A mother pines for her child, the community is polarised, the judiciary is split down the line; the legislature maintains thunderous silence.
ANYONE with an iota of humanity will share the torment of Indira Gandhi who has not seen her youngest child Prasana Diksa since early 2009 when her ex-husband, a convert to Islam, used the syariah authorities as instruments to obtain custody over the three minor children, the youngest 11 months old, and to convert them to Islam.
In the syariah court hearing for custody, the pining mother was not heard because the syariah court has no jurisdiction over non-Muslims. Likewise, the administrative proceeding for the unilateral conversion of the children was conducted behind the back of the mother.
A civil court reversed the custody order in favour of the mother. When the father did not comply fully, a contempt order was issued. The police refused to enforce it because there were conflicting custody orders.
In mid-2015, a civil court quashed the conversion orders on grounds of natural justice, violation of the Constitution and violation of the procedural requirements of the relevant Perak legislation.
But in December 2015, the Court of Appeal, in a shatteringly controversial decision, extended the reach of Article 121(1A) and held that the issue of conversion is solely within syariah court jurisdiction. This is so even though one of the contestants is outside the jurisdiction of the syariah court and has nowhere else to go other than the civil courts.
And so the trauma continues: a mother pines for her child, the community is polarised, the judiciary is split down the line on how to resolve conflict of jurisdiction cases. The legislature maintains a thunderous silence.
If there is a silver lining to the contentious Court of Appeal decision, it is the learned dissenting opinion of Justice Hamid Sultan Abu Backer. His alternative narrative will (in the words of the late American Chief Justice Hughes) be “an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed”.
Article 121(1A): Justice Hamid Sultan correctly pointed out that “what the civil courts cannot do is to intervene in the lawful decisions of the syariah courts made within (their) jurisdiction”.
Article 121(1A) applies only when all the litigants are Muslims; when the topic is statutorily assigned to the syariah court.
But if either party is not subject to the syariah court’s power or if the subject matter is not within the jurisdiction of the syariah court, then the civil courts are the sole arbiter.
If the syariah enactment is challenged as unconstitutional or if the syariah courts act in excess of jurisdiction, the High Court’s constitutional duty to defend the Constitution is not ousted by Article 121(1A).
Excess of jurisdiction: In this case the syariah court clearly acted outside its jurisdiction by entertaining and granting a custody application against a non-Muslim defendant (the mother). This is a serious violation of Schedule 9, List II, Para 1 that the syariah courts “shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph”.
The action of the syariah court was also a violation of section 50(3) of the Perak Enactment which says plainly that civil jurisdiction lies if all the parties to the action are Muslims.
Administrative decisions: Under the Perak law, the granting of certificates of conversion is not the function of the syariah court but of the Registrar of Converts who is not a court and is not shielded by Article 121(1A).
Procedural non-compliance: The serious and multiple acts of non-compliance with the procedural requirements of sections 96 and 106 of the Perak Enactment by the Registrar of Converts rendered the conversions invalid.
These transgressions were: no applications by the converts; their absence; no utterance of the mandatory Affirmation of Faith; absence of free will and understanding of the affirmation by the converts-to-be.
Constitutional supremacy: In a learned exegesis on constitutional supremacy and its distinctive jurisprudence, Justice Hamid Sultan reiterated that constitutional issues are the exclusive preserve of the civil courts and the syariah court has no jurisdiction.
He called for a balancing of the rights of the parties and judicial principles, not only with the Federal Constitution but also with the Rukun Negara to achieve a just result. In an admirable passage he reminded the Muslim appellant that the Quran ordains that he sorts out his obligations to non-Muslims.
Most significantly he proposed some solutions to arrest the nation’s woes in this area of jurisprudence. First, if the issue involves a Muslim and a non-Muslim, common sense dictates that it has to fall under the purview of the civil courts.
Second, in all “hybrid” cases the Chief Justice could direct a specially empanelled court with jurists familiar with both syariah and civil laws.
Third, the Chief Justice could liaise with the Attorney-General to amend the Courts of Judicature Act to allow the State Chief Syariah judge to sit in civil courts with two other judges, one a Muslim, the other a non-Muslim, to reach a decision in such hybrid cases.
All in all it is submitted that the majority opinion in the Indira case does not espouse a view and vision of the law that should sustain in a just and multi-racial society; rather, the dissent of Justice Hamid Sultan demonstrates the ways in which the majority seriously misses the mark.
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.