IN the best of democracies, the executive and the legislature sometimes turn a blind eye to injustice due to the fear that reform may cause a backlash from constituents.
In such situations, an independent and impartial judiciary needs to provide moral leadership.
For example, slavery perished in England due to the impact of the decision in Somerset v Stewart (1772). Racial discrimination in the United States was dealt a blow by Brown v Board of Education (1954).
In India, constitutional amendments to truncate fundamental rights were outlawed in Golak Nath v State of Punjab (1971). Through the 1992 Mabo Case, the judiciary in Australia sought to end the dehumanisation of the aborigines.
A similar example of moral leadership was witnessed last Monday in our Federal Court in the case of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak.
A unanimous Bench (consisting of Justices Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Richard Malanjum, Tan Sri Zainun Ali, Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali) exhibited an erudition and courage that will reverberate in our constitutional annals for a long time to come.
The facts were that Indira and K. Patmanathan married under civil law in 1993 and were blessed with three children.
In March 2009, the husband converted to Islam. He successfully applied ex parte (behind the back of the other party) to the Perak religious authorities to dissolve his marriage, obtain custody of the kids and convert them to Islam.
The mother filed for judicial review before High Court judge Lee Swee Seng to challenge the certificates of conversion because the Registrar of Converts had failed to comply with Sections 96 and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (Perak Enactment), Sections 5 and 11 of the Guardianship of Infants Act 1961, and Articles 8 and 12(4) of the Federal Constitution. She succeeded at the High Court, lost at the Court of Appeal and then put her destiny in the hands of the Federal Court.
In a far-reaching and scintillating decision, the apex court articulated several principles of monumental significance.
Power of judicial review: Under Article 121(1) of the Constitution, judicial power is vested exclusively in the civil High Courts.
This power is essential for check and balance and is inherent in the basic structure of the Constitution. It cannot be withdrawn by Parliament through constitutional amendments.
“Regardless of the label that may be applied to the subject matter, the power to review the lawfulness of executive action rests solely with the civil courts,” says the court in a 16-page press release. The Registrar of Muallafs (converts) is not immune from the High Court’s power.
Article 121(1A): Article 121(1A) does not extinguish the power of civil courts in relation to issues of constitutionality and matters under federal law. The interpretation and enforcement of all laws regardless of their subject matter, whether civil or Syariah, is the exclusive preserve of civil courts. The Federal Court issued a strong admonition to those civil judges who in the past declined jurisdiction on the strength of Article 121(1A) even though constitutional issues were at stake.
Syariah courts: Syariah courts are not superior courts in accordance with the constitutional provisions safeguarding the independence of judges in Part IX of the Constitution. Syariah courts must confine themselves to persons and subject matters listed in the State List. Their jurisdiction is not inherent or automatic and must be conferred expressly by state legislation.
In Perak, the syariah courts have the power to issue a declaration that “a person is no longer Muslim” (i.e. cases of renunciation). However, they have no power to determine the validity of a person’s conversion to Islam.
Article 121(1A) shields syariah courts only when they exercise power within jurisdiction.
Finality clauses: The attempt by section 101(2) of the Perak Enactment to make the Certificate of Conversion final cannot oust judicial review if there is illegality.
Civil marriages: The Court clarified that despite the conversion of one parent to Islam, the Guardianship of Infants Act 1961 and the Law Reform Act continue to apply and both parents have equal rights to custody and upbringing of the infants. The best interest of the child must prevail.
Article 12(4): This Article states that for the purpose of religious instruction, the religion of a child under 18 shall be decided by their parent or guardian.
The apex court, in reversing many earlier decisions, held that in light of section 2(95) of the 11th Schedule, singular includes plural so that the consent of both parents must be obtained when a non-Muslim child is converted to Islam.
Due to the above core principles, the apex court held that the High Court was within its jurisdiction to censure the non-compliance of explicit and mandatory provisions of Sections 96(1), 106(b) and 101 of the Perak Enactment by the Registrar. The certificates of conversion were therefore void and set aside.
All in all, this decision vindicates High Court judge Lee Swee Seng and Court of Appeal judge Datuk Dr Hamid Sultan who had expressed a learned dissent in that court’s ruling.
The apex court’s wise and impactful ruling does much to reassert the principles of constitutional supremacy and judicial independence. It cautions superior courts against self-inflicted fetters on their review powers.
It puts a stop to the injustices of the past when non-Muslim spouses were left with no redress because civil courts refused to hear their plaintive cry.
However, the apex court also ruled that its judgment will be prospective to not cause convulsions for other settled cases.
- Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.