Fatwa and Constitutional Limits: The SIS Forum Case

Some cases appear, at first glance, to be about a clash of beliefs; when in truth they are about something quieter and more structural: who has legal power, how far that power goes, and which court has the final word when limits are tested.

SIS Forum (Malaysia) & Anor v. Jawatankuasa Fatwa Negeri Selangor & Ors belongs in that category. The Federal Court was careful to say so at the outset.

This was not, in the Court’s telling, a judicial attempt to decide whether the impugned ideas were theologically right or wrong. Nor was it an occasion for the civil courts to sit in judgment over Islamic doctrine.

It was, instead, a case about constitutional boundaries, administrative legality, and the proper reach of a gazetted fatwa in a federal system. That opening move mattered. It framed the case not as a contest between civil law and Islam, but as a constitutional inquiry into whether a state religious authority had acted within the powers that the Federal Constitution and the Administration of the Religion of Islam (State of Selangor) Enactment 2003 conferred on it.

The chronology is straightforward, though the issues it generated were not.

On 17 July 2014, the Selangor Fatwa Committee issued a fatwa on “liberalism and religious pluralism,” which was gazetted on 31 July 2014 under section 47 of the Selangor enactment. The fatwa did four things.

First, it declared SIS Forum (Malaysia), along with any individual, organisation, or institution holding such views, to be deviant from Islamic teachings.

Second, it stated that publications reflecting those views should be prohibited and could be confiscated.

Third, it said that the Malaysian Communications and Multimedia Commission should block social media sites contrary to Islamic teachings and Hukum Syarak.

Fourth, it called upon individuals holding such views to repent and return to the path of Islam.

SIS Forum and its co-appellant responded by filing judicial review proceedings in the High Court, seeking declarations that the fatwa was invalid in law and an order of certiorari to quash it.

The High Court dismissed the application.

The Court of Appeal, by a 2-1 majority, affirmed that dismissal.

The matter then went to the Federal Court, where the appeal was allowed by a majority.

What makes the Federal Court judgment especially significant is the discipline with which it separated theology from legality. The Court insisted that article 121(1A) of the Federal Constitution does not create a legal black hole into which all disputes touching Islam must disappear from civil judicial scrutiny.

Rather, article 121(1A) prevents the civil courts from deciding matters that are actually within the jurisdiction of the Syariah courts. It does not enlarge Syariah jurisdiction beyond the limits already set by the Constitution. Those limits still have to be identified, and the final authority to interpret the Constitution remains with the superior civil courts under article 121(1), read together with article 4(1).

In reaching that position, the Court drew on a line of modern Federal Court authority including Semenyih Jaya, Indira Gandhi, Alma Nudo, Rosliza, Iki Putra, Nik Elin, and Loh Siew Hong. The judgment also revisited Latifah Mat Zin and even the pre-1988 case of Myriam to explain why article 121(1A) was introduced in the first place: not to withdraw constitutional interpretation from the civil courts, but to prevent them from substituting themselves for Syariah courts in matters that truly fall within Syariah jurisdiction. That distinction is subtle, but it is the hinge on which the entire case turns.

From there, the Court reduced the appeal to two main issues.

The first was whether the fatwa could lawfully apply to SIS Forum itself, which was a company limited by guarantee and therefore a corporate body rather than a natural person. The second was whether the fatwa exceeded state power by purporting to authorise confiscation of publications and by directing a federal regulator, the MCMC, to block online content.

Both questions turned on Item 1 of the State List in the Ninth Schedule to the Federal Constitution, which defines the matters on which state legislatures may enact laws relating to Islam. The Court took a careful interpretive approach to Item 1, noting the significance of punctuation and treating the semicolon-separated components as distinct limbs.

This allowed the Court to map the fatwa against the exact constitutional heads of state legislative power, rather than treating “Islamic law” as a broad and uncontained reservoir of authority. It is a method worth noticing, because it reflects a wider judicial habit in recent constitutional cases: power is not denied, but it is parsed.

On the first issue, the Federal Court returned to a question it had already touched on in the earlier SIS Forum (1) decision: what does it mean, in Item 1, to speak of “persons professing the religion of Islam”?

The Court held that this phrase does real constitutional work. It is not decorative. Several limbs of Item 1 expressly refer to persons professing Islam, and the Court read that as a limiting condition on state legislative power.

A corporation, however useful it may be as a legal vehicle, does not pray, fast, recite the syahadah, or undertake acts of personal religious commitment. In that sense, it does not “profess” a faith.

The Court rejected the respondents’ attempt to argue from notions of “corporate religion,” and it was similarly unpersuaded by the point that corporations may pay zakat. Zakat, the Court noted, appears in a different limb of Item 1 and does not itself resolve the meaning of “professing” where that phrase is expressly used elsewhere.

The Court also rejected the reasoning below that had effectively lifted the corporate veil in order to treat the Muslim individuals behind SIS Forum as if they were the corporation itself. That move, the Federal Court said, did violence to the actual language of the fatwa, which itself distinguished between SIS Forum, individuals, organisations, and institutions.

This part of the judgment is also notable for its insistence on precedent. The Federal Court was unusually direct in criticising the Court of Appeal for trying to sidestep SIS Forum (1) by treating relevant passages as obiter. The majority held that those earlier observations were part of the reasoning that led to the conclusion that section 66A of the Selangor enactment was unconstitutional. They were therefore not stray remarks but part of the ratio supporting the earlier judgment.

The Court reinforced that conclusion by relying on Kesultanan Pahang v. Sathask Realty Sdn Bhd, which it treated as affirming the broader proposition that corporations cannot profess a religion. One senses, in this section of the judgment, a second message running beneath the first. The case is not only about the meaning of constitutional text; it is also about the discipline of the judicial hierarchy. On that view, the Federal Court was defending two boundaries at once: the constitutional boundary between state and federal power, and the institutional boundary between binding authority and judicial improvisation below.

The consequence was not to strike down paragraph 1 of the fatwa in its entirety. The Court took a narrower path.

It expressly declined to comment on the theological substance of the statement that liberalism and religious pluralism are deviant from Islamic teachings. That was a matter of Islamic doctrine, and the Court said it was not for the civil judiciary to adjudicate. But the legal application of the fatwa had to be read within constitutional bounds.

Accordingly, paragraph 1 remained valid only to the extent that it applied to natural persons, that is, “individu.” It was invalid insofar as it named SIS Forum itself and extended to organisations or institutions as such. In practical terms, the paragraph survived, but only after being read down by deleting “SIS Forum (Malaysia)” and the words “dan pertubuhan, atau institusi.”

This is a careful example of judicial severance rather than judicial demolition. The Court did not erase the state’s authority to make doctrinal determinations affecting Muslims. It insisted instead that such authority had to remain within the class of persons that the Constitution allowed the state to reach.

The second issue revealed a different dimension of the case: not who could be bound, but what a fatwa may lawfully do once it is gazetted. Here the respondents argued that a fatwa is merely advisory, a religious opinion that may include suggestions to relevant agencies without itself operating as law.

The Federal Court refused to accept so soft a description. Once gazetted, a fatwa in Selangor acquires binding force through section 49 of the Selangor enactment. The Court stopped short of declaring a fatwa to be subsidiary legislation in the strict formal sense, but held that it is sufficiently analogous to subordinate legislation for constitutional scrutiny to apply.

If the parent enactment must stay within Item 1 of the State List, then a gazetted fatwa made under that enactment must remain subordinate to those same limits. That conclusion matters greatly. It prevents state authorities from evading constitutional review simply by characterising an operative legal instrument as an “opinion.”

In public law, courts often look past labels to legal effect. This judgment is very much in that tradition.

On that reasoning, paragraphs 2 and 3 could not stand.

Paragraph 2 said that publications reflecting the condemned ideas should be banned and could be confiscated. The Court held that the express conferral of authority through the words “boleh dirampas” was unsupported by any limb of Item 1. Control over publications also sat uneasily with section 7 of the Printing Presses and Publications Act 1984, a federal law.

Paragraph 3 fared no better. By directing the MCMC to block social media sites, the fatwa purported to command a federal statutory body in relation to matters governed by federal communications law, including section 3(3) of the Communications and Multimedia Act 1998. For the Federal Court, these were not harmless recommendations floating in an advisory sphere.

Because the fatwa had legal force once gazetted, the relevant paragraphs amounted to state-made intrusions into federal legislative and administrative terrain. That was enough to render them invalid. Here the case takes on a broader federal significance. It reminds us that constitutional federalism is not suspended when religious administration is in issue. A state religious authority still remains a state authority.

Paragraph 4, however, survived. It directed individuals holding the condemned views to repent and return to the path of Islam.

The Court held that this fell within limb (vii) of Item 1, which permits state law on the control of propagating doctrines and beliefs among persons professing the religion of Islam. In other words, paragraph 4 remained within the constitutionally permitted field of regulating the propagation of religious doctrines among Muslims. This too is instructive.

The Court was not engaged in a blunt anti-fatwa exercise. It upheld what it considered constitutionally supportable, severed what exceeded state competence, and read down what improperly extended to legal persons incapable of professing a religion. That calibrated approach may explain why the judgment is likely to endure as an important authority: it neither collapses constitutional review into deference nor expands review into a roving inquiry over religious substance.

The final decision, then, was precise rather than sweeping. The appeal was allowed by majority. The fatwa remained valid only in part: paragraph 1 was to be read down so that it applied only to natural persons and not to SIS Forum, organisations, or institutions; paragraphs 2 and 3 were invalid and set aside; paragraph 4 was left intact. The Court also made no order as to costs, describing the matter as public interest litigation.

The dissent, delivered by Abu Bakar Jais FCJ, would have taken a very different path. In his view, the dispute should have been treated as falling within Syariah jurisdiction, and it was unrealistic to allow a company effectively run by Muslims to escape the operation of a fatwa merely because of its corporate form. That dissent is important because it shows that the deepest tension in the case was not simply about liberalism or pluralism. It was about the constitutional vocabulary through which Malaysia manages overlapping legal orders: jurisdiction, personhood, federalism, and the judicial role itself.

In the end, the lasting significance of SIS Forum lies not in any rhetorical flourish, but in its insistence that constitutional boundaries remain meaningful even in sensitive terrain. The civil courts do not decide theology merely because a dispute mentions a fatwa. But neither are they disabled from asking whether a state authority has acted within constitutional and statutory limits.

The case therefore stands as a reminder that legal pluralism in Malaysia is not sustained by silence between institutions, but by disciplined interpretation of their boundaries. It confirms that article 121(1A) is a jurisdictional restraint, not a constitutional withdrawal of judicial power; that Item 1 of the State List contains real textual limits; that corporations do not, in this constitutional setting, “profess” a religion; and that a gazetted fatwa, precisely because it can carry legal effect, must remain open to review for legality.

For a law firm blog, that may be the most useful way to understand the case. It is not only a dispute about one fatwa. It is a lesson in how constitutional order is preserved when legal authority speaks in the language of faith.

Thank you very much for reading.

This article was prepared merely to provide educational and informational purposes. Please consult with a licensed lawyer in case of any queries or concerns. Our firm offers paid consultations on the matter.