Source: The Sun Online
BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
ONCE ever so rarely emerges a court decision that will have a reverberating effect far beyond its own facts and parties to the case.
I speak of yesterday’s decision of the Federal Court in the Indira Gandhi case.
Before the Federal Court were two important questions: (1) who has authority to decide on matters of conversion of religion – the syariah courts or the civil courts where an issue arises involving its constitutional or statutory interpretation?
(2) In such conversion cases can one parent (without the consent of the other) have the final say?
Who has jurisdiction
Justice Zainun Ali’s decision on behalf of the Federal Court, settled once and for all the raging controversy that in matters involving the review of any administrative (executive) action including by religious authorities, only the civil court had jurisdiction.
So, in this case where the Perak state religious authorities had issued conversion certificates (an executive action), only the civil court was empowered by the Constitution to judicially review that decision.
This power of judicial review was critical as a bulwark against unlawful legislation and executive action.
It is a “basic structure” of the Constitution which Parliament cannot abrogate or alter even by “constitutional amendment, act of Parliament or state legislation”.
And this power cannot be conferred on the syariah courts.
“The conferment of judicial functions on bodies other than courts, thus understood, is an incursion into the judicial power of the Federation,” ruled the Federal Court.
In short, the civil courts and not the syariah court had jurisdiction to deal with the review of such matters as the issuance of conversion certificates.
The Federal Court declared conclusively that courts cannot decline jurisdiction in any matter involving constitutional issues.
The decision provides relief to the mother, Indira, whose three children were surreptitiously and unilaterally converted to the Muslim faith by the husband – a new Muslim convert.
The children were “jockeyed” to and fro the syariah and the civil courts as Indira sought to get her children back in her almost decade-long court battle.
The syariah courts assumed jurisdiction and held the husband was entitled to do so.
The Court of Appeal in a 2-1 majority decision decided that the syariah courts had exclusive jurisdiction to decide this issue.
As a non- Muslim Indira cannot contest the issue in the syariah court. The Federal Court put this right stating conclusively that “(a)s the Syariah Court cannot hear the appellant’s application, we conclude that the High Court has jurisdiction. It is evident that the two courts operate on a different footing altogether. Power to review rests solely with the civil courts”.
Consent of both or one parent?
At the heart of the arguments, also, was the definition of the term “parents”.
Does it refer to one parent only – that is, the male spouse; or includes the mother as well.
The Federal Court has now made it clear.
Both the parents must consent if the child is below 18 years of age.
“The consent of both parents must be sought. The article should not be construed literally, it requires the consent of both parents. The appellant (mother), is a dominant influence in their lives. This is a serious interference in their lives, it would be a very wrong thing,” said Justice Zainun in the 99-page judgement.
As regards the basic structure doctrine, the Federal Court was in fact reiterating its earlier ruling in Semenyih Jaya delivered also by Justice Zainun as recently as last year.
Which had ruled that judicial power vests in the courts and no one else; and that this basic structure of the Constitution could not be whittled away by an act of Parliament.
It overruled an earlier Federal Court decision (of Kok Wah Kuan) which bucked the trend and held that Parliament could do as it liked by amending the Constitution. (“Affirming the judiciary’s independence”, May 1, 2017).
But, as I lament in a forthcoming article (in the Malaysian Judiciary Journal), there was a feeling that some panels of the Federal Court were ignoring this decision (Semenyih Jaya).
So, it became unclear whether this decision would be bestowed the cause celebre status it deserved; or be marginalised as a case of judicial over-reach.
Mercifully, my doubts – shared by a good segment of the profession – have been laid to rest.
At another level, Justice Zainun retires later this year.
This saddens the profession and me personally.
I was her lecturer at the Law Faculty of the University of Malaya.
She bestows judgments with a masterly analysis that cut through textual language, aligning them with contemporary understanding and core fundamental societal values.
As illustrated by her dissent in Sandah’s case – where Her Ladyship upheld the right of natives to their traditional land rights. (“A blow to indigenous rights”, Jan 22.)
As well as her dissent in the Allah case (ban of the use of the word “Allah” in a publication) and Kugan’s case (where she said exemplary damages may be awarded for breach of constitutional duty).
Her scholarship, ever so eloquently expressed, will be sorely missed. As will her presence on the bench of the Federal Court.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.