Just yesterday, the MACC caused widespread amusement when it declared that submitting fake medical certificates amounted to corruption. Radio station BFM 89.9 played up the story and scoffed at the MACC for its so called attempt to educate society on corruption when the biggest scandals on abuse of power and corruption are swept under the carpet. We are, of course, referring to 1MDB and the RM2.6 billion that went into the PM’s personal bank accounts.
It appears that silly statements and illogical arguments are no longer the monopoly of politicians.
The Malaysian judiciary, once highly respected for its reasoned judgements and for upholding the rule of law and constitutional supremacy, is adding to the confusion. Judges are making contradicting judgements that not only confuse us, but disrupt our social order.
Two years ago, M Indira Gandhi celebrated an Ipoh High Court ruling which declared as illegal the acts of her ex-husband who took away her children and converted them from Hinduism to Islam. But yesterday, the Court of Appeal, headed by Balia Yusof Wahi, held that the dispute must be decided by the syariah court, disregarding the fact that the parties in the dispute were not all Muslims. Judge Balia was supported by Judge Badariah Sahamid. The third judge, Hamid Sultan Abu Backer, dissented and warned that such a conflict of laws would not be settled as long as judges did not appreciate the rule of law and the supremacy of the constitution.
Nothing can describe Indira’s agony better than her own words. “I don’t understand legal jargon, but justice has been denied,” she said, referring to the fact that her daughter remains with her former husband despite her obtaining custody from the civil court. “When am I going to see her? I have been coming to the courts since 2009 and justice seems have eluded me.”
The two judges seem to be ignoring the fact that Indira’s marriage and the children of the marriage are governed by the Law Reform, Marriage and Divorce Act 1976. They have chosen to disregard the fact that she is Hindu and that it would be unfair to subject her to Syariah law. The civil court would be a more neutral forum for the disputing parties to air their grievances.
Judge Hamid’s words about the the need for judges to appreciate the rule of law and the supremacy of the constitution should be immortalised. Judges must be reminded of their oath of office to uphold and protect the Federal Constitution.
The fact that former Prime Minister Mahathir Mohamad came out in support of Kassim has prompted several legal commentators to suggest that Mahathir now realised the dangers of the amendment that his administration introduced in Article 121(1A) of the Federal Constitution.
“It is trite that in matters relating to fundamental and constitutional rights, the High Court exercise a supervisory role. It is the duty of the court to interpret the civil law and Syariah law harmoniously.
“Any law, whether it is federal or state Law, which is in breach of the Federal Constitution must be struck down when challenged and the federal or any state government and/or its agencies which apply the law wrongfully must be corrected through the judicial review process.”
While the Borders and Kassim Ahmad cases suggest that the judiciary can give us hope that it will be the last bastion of justice, the Indira Gandhi case has thrown us into greater uncertainty. So, where is justice?