Tuesday, January 30, 2018


29 JANUARY 2018

I welcome the decision of the Federal Court in the Indira Gandhi case as a long-awaited judicious and rational judgment backed by sound reasoning. It is a breath of fresh air after a long and arduous struggle for Indira Gandhi. In fact, reading the summary of the judgment, one’s response at every point is ‘yes, but of course’ and we wonder why Indira Gandhi and her family had to be put through the agony of the long court proceedings in the first place.

On the first question, the decision of the Court that the judicial power vested exclusively in the civil High Courts under Article 121(1) of the Federal Constitution may not be removed from the High Courts and that features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment is a most crucial point as it addresses the dilemma of many in those states where there is no express provision in the Syariah Ordinance to decide on certain matters and the High Courts have shown reluctance to make those decisions, citing jurisdictional concerns.  With this authoritative statement, there should be no more doubt that judicial power lies firmly in the civil courts. The Court here has made it clear that where one party is a non-Muslim, the Syariah Court cannot extend its own jurisdiction over that person and the proper forum is the Civil Courts. That is the rational and correct stand.

Although the Court in this case was deciding on the Administration of the Religion of Islam (Perak) Enactment 2004, the principles elucidated in this case apply to all State Syariah enactments.

The Sarawak legislature must take note of the statement that ‘the State must claim ownership over the matters that fall within the jurisdiction of the syariah courts by providing for it expressly in its legislation’ otherwise the syariah courts are excluded from deciding on matters which fall within Item 1 of the State List in the Federal Constitution. There must be express and clear provisions in the State enactment.

The Federal Court’s declaration that inserting clause (1A) in Article 121 [that the High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts] DOES NOT oust the jurisdiction of the civil courts NOR DOES IT confer judicial power on the Syariah Courts is significant beyond the confines of conversion cases (Emphasis mine). The Court is in fact declaring that the Civil Courts have supremacy over Syariah courts, and their judicial power cannot be constrained by Parliament.  The Federal Constitution is supreme, the power of the Civil Courts is unshakable, and that supports our stand that Malaysia is a secular country.

On the issue of conversion of a minor, the judges have taken the reasonable approach, ie the purposive interpretation of Article 12(4) and the requirement to safeguard the welfare of the child. The Court has declared that the fact of conversion does not deprive the child of the protection of the Guardianship of Infants Act, ie it ‘does not alter the antecedent legal position’. The correct position has been stated, ie that the consent of both parents is required for a minor to be converted to Islam.

This unanimous decision by the 5-member Federal Court is indeed a landmark case in Malaysia. It is a clear and cogent judgment that will hopefully put an end to cases of unilateral conversions of minors. It is also a badly needed definitive statement on the limits of the powers and the jurisdiction of the Syariah Courts.

I add my voice to that of Indira Gandhi’s lawyer M Kulasegaran that the Federal Court had the courage and moral conviction to do what Parliament lacked the testicular fortitude to carry out. It gives us new hope that the minority communities still have recourse to the courts even when their government fails them. However it remains to be seen whether the IGP will now be as equally courageous as the Federal Court judges to finally arrest the ex-husband of Indira Gandhi. Indira Gandhi deserves more than a victory on paper.

Baru Bian

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