At the close of submissions today, a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said a ruling would be delivered at a later date.
Also on the panel were Justices Abang Iskandar Abang Hashim, Nallini Pathmanathan, Abu Bakar Jais and Abdul Karim Abdul Jalil.
Before proceedings commenced, a court registrar said she was instructed by Tengku Maimun to ask if the parties wished to have the appeal re-heard as Karim is set to go on mandatory retirement next month.
When proceedings began, lawyer Malik Imtiaz Sarwar, acting for SIS and Zainah, said his clients wanted to proceed with the appeal.
“There is no justification for the matter to be reheard,” he said, adding that this case has been before the courts for quite some time.
Malik said Section 78(1) of the Courts of Judicature Act 1964 permits the remaining members of a coram to deliver a ruling even if one judge were to retire.
He also said Section 78(2) provides that a rehearing should only be held if the judges are unable to arrive at a majority decision.
Counsel Haniff Khatri Abdulla, representing the Selangor fatwa council, said he would leave the decision to the bench.
The present bench had on Dec 2 heard submissions from Malik and Haniff.
Both Selangor legal adviser Salim Soib, representing the Selangor government, and lawyer Yusfarizal Yussoff, appearing for the Selangor Islamic religious council (Mais), also left the matter to the judges.
After a short deliberation, Tengku Maimun announced that the bench would hear the appeal and deliver its ruling.
SIS is appealing against a Court of Appeal decision handed down in 2023 which dismissed its challenge of a fatwa imposed by the Selangor religious authorities 11 years ago.
In the 2014 fatwa, Mais decreed that SIS had deviated from the teachings of Islam by subscribing to liberalism and religious pluralism.
Announcing the majority decision, Justice Che Ruzima Ghazali said the fatwa was “not conclusive” and that SIS could request the fatwa committee to review its decision and furnish evidence to the body to contradict its findings.
Justice Has Zanah Mehat, now retired, concurred with Che Ruzima.
However, Justice M Gunalan, also since retired, dissented. He said the High Court had erred as, unlike individuals, SIS could not profess a religion.
Today, Yusfarizal told the apex court that it ought to interpret “person” according to the definition set out in the Interpretation Act to include a corporate or unincorporated body of persons.
“SIS is a company. Its directors and shareholders must be said to profess the religion of Islam.”
He said the court must take a purposive approach in interpreting a statute to determine whether a person is a Muslim.
“So a fatwa could be applied to a Muslim, and in this case to SIS,” he added.
Salim also urged the bench to dismiss SIS’s appeal and affirm the Court of Appeal ruling. He said fatwas are binding on Muslims, as already decided in several apex court rulings.
He said an artificial person like SIS may not profess Islam but it must subscribe to the religion’s belief and philosophy.
In his reply, Malik said his client had no issue with fatwas, but said they could not be gazetted to label individuals, organisations or institutions, including SIS, who believe in liberalism and religious pluralism as having deviated from the teachings of Islam.
He said under a Selangor Islamic religious enactment only a living person could profess Islam and be subjected to fatwas.
Malik also said SIS was beyond the reach of the state fatwa committee.
“The respondents’ (Selangor religious authorities) intention is positive but the mechanism used to include a body corporate to profess the Islamic religion is problematic,” he said.
He also said there had been a breach of natural justice as his client had not been given the right to be heard before the fatwa was gazetted.