Judiciary has upheld shared commitment of 1957

I refer to the Malaysiakini report Apex court rules in favour of Indira Gandhi in unilateral conversion case.

The decision of the Federal Court is a landmark constitutional decision. This article will only focus on the first part of the judgment, i.e. the jurisdiction of the civil and syariah courts

The problem can be traced back to the 1980s. The rise of Islamisation and the attack on the judiciary eventually culminated in an amendment to the Federal Constitution on March 17, 1988.

The term “judicial power” was removed from Article 121(1) and clause (1A) was added to provide for the exclusive jurisdiction of the syariah courts.

The amendment had an apparent impact on how the courts approached matters on Islamic administration. Generally, the courts would refrain from exercising their jurisdiction over such matters even when there were clear constitutional violations.

The strong observations of the former lord president, Salleh Abas, in Che Omar bin Che Soh v Public Prosecutor[1988] 2 MLJ 55 (“Che Omar”), to “set aside personal feelings” when wearing the hat of a judge was unfortunately forgotten.

Though some decisions had attempted to solve the perceived dichotomy, the issue remained. The courts still declined jurisdiction the moment the matter was one concerning the administration of Islam.

The Federal Court has finally made a firm stand. It first started with the decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Appeal, where the court declared that the separation of powers and the independence of the judiciary are part of the basic structure of the Constitution.

The Federal Court effectively struck down the amendment to the Article 121(1). However, the wider concepts of separation of powers and the independence of the judiciary are nothing but meaningless forms without the necessary power to realize them.

That power is termed as ‘judicial review’, i.e. the power of the courts to review the actions of public bodies. This aspect has been comprehensively dealt with by the Federal Court in Indira Gandhi.

Many have erroneously placed the Syariah courts on par with the civil courts. This proposition does violence to the Constitution. The following observations by the Federal Court in Indira Gandhi are pertinent:

The power of the courts of judicial review forms part of the basic structure and cannot be limited by any law, including an amendment to the Constitution. That power cannot be given to any other tribunal.

Only the civil courts can determine matters concerning constitutional and administrative issues, including the actions of Islamic bodies. This also includes the interpretation of “legislation enacted for the administration of Muslim Law”.

Syariah courts are creatures of statute in that their existence and jurisdiction is dependent on the state legislature. Such jurisdiction must be expressly provided for within the ambit of Item 1 in the State List and can only extend over persons professing the religion of Islam.

The jurisdiction of the syariah courts when it comes to Islamic law is confined to its private aspect and “does not extend to its public one”.

Judicial power cannot be vested in the syariah courts as are constituted as a “superior court” within the meaning of the Constitution.

Importantly, the Federal Court questioned its earlier decisions in Lina Joy v Majlis Agama Islam Wilayah Persekutuan (“Lina Joy”) and Haji Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah, terming the latter as being “unduly simplistic”.

Just because matters of conversion involve Islamic law and practice, it does not mean that the civil courts do not have jurisdiction. The civil courts have jurisdiction as long as the matter involves a constitutional issue.

As I see it, the following are the larger implications from the said decision.

Ouster clauses cannot be interpreted to oust the jurisdiction of the courts to review decisions on the grounds of illegality, proportionality, reasonableness and procedural impropriety.

Preliminary objections on the basis of jurisdiction when the underlying matter concerns constitutional issues should no longer be entertained.

Section 66A of the Selangor Administration of Islamic Law Enactment which confers judicial review powers to the Syariah Court must be reviewed.

The court’s observation that Islamic law cannot extend to its public aspect has huge implications. This reinforces Che Omar, which means Islamic law must be confined to personal law.

I believe this puts the “hudud” debate to rest. The states do not have the power to legislate “hudud” as it pertains to the offences that are public in nature.

This would also put the status of many of the existing Islamic criminal offences in doubt, as they mostly pertain to public law (for a detailed analysis, see this article on Confronting the Constitutionality of Hudud.

The courts observation on conversion matters is significant. The court cited Richard Malanjum CJSS’s dissent in Lina Joy with approval, where his lordship said:

“Hence when jurisdictional issues arise civil courts are not required to abdicate their constitutional function. Legislation criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only the civil courts have jurisdiction to determine”.

This necessarily means that the question of whether a person professes the religion of Islam, being one that involves the constitutional right to profess (or not to profess) a religion and the right to freedom of expression, can be dealt with by the civil courts. This requires further legal analysis which will not be dealt with here.

The larger significance of this decision is that it clarifies the secular nature of the Constitution. For too long has our country been plagued with religious extremism. The judiciary has finally taken a stand.

The institution has upheld our shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation. That commitment pertained to an essential objective of inter-communal co-operation and national unity, focused on equality of all people regardless of race and religion.

The judiciary has put aside its personal convictions and spoken up to defend the Constitution. It is time all of us do the same, regardless of our religious beliefs.- Mkini