Lawyer Malik Imtiaz Sarwar said this has been decided by the Federal Court on several occasions since 2018 following the landmark decision in the case of M Indira Gandhi.
Indira’s case involved the conversion of minors to Islam by one parent without the consent of the other, commonly referred to as a unilateral conversion.
“In this regard, the Court of Appeal did not follow the past decisions of the apex court,” said Malik, who appeared for rights group Sisters in Islam (SIS) through SIS Forum (Malaysia) Bhd.
SIS is appealing against a 2023 Court of Appeal decision that dismissed its challenge of a fatwa imposed by the Selangor religious authorities about 10 years ago.
In the 2014 fatwa, the Selangor Islamic religious council (Mais) decreed that SIS had deviated from the teachings of Islam by subscribing to liberalism and religious pluralism.
Announcing the majority decision, appeals court judge Che Ruzima Ghazali said the fatwa was “not conclusive”.
He said SIS could request that the fatwa committee review its decision, and provide evidence to the body to contradict its findings.
However, Justice M Gunalan dissented, saying the High Court had erred when dismissing SIS’s legal challenge on Aug 27, 2019. He said that unlike individuals, SIS cannot profess a religion.
Today Malik, assisted by A Surendra Ananth, submitted before a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat that a fatwa, once gazetted, has a force of law.
“That the Islamic administrative body’s decision cannot be challenged by way of judicial review in a civil court goes against the rule of law,” he said.
Also on the panel hearing the appeal were Justices Abang Iskandar Abang Hashim, Nallini Pathmanathan, Abu Bakar Jais and Abdul Karim Abdul Jalil.
Malik also said SIS Forum was beyond the reach of the state fatwa committee.
He said there was also a breach of natural justice as his client had not been given the right to be heard before the fatwa was gazetted.
SIS Forum named Mais and the Selangor government as respondents in the appeal.
Lawyer Haniff Khatri Abdulla, appearing for Mais, told the court the disputed fatwa cannot be equated to delegated legislation and was, therefore, not amenable to judicial review.
He said SIS Forum could not nullify the fatwa as all legal procedures were strictly followed.
Lawyer Aidil Khalid, who also represented the fatwa committee, said the majority in the Court of Appeal had arrived at the correct decision. He said it was unfair to claim the committee was biased.
“The appellant was also allowed to be heard as records revealed there was dialogue with the state religious authorities before a declaration was made,” he said.
The hearing has been adjourned to a date to be fixed.