Neither did the amendment confer judicial power on the Shariah Courts, it said in a landmark ruling in kindergarten teacher M Indira Gandhi’s appeal against the unilateral conversion of her children to Islam.
Justice Zainun Ali, who delivered the unanimous judgement, said more importantly, Parliament did not have the power to make any constitutional amendment to give such effect.
“It would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution,” she said.
The five-man bench chaired by Court of Appeal president Zulkefli Ahmad Makinudin allowed Indira’s appeal to nullify the conversion of her three children to Islam by her ex-husband, K Pathamanathan @ Muhammad Riduan Abdullah, in 2009.
Other members on the panel were justices Richard Malanjun, Abu Samah Nordin and Ramly Ali.
During the appeal hearing in late 2016, three questions were posed to the court:
– whether the civil court has the exclusive jurisdiction to review the actions of the Registrar of Muallafs or his agents in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004;
– whether a child from a civil marriage must comply with both Sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 before the conversion; and
– whether the mother and father must consent before a certificate of conversion can be issued to a child.
The constitutional amendment which removed the words “judicial power” from the text of Article 121 (1) came into effect on June 10, 1988.
Zainun today said the insertion of Article 121 (1A) did not remove the jurisdiction of the civil courts to review decisions of public authorities, or interpret the constitution or any legislations, state or federal.
“This is the case even in relation to legislation enacted for the administration of Muslim law,” she added.
She said Article 121 (1A) also did not exclude the civil courts from determining the constitutionality of state legislation to set up Shariah Courts.
“Further, Clause 121 (1A) does not prevent the civil courts from continuing to exercise jurisdiction in determining matters under federal law, notwithstanding the conversion of a party to Islam,” she said.
Zainun said the power of the civil courts to hear judicial review and interpret the constitution and other laws was to check against unlawful legislation and executive action.
She said in the present case, the civil courts had the jurisdiction to review the action of a public authority like the Registrar of Muallafs as he was acting on an enactment passed by the state legislature.
“This jurisdiction cannot be excluded from the civil courts and conferred upon the Shariah Courts by virtue of Article 121 (1A),” she said.