Tuesday, January 5, 2016

Indira Gandhi case: Dissenting judge explains decision, suggests Chief Justice may have solution BY BOO SU-LYN AND IDA LIM



malaymail


The contentious Article 121 (1A) in the Federal Constitution, which prohibits civil courts from interfering with the Shariah courts, does not apply to administrative decisions made by state bodies including Islamic agencies, a judge said.


Justice Datuk Dr Hamid Sultan Abu Backer ― who was the dissenting judge in the Court of Appeal bench that recently upheld the unilateral conversion of M. Indira Gandhi’s three children to Islam ― noted that the “pendaftar Muallaf” or registrar of Muslim converts who had registered the children as Muslims, fell under the purview of the Perak Islamic Religious Department (JAIPk) director.


Hence, any administrative decision made by the registrar, whose powers are set out in the Administration of the Religion of Islam (Perak) Enactment 2004, is subject to judicial review and the civil court has jurisdiction to hear the matter, he said.


“Article 121 (1A) does not permit the civil courts to deal with matters within the jurisdiction of the Shariah Courts.


“However, it does not exclude the jurisdiction of the civil courts’ judicial review powers in the administrative decision of the state or its agencies and/or its officers. What the civil courts cannot do is to intervene in the lawful decision of the Shariah Courts made within its jurisdiction and not in excess of its jurisdiction,” Hamid Sultan wrote in his 74-page written judgment on the Indira Gandhi case that was sighted by Malay Mail Online.


In a 2-1 decision, the three-judge Court of Appeal panel ruled last month that the civil courts had no jurisdiction over the conversion of Indira’s children to Islam, which it said was solely the purview of the Shariah courts. Indira had secured in 2013 a Ipoh High Court order to quash the conversion of her children to Islam, who were converted by her Muslim ex-husband in their absence and without her knowledge.


Hamid Sultan said in his judgment that not all sections of the Administration of the Religion of Islam (Perak) Enactment are protected by Article 121 (1A) of the Federal Constitution, noting that the most relevant part of the state enactment to Article 121 (1A) is Part IV titled “Shariah Courts”. But that not all sections within Part IV are relevant to that constitutional provision, he said.


The Court of Appeal judge said it also followed that other parts and sections in the Enactment, which has a part on “conversion to the religion of Islam”, would not be relevant to Article 121 (1A) of the Federal Constitution either.


“The distinction is not one relating to apple and an orange but that of a marble and pumpkin; when it relates to public law relief,” said Hamid Sultan.


He said the Perak registrar’s certificate of conversion for Indira’s children had “nothing to do with the jurisdiction of the Shariah Court and/or decision of the Syariah Court as asserted in Article 121 (1A) of the Federal Constitution”.


The judge also said the Federal Constitution in Malaysia is supreme, noting that the executive, the legislature and the judiciary have taken an oath to protect citizens’ fundamental rights in the Federal Constitution.


But he noted that the three branches can only do so if they apply the rule of law relating to the supremacy of the Constitution.


“Ironically what has transpired in Malaysia is that some of the courts’ decisions are only based on constitutional supremacy and a large majority of the decision which affects the fundamental rights are based on parliamentary supremacy.


“Those important decisions which was based on the jurisprudence relating to parliamentary supremacy appears not to have inspired confidence in the judicial decision making process and the cause of convoluted jurisprudence inconsistent with the oath of office,” Hamid Sultan said.


According to the judge, parliamentary supremacy, as practised in England, means that the judiciary must carry out the will of Parliament and that the courts must give “great deference” to government policies.


Constitutional supremacy, on the other hand, means that Parliament must be guided by the Constitution and that judges are to prevent any breaches of the constitutional framework.


Hamid Sultan said the problem of the courts deciding based on parliamentary supremacy started with the 1988 case of the Malaysian government vs Lim Kit Siang, where the Supreme Court had ruled that a taxpayer has no locus standi to question government policies. The Supreme Court also said in a majority decision that it would not interfere with such policies.


“The decision had a damaging effect on all subsequent decisions relating to fundamental rights. For, it must be noted that the effect of Lim Kit Siang’s case in practical terms compromised the doctrine of accountability, transparency and good governance and the check and balance to control arbitrariness by public decision makers such as executive and legislature,” said Hamid Sultan, referring to the DAP parliamentary leader.


He argued that Shariah laws in Malaysia do not infringe on the right of non-Muslims, and that a just decision can be made if lawyers are learned in civil, criminal, constitutional and Shariah law and can balance the rights of parties with the Federal Constitution and the Rukun Negara.


“Such qualities in knowledge have become a rare breed in Malaysia. That is to say, if a person is an expert in Shariah law only and is not an expert in all fields of law, vice versa, then his version of jurisprudence will be of suspect,” said the judge.


Hamid Sultan noted the position of Shariah laws in all states is that the Islamic courts do not have the jurisdiction to decide on issues involving a Muslim and a non-Muslim, and added that common sense dictates “hybrid” cases should go to the civil courts.


He also highlighted the Chief Justice has the discretion to set up special courts under the civil court system to deal with Muslim and non-Muslim disputes.


“If some comfort need to be given to litigants in hybrid cases, it does not stop the CJ from directing special courts to hear Syariah matters between Muslims and non-Muslims with judges conversant in both the laws


“It also does not stop the CJ from liaising with the Attorney General to amend the Courts of Judicature Act to allow the Chief Syariah judge of the state or his representative to sit in civil courts with two other judges, one a Muslim and another a non-Muslim to reach a decision,” he said.


“A simple methodology as suggested above will promote racial harmony and respect for the Government and Government Agencies as well as provide satisfaction for litigant in the administration of justice in Malaysia and is a recipe to avoid adverse global and/or public perception,” he concluded.

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