We would like to state on the outset that Liberasi stands in solidarity with Sisters in Islam (SIS) Forum (Malaysia) in light of the recent High Court decision, in which the learned judge decided that the civil court did not have jurisdiction to preside over matters relating to fatwa as it fell within the exclusive jurisdiction of the Syariah Court.
The learned judge also made a finding that there was no issue of illegality, irrationality or procedural impropriety or disproportionality in regards to the fatwa issued.
With all due respect, we believe that the learned judge has erred in making such a decision as the learned judge has failed to take into account the unique circumstances surrounding Sisters in Islam (SIS) Forum (Malaysia) and the nature of such an entity.
The fatwa gazetted on the 31st of July 2014, states the following:
“SIS Forum (Malaysia) dan mana-mana individu, pertubuhan atau institusi yang berpegang kepada fahaman liberalisme dan pluralisme agama adalah sesat dan menyeleweng daripada ajaran Islam.”
The fatwa then calls for all publications containing pluralistic and liberal religious content to be declared illegal and seized. It also requests for MCMC to block all social websites that are contrary to the teachings of Islam.
Putting aside the recent decision of the High Court for a moment, the fatwa that has been gazetted above proves to be problematic on its own. It fails to define what is meant by liberalism and pluralism religious understanding.
The relevant part of the fatwa that seeks to be applied to individuals and unnamed organisations or institutions is arguably difficult to enforce given the vague definition mentioned above and our inability to actually gauge and measure the scale of religious understanding on an individual’s part.
However, the fatwa clearly singles out SIS Forum (Malaysia) as a lost and deviant entity which is problematic for SIS Forum (Malaysia) and its operations.
In the past 5 years after a series of court decisions, the recent judgment by the High Court is, with all due respect, another unnecessary stumbling block with capacity of producing unfavourable consequences in the future.
We say that because while the learned judge is correct in upholding that Article 121(1A) Federal Constitution in effect meant that the civil court would not have jurisdiction over matters relating to the hukum syarak of Syariah Law, the fundamental question in which judge had erred in his decision is in regards to whether or not SIS Forum (Malaysia) as a company registered in Malaysia fell within the jurisdiction of Syariah Law in the first place.
We argue that the fatwa gazetted against SIS Forum (Malaysia) falls at this first hurdle. If the common meaning of the word ‘person’ is to be used, SIS Forum (Malaysia) clearly does not fall within this definition. It is also clear from a layman perspective, that SIS Forum (Malaysia) as a company cannot profess a religion.
The learned judge in his decision, however, attempted to circumvent this problem by deciding the following:
“Now in this regard, justice warrants the lifting of the corporate veil of the first applicant.
Although a company is an artificial legal person, the directing minds of Sisters in Islam are Muslims and their activities and stance relates to Shariah codes and laws of which the fatwa is applicable.”
The learned judge’s reasoning above indicates that the fatwa is applicable because the company is Muslim which the judge supports by using two conjunctive inferences; firstly that the directors of SIS Forum are Muslim and secondly that the company’s activites relate to Islamic Laws. It is hence reasoned that the Muslim nature of the company is interlinked with the religion of its Muslim directors and the nature of the company’s work that touches on aspects of Islam.
We humbly disagree.
The lifting of the corporate veil, in our humble opinion has been misused by the learned judge to justify his finding. We humbly argue that the ‘piercing/ lifiting of the corporate veil’ is a principle that should be kept limited to cases of civil liability or criminal responsibility. It should not be used in this instance to stretch the applicability of the fatwa.
The fatwa arguably on its own is wide enough to cover the directors of SIS should they hold ‘pluralism or liberalism religious understanding’ without the inclusion of the name SIS Forum (Malaysia) (regardless of whatever definition the fatwa purports that phrase to mean).
There is no need on the part of justice for the ’corporate veil to be lifted’ and for SIS Forum as a company to fall within the scope of the fatwa. Whatever intention the fatwa was gazetted for could be achieved without needing SIS Forum (Malaysia) as a company to fall within its scope.
The decision of the High Court with our humble respect has merely resulted in an unhealthy precedent in our legal jurisprudence whereby other companies of a similar nature may be subject to frankly vague, wide and often self-contradictory religious governance by a body that has much lesser accountability measures than the civil courts.
We bring attention to a relevant part of the learned judge’s judgment which is that:
“SIS case was different from a previous court ruling on a company which had non-Muslims as its majority shareholders and revolved around the company’s properties” — as reported by the Malaymail online.
If the judgment is true and that SIS Forum (Malaysia) is a Muslim company that falls within the scope of Syariah Law, then a pertinent question that must be asked is if by simply hiring a majority number of non-Muslims directors, would the company now be considered beyond the scope of the fatwa? The inability for such finding to stand on its own is also pretty self-revealing. Directors change on a regular basis and each director may not have what would be considered by the fatwa as ‘liberalism and pluralism religious understanding’.
The rationale for lifting the ‘corporate veil’ hence fails because while the corporate veil was lifted, the directors of the company are still subject to being changed. SIS Forum Malaysia still remains a company that is stated in the fatwa regardless of any change of its directors. In order for the fatwa to still be applicable in that instance, SIS Forum (Malaysia), the company that is named in the fatwa must hence be a completely separate legal entity from its directors. The decision of the learned judge does not address this issue.
Regardless of the applicability of the fatwa, we at Liberasi maintain that freedom of religion must be upheld on an international standard and that individuals should enjoy an unfettered right to profess their beliefs in whatever shape and form, provided that those beliefs present no harm to themselves or our multi-racial community as a whole.
The desire of the State to govern free-thought and control the moral narrative of society must be curbed.
The discourse provided by organisations such as Sisters In Islam is important and should be protected.
We stand in solidarity with Sisters In Islam Forum (Malaysia) as we hope that the Malaysian legal system would provide a just avenue for recourse in due time without SIS Forum (Malaysia) having to resort to the jurisdiction of authorities that we humbly believe should not have intitially played a role in the matter at all.
In solidarity with Sisters in Islam,