurred, as there are frequent cases, like this one, that touch on matters within the jurisdiction of both.

I agree with the Federal Court’s decision that the law cannot treat a corporation as “professing the religion of Islam” merely because it is governed by Muslims. The Federal Constitution, specifically the Ninth Schedule, makes it clear that the jurisdiction of the Syariah Court concerns only the personal law of a Muslim, and a corporation, to my mind, has nothing to do with personal law, as a corporation involves much larger stakes and a bigger community than a single family unit. Hence, a corporation and the people behind it cannot be legally treated as the same entity. Nevertheless, I think such a narrow interpretation may create practical challenges where corporations are established specifically to promote religious activity, and disputes may arise as to the extent to which the activities of such companies should be governed by State Islamic law.

As for the implications, where a fatwa concerns matters outside Item 1 of the State List, it can now be challenged easily, as this case has set a good precedent in resolving jurisdictional disputes between the State and the Federal Government. The decision could help to restrain religious authorities from transgressing constitutional limits, while allowing substantive religious matters to remain within the jurisdiction of the Syariah Court.

In conclusion, this case confirms that a gazetted fatwa, although binding, remains subject to the Federal Constitution, and that a corporation, as an artificial person, falls outside the reach of State Islamic law.

Footnote(S):

1. SIS Forum (Malaysia) & Anor v Jawatankuasa Fatwa Negeri Selangor & Ors [2025] MLJU 1808 (Federal Court).
2. Ibid.
3. Ibid.
4. Administration of the Religion of Islam (State of Selangor) Enactment 2003, s 47.
5. SIS Forum (Malaysia) & Anor v Jawatankuasa Fatwa Negeri Selangor & Ors [2025] MLJU 1808 (Federal Court).
6. Ibid.
7. Ibid.