G25 wholeheartedly applauds the courageous and excellent judgment of the Federal Court in the case of Indira Gandhi. The Federal Court has correctly overturned the majority judgment of the Court of Appeal and affirmed the judgment of the High Court. The Federal Court’s judgment, read out by Justice Tan Sri Zainun Ali, has ruled in favour of Ms. Indira Gandhi by holding that the purported unilateral conversions of her children to Islam by her ex-husband (who has converted to Islam) were unlawful and invalid by reason of the fact that her ex-husband and the Perak religious authority in purporting to carry out the conversions had contravened the provisions of the Administration of the Religion of Islam (Perak) Enactment 2004. The Federal Court also rules that the conversions were unconstitutional in that they contravened Article 12(4) of the Federal Constitution as the prior consent of Ms. Indira Gandhi, the mother of the children, had not been obtained. Departing from its earlier decision in the case of R. Subashini, the Federal Court has now correctly interpreted the word ‘parent’ in Article 12(4) to mean both the father and mother of the child where both parents are still alive.
The Federal Court in its landmark judgment has rightly seized the opportunity to clarify the limits of the jurisdiction of the Syariah Court. Such a laudable move by the Federal Court has long been overdue: for, with the introduction of Clause (1A) into Article 121 by way of a constitutional amendment in 1988, the limits of the jurisdiction of the Syariah Court have up till now been much misunderstood by some quarters – indeed, even by some Civil Court judges who in dealing in cases before them that had some Islamic element had erroneously declined jurisdiction in favour of the Syariah Court. Now, according to the Federal Court in its judgment, the jurisdiction of the Syariah Court is limited by the following:
The Syariah Court may not exercise the inherent judicial powers of the Civil Courts including the power of judicial review.
The Syariah Court’s jurisdiction is confined to the persons and subject matters listed in the State List.
The jurisdiction of the Syariah Court must be provided for under the relevant State legislation.
Clause (1A) does not constitute a blanket exclusion of the jurisdiction of Civil Courts whenever a matter relating to Islamic law arises. The inherent judicial power of Civil Courts in relation to judicial review and questions of constitutional or statutory interpretation are not and cannot be removed by the insertion of clause (1A).
We are heartened to note that the Federal Court in its judgment has not only accorded justice to Ms. Indira Gandhi but has also reaffirmed the following constitutional law principles of great importance:
(a) Under Article 121(1) of the Federal Constitution, judicial power is vested exclusively in the Civil High Courts. The jurisdiction and powers of the Courts cannot be confined to federal law. The Courts will continually and inevitably be engaged in the interpretation and enforcement of all laws that operate in this country and any other source of law recognised by our legal system.
(b) Judicial power, in particular, the power of judicial review is an essential feature of the basic structure of the Federal Constitution.
(c) Features in the basic structure of the Federal Constitution cannot be abrogated by Parliament by way of constitutional amendment.
The Federal Court judgment is a milestone in our constitutional law. Kudos to the members of the Federal Court panel, namely, -
Justice Tan Sri Zulkifli Ahmad Makinudin;
Justice Richard Malanjum;
Justice Tan Sri Zainun Ali;
Justice Abu Samah Nordin; and
Justice Tan Sri Ramly Ali.
The Malay Mail