The decision of the federal court in the Controversial Case of Conversion

The Federal Court had granted leave for the following questions of law :-

1.  Whether the High Court has the exclusive jurisdiction pursuant to sections 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1954 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004.

2.  Whether a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976 (“a civil marriage”) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child.

3. Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of that child.

 

JUDGMENT OF THE COURT

  1. The often misunderstood concept of Islamisation surrounding the issue of religious conversion of young children into the Islamic faith makes articulation of this issue important.

 

BACKGROUND OF THE APPEALS

   2.There are three appeals before this Court. They are:

  1. Civil Appeal 01(f)-17-06/2016 (A) (Appeal no. 17)
  2. Civil Appeal No 01(f)-18-06/2016 (A) (Appeal no. 18)
  3. Civil Appeal NO. 01(f)-19-06/2016 (A) Appeal no. 19)

 

  1. The Appellant in the appeals, Indira Gandhi a/p Mutho is appealing against the decision of the Court of Appeal dated 30 November 2015 allowing the appeals filed by the Respondents in Appeals no. 17, 18 and 19, respectively.

 

  1. The Court of Appeal set aside the decision of the High Court in allowing the Appellant’s application for judicial review for an order of certiorari to quash the certificates of conversion to Islam of the children in her marriage with Patmanathan A/L Krishnan, the Respondent in Appeal no. 19.

 

  1. In her application for judicial review, the Respondent husband was cited as the 6th Respondent while the Respondents in Appeal no. 17 (Director of the Islamic Religious Affairs Department of Perak, the Registrar of Muallafs and the Perak Government) and the Respondents in Appeal no. 18 (the 5 Ministry of Education and the Government of Malaysia) were respectively cited as the first to the fifth Respondents.

    6. The Federal Court had granted leave for the following questions of law :-

  1. Whether the High Court has the exclusive jurisdiction pursuant to sections 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1954 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004.
  2. Whether a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976 (“a civil marriage”) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child.
  3. Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of that child.

 

FACTS

 

  1. Patmanathan (‘the 6th Respondent’) and Indira Gandhi (‘the Appellant’) were married on 10 April 1993. The marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’). There were three children of the marriage, Tevi Darsiny, aged 12, Karan Dinish, aged 11 and the youngest, Prasana Diksa, who was 11 months old (at the time of filing of the Appellant’s application for judicial review).

 

  1. On 11 March 2009, the 6th Respondent converted to Islam. At the time of the 6th Respondent’s conversion, the two elder children were residing with the Appellant while the youngest child was with the 6th Respondent. On 8 April 2009, the 6th Respondent obtained an ex parte interim custody order for all the three children from the Syariah Court. He later obtained a permanent custody order on 29 September 2009.

 

  1. Sometime in April 2009, the Appellant received documents from the 6th Respondent showing that her three children had been converted to Islam on 2 April 2009 and that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam on her three children. The documents also showed that the Registrar of Muallaf had registered the children as Muslims.

 

  1. Aggrieved with the 6th Respondent’s action, on 9 June 2009, the Appellant filed an application for Judicial Review in the Ipoh High Court for an order of certiorari to quash the certificates of conversion to Islam of the children. The Appellant contended that the issuance of the certificates of conversion to Islam by 7 the Registrar of Muallafs was ultra vires and illegal. It contravened the provisions of sections 96 and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (the Perak Enactment), sections 5 and 11 of the Guardianship and Infants Act 1961 (the GIA) and Article 12(4) read together with Article 8 (2) of the Federal Constitution.

 

  1. In the meantime, the Appellant filed an application in the High Court of Ipoh for custody of the three children pursuant to section 88 of the LRA. On 11 March 2010, the High Court granted the Appellant the custody of the three children. The custody order also directed the 6th Respondent to deliver the youngest child, Prasana Diksa, to the Appellant immediately.

 

  1. The Appellant subsequently filed a petition for divorce on grounds of her husband’s conversion to Islam under section 51 of the LRA. The divorce was granted on 8 August 2012.

 

  1. We will deal firstly with the threshold question of jurisdiction. For ease of reference the first question is :- Whether the High Court has the exclusive jurisdiction pursuant to section 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment.

 

PROCEEDINGS IN THE COURTS BELOW

 

  1. At the High Court, the Respondents raised a preliminary objection on the High Court’s lack of jurisdiction to hear the Appellant’s judicial review application. The learned Judicial Commissioner (JC), Justice Lee Swee Seng characterised the application as a challenge on the constitutionality of the Respondent’s actions, in particular in relation to the fundamental liberties provisions in the Federal Constitution. The learned JC noted that whereas civil courts are creatures of the Constitution, syariah courts as creatures of State law do not have jurisdiction to determine the constitutionality of matters within its purview.

 

  1. It was held that Article 121(1A) of the Federal Constitution does not confer jurisdiction for constitutional interpretation on the syariah courts to the exclusion of the civil courts. The learned JC declared that the requirements of s.96 and 106 of the Perak Enactment must be complied with by the Registrar of Muallafs in issuing the Certificates of Conversion. Section101(2) which states that the certificates shall be conclusive proof of the fact stated therein, was  held not to oust the jurisdiction of the court where there is patent non-compliance with the statutory requirements. Accordingly, the learned JC found that the High Court had exclusive jurisdiction to hear the application.

 

  1. The High Court decision was reversed by a majority in the Court of Appeal. The majority rejected the learned JC’s approach in determining the constitutionality of the conversion process. The Court of Appeal held that the High Court had no power to question the decision of the Registrar of Muallafs or to consider the Registrar’s compliance with the statutory requirements of s.96 and 106 of the Perak Enactment. Reference was made to the powers of the Registrar in registering under section 100, and conclusiveness of the Certificates of Conversion, as proof of the facts started in s.101(2). The Court of Appeal took the position that the fact that a person has been registered in the Registrar’s of Muallafs as stated in the Certificates of Conversion is proof that the conversion process had been done to the satisfaction of the Registrar.

 

Submissions at the Federal Court

 

  1. Reviewing the historical background of the Syariah Courts in Malaysia, learned counsel for the Appellant submitted that Article 121 (1A) does not overrule the general jurisdiction of the High Courts, or enhance the jurisdiction of the Syariah Courts. It was argued that the purpose of the clause, was to prevent civil courts from intervening in lawful decisions made by the Syariah Court. Counsel characterised the subject matter in the present case as one of administrative law, namely whether the Registrar of Muallaffs had acted within the scope of his statutory powers in issuing the certificate of conversion. It was contended that the power of judicial review over the administrative actions of public authorities lies within the exclusive jurisdiction of the civil courts, and is inherent in the judicial power constitutionally vested therein.

 

  1. In contrast, the status of Syariah Courts, being creatures of State Legislatures under powers delineated by the Ninth Schedule in the Constitution, is akin to inferior tribunals.Counsel for the Appellant emphasised that the jurisdiction of Syariah Courts is confined to cases where all parties are Muslims, and cannot be exercised over the non-Muslim Appellant in this case. It was argued that conversion does not absolve a person from his obligations under the personal law to which he was formerly subject; in such cases the civil court retains jurisdiction.

 

  1. Common themes found their way in the submissions of the learned State Legal Adviser on behalf of the Director of the Islamic Religious Affairs Department of Perak, the Registrar of Muallafs and the Perak Government (the Respondents in Appeal No.17), the learned Senior Federal Counsel on behalf of the Ministry of Education and the Government of Malaysia (the Respondents in Appeal No. 18), and learned counsel for the 6th Respondent husband (the Respondent in Appeal No.19). It is the main contention of the Respondents that under Article 121 (1A), the High Court has no jurisdiction to hear matters within the jurisdiction of the Syariah Courts.

 

  1. The Respondents’ submissions may broadly be summarised as follows. In determining the jurisdiction of Syariah Courts, the subject matter approach is to be preferred. Conversion to Islam is characterised as a strictly religious matter. The Administration of the Religion of Islam (Perak) Enactment expressly confers jurisdiction upon the Syariah Court to declare the status of a Muslim; matters of Islamic law are also specially demarcated as falling under the Syariah Courts’ jurisdiction pursuant to the Ninth Schedule of the Federal Constitution. Since the subject matter does not lie within the High Court’s jurisdiction, it was submitted that the High Court cannot exercise its power to review the actions of the Registrar of Muallafs in the present case. If the Appellant is dissatisfied with the Registrar’s decision, the appropriate route would be to file a challenge in the Syariah Court.

 

Judicial Power of the High Courts

 

  1. The starting point in ascertaining jurisdiction is Article 121 of the Federal Constitution. The crux of the issue concerns the interpretation of both Articles 121 (1) and (1A) :-

 

Judicial Power of the Federation

 

21 (1). There shall be two High Courts of co-ordinate jurisdiction and status, namely –

  1. One in the States of Malaya, which shall be known as the High Court of Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di- Pertuan Agong may determine; and
  2. One in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
  3. Repealed), And such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

      (1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within a jurisdiction of the Syariah Courts.

 

BASIC STRUCTURE OF THE CONSTITUTION

 

  1. Before dealing with the heart of the matter in these appeals, a clear understanding of the foundation, content and effect of the basic structure of the constitution is in order.

 

Constitutional principles

 

  1. A constitution must be interpreted in light of its historical and philosophical context, as well as its fundamental underlying principles. As articulated by the Supreme Court of Canada in Reference re Senate Reform, 2014 SCC 32 (at [25]-[26]):- “The constitution implements a structure of government and must be understood by reference to ‘the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning …’ The rules of constitutional interpretation require that constitutional documents be interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts… Generally, constitutional interpretation must be informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law… These rules and principles of interpretation have led this Court to conclude that the Constitution should be viewed as having an ‘internal architecture’, or ‘basic constitutional structure’… The notion of architecture expresses the principles that ‘[t]he individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole’… In other words, the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in our interpretation understanding and application of the text.” (citation omitted) (Emphasis added)

 

  1. The foundational principles of a constitution shape its basic structure. In Canada, the Supreme Court recognized the rule of law and constitutionalism as fundamental principles underlying their constitution in Reference re Secession of Quebec, [1998] 2 SCR 217. The Court rejected the notion that the system is one of simple, majority rule (at [73]-[74]):- “An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons:

 

  1. A constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection.
  2. A constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.
  3. A constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.(Emphasis added)

 

  1. Pertinently, the Supreme Court of Canada took pains to emphasise the protection of minority rights as a principle inherent in the constitutional system. The court continued to elaborate as follows (at [80]):- “However, we highlight that even though those positions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasise rights that the protection of minority rights is itself an independent principle underlying our constitutional order.”

 

  1. Another principle which underlies constitutions based on the Westminster model, is the separation of powers between the branches of government. This was recognized in this country in earlier cases. In the Singapore High Court case of Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163, Chan Sek Keong CJ said:- …”Likewise under the Singapore Constitution, the sovereign power of Singapore is shared among the trinity of constitutional organs, viz, the legislature (comprising the President of Singapore and the Singapore Parliament), the Executive (the Singapore government) and the Judiciary (the Judges of the Supreme Court and the Subordinate Courts). The principle of separation of powers, whether conceived as a sharing or a division of sovereign power between three organs of state, is therefore part of the basic structure of the Singapore Constitution.”

 

The Role of the Judiciary

 

  1. Inherent in these foundational principles is the role of the judiciary as the ultimate arbiter of the lawfulness of state action. The power of the courts is a natural and necessary corollary of the rule of law. In many jurisdictions this was made clear. In Malaysia, in the seminal decision of the Federal Court in Pengarah Tanah Dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, Raja Azlan Shah Ag CJ (as his Royal Highness then was) expressed in a passage which has remained inviolable, that:- “… Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint, where it is wrongly exercised, it becomes the duty of the court to intervene. The courts are the only defence of the liberty of the subject against departmental aggression ….” (Emphasis added)

 

  1. Similar sentiments were also echoed by the Canadian Supreme Court in Trial Lawyer’s Association of British Columbia v British Columbia (Attorney General) 2014 SCC 59 at 39, referring to the provisions in the Constitution Act 1867 on the appointment of judges :“The section 96 judicial function and the rule of law are inextricably intertwined. As Lamer CJ stated in MacMillan Bloedel, “in the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act 1867, the provisional superior courts are the foundation of the rule of law itself” (para 37). The very rationale for the provision is said to be” the maintenance of the rule of law through the protection of the judicial role”: Provincial Judges Reference, at para 88. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s.96 courts, it is only natural that s.96 provide some degree of constitutional protection foraccess to justice.”

 

  1. It is notable that the central role of the judiciary to uphold the rule of law is accepted even in the UK, where the political system is one of parliamentary supremacy in the absence of a written constitution. In R (Miller) v. Secretary of State for Existing the European Union [2017] UKSC 5, the UK Supreme Court examined a series of historical statutes of “particular importance” and held at [42]: “The independence of the judiciary was formally recognised in these statutes. In the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts. That is why and how these proceedings are being decided.”
  2. The role of the judiciary in the interpretation of statutes was also recognized as fundamental by the House of Lords in the case of R (on the application of Jackson and others) v. Attorney General [2005] UKHL 56. The ambit of the court’s power in this regard is considered not subservient to but of equal importance as the sovereignty of Parliament (at [51]):- “This question of statutory interpretation is properly cognizable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognizance (jurisdiction) over its own affairs.”(Emphasis added)

 

  1. It bears emphasis that the judiciary’s exercise of power in accordance with its proper constitutional role does not in any way constitute judicial supremacy. As stated by the Court of Appeal in Singapore in Tan Seet Eng v. Attorney General & another matter [2015] SGCA 59 (at [90] and [106]):- “We began this judgment by observing that the specific responsibility for pronouncing on the legality of government actions falls on the Judiciary. It is appropriate at this juncture to parse this. To hold that this is so is not to place the Judiciary in an exalted or superior position relative to the other branches of the government. On the contrary, the Judiciary is one of the three co-equal branches of government. But though the branches of government are co-equal, this is so only in the sense that none is superior to any other while all are subject to the Constitution. Beyond this, it is a fact that each branch of government has separate and distinct responsibilities. In broad terms, the legislature has the power to make the laws of our land, and this power extends even to amending the foundation of our notification, the Constitution. The Executive has the power and the responsibility of governing the country within the framework of the laws established by the legislature. And the Judiciary has the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws. It is the nature of this latter responsibility that results in the Judiciary being tasked with the role of pronouncing on the legality of government actions.… In keeping with this, even for matters falling within the category of ‘high policy,’ the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty and arrives at in a legal manner. (De Smith’s Judicial Review at para 1-035). Indeed, this is apparent in Yong Vui Kong at [63] where Chong J commented that there would be a judicial remedy available if the procedures under clemency process had not been abided by. In such circumstances, the question of defence to the Executive’s discretion simply does not arise.” (emphasis added)
  2. On the same note, it is also worth stressing that the role of the judiciary in upholding constitutionalism and the rule of law is inno way inimical to democratic government. The Canadian Supreme Court held in Reference re Secession of Quebec (supra) (at [75] and [78]):-“In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit ‘the people’ in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and theessence of a constitutional democracy.… it might be objected, then, that constitutionalism is therefore incompatible with democratic governments. This would be an erroneous view. Constitutionalism facilitates – indeed, makes possible – a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.” (Emphasis added)

 

Significance of Basic Structure

 

  1. The basic structure of a constitution is ‘intrinsic to, and arises from, the very nature of a constitution.’ (see Calvin Liang and Sarah Shi, ‘The Constitution of Our Constitution, A Vindication of the Basic Structure Doctrine’ Singapore Law Gazette (August 2014) 12). The fundamental underlying principles and the role of the judiciary as outlined above form part of the basic structure of the constitution, being “something fundamental and essential to the political system that is established thereunder” (per Sundaresh Menon CJ in Yong Vui Kong v Public Prosecutor [2015] SG CA 11 [at [71]. It is well settled that features of the basic structure cannot be abrogated or removed by a constitutional amendment (see Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461).

 

  1. Further, as a feature intrinsic to and inherent in the constitutional order itself, these principles are accorded supreme status as against any inconsistent laws, in a political system based on constitutional supremacy. Article 4(1) of the Federal Constitution provides that the Constitution is ‘the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.’ This provision is in pari materia with Article 4 of the Singapore Constitution, which was analysed by Chan Sek Keong CJ in Mohammad Faizal (supra) (at [14]-[15]):- “The first fundamental difference is that the UK’s Westminster model is based on the supremacy of the UK Parliament, under which the UK parliament is supreme, with the result that the UK courts have no power to declare an Act of the UK parliament unconstitutional and, hence, null and void. In contrast, Singapore’s Westminster model is based on the supremacy of the Singapore Constitution, with the result that the Singapore courts may declare an Act of the Singapore parliament invalid for inconsistency with the Singapore Constitution and, hence, null and void. Article 4 of the Singapore Constitution expresses this constitutional principle in the following manner:- This Constitution is the supreme law of the Republic of Singapore and any law enacted by the legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. It should be noted that Article 4 of the Singapore Constitution states that any law inconsistent with this Constitution, as opposed to any law inconsistent with any provision of this Constitution is void. The specific form of words used in Article 4 reinforces the principle that the Singapore parliament may not enact a law, and the Singapore government may not do an act, which is inconsistent with the principle of separation of powers to the extent to which that principle is embodied in the Singapore Constitution.”

 

  1. In fact so intrinsic is the role of the Judiciary to the constitutional order that it has been characterised as an unalterable ‘political fact.’ The New Zealand Court of Appeal adopted this reasoning in Attorney-General v Taylor [2017] NZ CA 215 (at [47] & [56]-[57]), quoting from Professor Sir William Wade (see ‘The Basis of Legal Sovereignty’ [1955]CLJ 172):- “Nor do the higher courts owe their common law judicial authority to Parliament. As Professor Joseph observes no legislation conferred their general and inherent powers of adjudication. ‘The superior courts acquired their common law powers of adjudication just as Parliament acquired its coordinate power of legislation – through historical evolution and adjustment without formal grant of the law.’ … When issues arise affecting the legislature’s legal authority, recourse must be had to the courts, both for an authoritative answer and as a practical necessity. To quote Wade & Forsyth: ‘Even under the British system of undiluted sovereignty, the last word on any question of law rests with the courts.’ This means, as Wade explained elsewhere, that: ‘…it is always for the courts, in the last resort, to say what is a valid Act of Parliament; and that the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts. It is simply a political fact’.”

 

  1. The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 56) has put beyond a shadow of doubt that judicial power is vested exclusively in the High Courts by virtue of Article 121(1). Judicial independence and the separation of powers are recognised as features in the basic structure of the Constitution. The inherent judicial power of the civil courts under Article 121 (1) is inextricably intertwined with their constitutional role as a check and balance mechanism:- “[88] The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers. [89] This is essentially the basis upon which rests the edifice of judicial power. [90] The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework. [91] The concepts above have been juxtaposed time and again in our judicial determination of issues in judicial reviews. Thus an effective check and balance mechanism is in place to ensure that the Executive and the Legislature act within their constitutional limits and that they uphold the rule of law. The Malaysian apex court had prescribed that the powers of the Executive and the Legislature are limited by the Constitution and that the judiciary acts as a bulwark of the Constitution in ensuring that the powers of the Executive and the Legislature are to be kept within their intended limit (see Pengarah Tanah Dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135).”

 

  1. The notion of the court’s role, and the power of judicial review as the bulwark against unconstitutional legislation or unlawful action is echoed in the pithy remarks of Salleh Abas LP in Lim Kit Siang v. Dato’ Seri Dr. Mahathir Mohamed [1987] 1 MLJ383 (at 386-387):-“The courts have a constitutional function to perform and they are the guardians of the constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review – a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both. The courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.”

 

  1. That judicial power is vested exclusively in the judiciary is implicit in the very structure of a Westminster model constitution itself, whether or not such vesting is expressly stated (Hinds v The Queen [1997] AC 195 (at 213)). Referring to the provisions on the appointment and removal of judges in the Constitution of Ceylon, the Privy Council held in Liyanage v. The Queen [1967] 1 AC 259 (at 287):- “Those provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature.”

 

JUDICIAL REVIEW

 

  1. In the First Question, the Appellant is challenging the administrative power exercised by the Registrar of Muallafs under the Perak Enactment with regard to the registration and issuance of the Certificates of conversion of the three children. It is important that this is emphasised. That the Appellant in the question posed is not questioning the conversion itself but the process and legality thereof. The issue to consider is whether the Registrar acted with fidelity to its empowering statute in arriving at his decision; and in answering this question, is there need to exhort to intensive forensic study of the same, and whether a more nuanced approach can be taken.

 

  1. Section 25 and paragraph 1 to the Schedule of the Courts of Judicature Act 1964 (the CJA) and Order 53 of the Rules of Court 2012 confer jurisdiction on the High Courts to exercise supervisory powers. The Syariah Courts are not conferred with the power to review administrative decisions of the authorities.

 

  1. Subsection 25(2) of the CJA reads:- (2) Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule. Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. Paragraph 1 to the Schedule of the CJA reads: Prerogative writs
  2. Power to issue to any person or authority directions, orders or writs including writs of the nature of habeas corpus, mandamus, prohibition, quo warran to and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.

 

  1. In particular, the power of judicial review is essential to the constitutional role of the courts, and inherent in the basic structure of the Constitution. It cannot be abrogated or altered by Parliament by way of a constitutional amendment. In the landmark case of Kesavananda Bharti (supra) the Supreme Court of India found the power of judicial review to be indispensable in a Constitution that is federal in character:- “This power of judicial review is of paramount importance in a Federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process ….. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. Parliament cannot expand its amending powers by way of a constitutional amendment, so as to allow incursions into the basic structure of the constitution and to exclude judicial review.

 

  1. In Minerva Mills Ltd v. State of Kerala 1980 AIR 1789, such an amendment was held to be invalid as a “transparent case of transgression of the limitations on the amending power.” The Indian Supreme Court articulated the central importance of judicial review in robust terms worth reproducing in full:- “The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution … But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub-version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.” (Emphasis added)

 

  1. Indeed even the absence of a written constitution in the United ingdom has not deterred the House of Lords from observing the importance of judicial review as a constitutional fundamental. Per Lord Steyn in R (on the application of Jackson and others) v Attorney General [2005] UK HL 56:- “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.” Significance of Judicial Review as part of the basic structure

 

  1. The significance of the exclusive vesting of judicial power in the judiciary, and the vital role of judicial review in the basic structure of the constitution, is twofold. First, judicial power cannot be removed from the civil courts. The jurisdiction of the High Courts cannot be truncated or infringed. Therefore, even if an administrative decision is declared to be final by a governing statute, an aggrieved party is not barred from resorting to the supervisory jurisdiction of the court. The existence of a finality clause merely bars an appeal to be filed by an aggrieved party.

 

  1. In Liyanage (supra), the issue before the Privy Council was the validity of an Act of Parliament which widened the class of offences triable by judges nominated by the Minister of Justice and removed the judges’ discretion in terms of sentencing. The Privy Council held that the Act contravened the Constitution of Ceylon in usurping the judicial power of the judicature. Lord Pearce elaborated as follows (at 291-292):- “If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.” (Emphasis added)

 

  1. Secondly, judicial power cannot be conferred on any other body whose members do not enjoy the same level of constitutional protection as civil court judges do to ensure their independence. ‘Parliament cannot just declare formally that a new court is a superior court or shares the rank of being at the apex of the judicial hierarchy; the test is substantive, requiring an examination of the composition and powers of the new court’ (see Semenyih Jaya (supra) and also Thio Li-Ann, A Treatise on Singapore Constitutional Law (2012 : Singapore, Academy Publishing) at 10.054).

 

  1. Both Attorney-General for Australia v The Queen and the Boilmakers’ Society of Australia and ors [1957] AC 288 and Hinds v. The Queen [1977] AC 195 concerned the creation of new courts to exercise judicial functions. In Attorney-General for Australia (supra), the Commonwealth Court of Conciliation and Arbitration was established pursuant to an act of Parliament and conferred with arbitral and judicial functions. The Privy Council held that the act was in contravention of the Constitution of the Commonwealth of Australia. As forcefully elucidated by Viscount Simmonds (at 313-314):- “… it would make a mockery of the Constitution to establish a body of persons for the exercise of non-judicial functions, to call that body a court and upon the footing that it is a court vest in it judicial power. In Alexander’s case, which has already been referred to, Griffith C.J. once and for all established this proposition in words that have not perhaps always been sufficiently regarded: ‘it is impossible,’ he said, ‘under the Constitution to confer such functions (i.e. judicial functions) upon anybody other than a court, nor can the difficulty be avoided by designing a body, which is not in its essential character a court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective.’ And in the same case the words came from Barton J.5: ‘Whether persons were judges, whether tribunals were courts, and whether they exercised what is now called judicial power, depended and depends on substance and not on mere name.”(Emphasis added)

 

  1. In Hinds (supra), the Privy Council held that the Constitution of Jamaica did not permit Parliament to vest in the Gun Court, composed of members of the lower judiciary, jurisdiction characteristic of a Supreme Court. The Privy Council affirmed that the test for the constitutionality of such laws does not depend on the label of the purported court, but its substance. The nature of the jurisdiction, the method of appointment, and the security of tenure for the judges who are to compose the new court must be regarded. Lord Diplock warned of the consequences if the jurisdiction of the Supreme Court could be transferred to other courts which do not adhere to the constitutional safeguards for independence:- “If, as contended by the Attorney-General, the words italicized above in section 97(1) entitled Parliament by an ordinary law to strip the Supreme Court of all jurisdiction in civil and criminal cases other than that expressly conferred upon it by section 25 and section 44, what would be left would be a court of such limited jurisdiction that the label ‘Supreme Court’ would be a false description. So too if all its jurisdiction (with those two exceptions) were exercisable concurrently by other courts composed of members of the lower judiciary. But more important, for this is the substance of the matter, the individual citizen could be deprived of the safeguards, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts.”.

 

  1. The principle that judicial power may only be vested in courts, safeguarded by constitutional provisions to ensure judicial independence, was also recognized in Singapore. Chan Sek 32 Keong CJ held in Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163 (at [17]):- “… the specific wording used in this Article [93 of the Singapore Constitution] has the effect of vesting the judicial power of Singapore exclusively in the Supreme Court and the Subordinate Courts, and not in any entity which is not a ‘court’ being, at common law, an entity with certain characteristics. The reference to ‘court’, in Article 93 would include any statutory body or tribunal having the characteristics of a court. All Commonwealth Constitutions appear to follow this practice of vesting the judicial power exclusively in the courts….In the Singapore context, the exclusivity of the judicial power is safeguarded by the provisions in Part VIII of the Singapore Constitution, which are designed to secure the independence of our judiciary.”

 

  1. The conferment of judicial functions on bodies other than courts, thus understood, is an incursion into the judicial power of the Federation. As colourfully described by Abdoolcader SCJ in Public Prosecutor v. Dato’ Yap Peng [1987] 2 MLJ 311 :- “…any other view would ex necessitate rei result in relegating the provisions of Article 121(1) vesting the judicial power of the Federation in the curial entities specified to no more than a teasing illusion, like a munificent bequest in a pauper’s will.”

 

   52. It would be instructive to now distill the principles as have been illustrated above.

  1. 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.
  2. Judicial power in particular the power of judicial review, is an essential feature of the basic structure of the Constitution.
  3. Features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment.
  4. Judicial power may not be removed from the High Courts.
  5. Judicial power may not be conferred upon bodies other than the High Courts, unless such bodies comply with the safeguards provided in Part IX of the Constitution to ensure their independence.

STATUS OF SYARIAH COURTS

 

  1. By way of comparison, in as much as the Civil Courts are ensconsed within the Constitutional framework, Syariah Courts are as yet non-existent, until such time when the State Legislature makes law to establish them, pursuant to the powers given it under item 1 of the List II (State List) in the Ninth Schedule of the Constitution. In other words, the status of Syariah Courts is dependent on the State Legislature. As the Federal Court expressed in Latifah Mat Zin v. Rosmawati bt. Shariban & Anor [2007] 5 MLJ 101 (at [32] –[33]):- “…. The Legislature of a State may make law to set up or constitute the Syariah Courts in the State. Until such law is made such courts do not exist. The position is different from the case of the Civil High Courts, the Court of Appeal and the Federal Court. In the case of those civil courts, there is a whole Part in the Constitution (Part IX) with the title ‘the Judiciary’. So the civil High Courts, the Court of Appeal and the Federal Court are established by the Constitution itself. But, that is not the case with the Syariah Courts. A Syariah Court in a state is established or comes into being only when the Legislature of the State makes law to establish it, pursuant to the powers given to it by item 1 of the State List. In fact the position of the Syariah Courts, in this respect, is similar to the Sessions Courts and the Magistrates’ Courts. In respect of the last two mentioned courts, which the Constitution call ‘inferior courts,’ Article 121(1) merely says, omitting the irrelevant parts:- 121(1) There shall be …. such inferior courts as may be provided by federal law …..” (Emphasis added)

 

  1. Article 74 of the Federal Constitution confers powers on the legislature of a state to make laws, with respect to any of the matters enumerated in the State List or the Concurrent List. Of relevance to the present appeals is item 1 of the State List, which reads as follows: “Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic Law and personal and family law of persons professing the religion of Islam, including the Islamic Law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions, and non-charitable trusts; Wakafs and the definition and regulation of charitable and religions trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State: Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islamic against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah Courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”(Emphasis added)

 

  1. The jurisdiction of Syariah Courts must be provided for by the State legislature within the limits of item 1; the courts do not have automatic jurisdiction over all the matters mentioned (see Latifah [43]), in that its jurisdiction must be expressly conferred by state legislations. In other words, the State must claim ownership over the subject matters that fall within the jurisdiction of the syariah courts by providing for it expressly in its legislation; because otherwise, the syariah courts could be excluded from deciding on a subject matter which falls within Item 1 of List II (State List) in the Ninth Schedule to the Federal Constitution. This is an important point which in the past had affected the full effect of the Syariah Court’s power when there is no express and clear provision enacted in the State Enactment. A case in point is Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489. In that case, the Federal Court held that in the absence of any express provision (in the then Kedah Administration of Muslim Law Enactment 1962 conferring jurisdiction on the Syariah Court to decide on questions of apostasy), the Syariah Court has jurisdiction by implication; The court held that this is to be inferred from the language of the relevant provisions of the State Enactments with regard to the Conversion of Islam. (Emphasis added)

 

  1. Speaking through Mohd Dzaiddin FCJ (as he then was) in Soon Singh (supra), his Lordship said at [ page 501] : “From the analysis of the State Enactments, it is clear that all State Enactments and the Federal Territories Act contain express provisions vesting the syariah courts with jurisdiction to deal with conversion to Islam. On the other hand, only some State Enactments expressly confer jurisdiction on the syariah courts to deal with conversion out of Islam. In this regard, we share the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur p 7 that ‘clear provisions should be incorporated in all State Enactments to avoid difficulties of interpretation by the civil courts,’ particularly in view of the new cl (1A) of art 121 of the Constitution which as from 10 June 1988 had taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. Be that as it may, in our opinion, the jurisdiction of the syariah courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam.” (Emphasis added)

 

  1. The above view was approved in Latifah Mat Zin (supra). The jurisdiction of the syariah courts to determine a subject matter of a dispute must be expressly conferred by the state legislation.

 

  1. Coming back to the present appeals, the jurisdiction of the Syariah Court is expressed under section 50(3)(b) of the Administration of the Religion of Islam (Perak) Enactment (Perak Enactment):- (3) The Syariah High Courts shall –

(a) …..

(b) in its civil jurisdiction hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the actions and proceedings relate to – ….. …..

(x) a declaration that a person is no longer a Muslim

(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death; and Thus in the present appeals the question is whether there is an express provision in the Perak Enactment conferring jurisdiction on the Syariah Court to determine the validity of a person’s conversion to Islam.

 

  1. The Court of Appeal, by majority answered this issue in the affirmative. It held that such powers are derived from the provisions of sub-ss 50(3)(b)(x) and (xi) of the Perak Enactment. It held at [37] that:- “Deliberating further on the issue of the jurisdiction of the Syariah Court, one has to look in the provisions of s 50 of the Perak Enactment. Specifically, sub-ss (3)(b)(x) and (xi) of s 50 confers jurisdiction on the Syariah High Court. A plain reading of the aforesaid provisions puts it beyond doubt that the power to decide the status of a Muslim person is within the exclusive jurisdiction of the Syariah High Court. The order of the High Court declaring that the conversion is null and void is a transgression of s 50(3)(b)(x) of the above said provision.”

 

  1. Is this observation correct? Undoubtedly, section 50 of the Perak Enactment is viewed as a specific provision, expressly conferring jurisdiction on the Syariah Courts. It contains a list of subject matter that can be brought before the Syariah Courts.

 

  1. However, our view is that section 50(3)(b)(x) is not applicable to the facts of the present appeals. As is explicit, section 50(3)(b)(x) specifically confers jurisdiction on the Syariah Courts to issue a declaration that “a person is no longer Muslim”. This would be applicable in a case where a person renounces his Islamic faith. But the issue in the present appeals concerns the validity of the certificates of conversion issued by the Registrar of Muallaf in respect of the children’s conversion to Islam. If a finding is made by a court that a certificate (issued in respect of a person’s conversion to Islam) is invalid, it can only mean that the said person has never at any time been a Muslim. Thus the question of him being ‘no longer a Muslim’ does not arise. (Emphasis added)

 

  1. It is observed that, save for the determination of the faith of a deceased person (section 50(3)(b)(xi) of the Perak Enactment), nowhere is there any express provision in section 50(3)(b) which confers jurisdiction on the Syariah Court to determine the validity of a person’s conversion to Islam. Thus, the majority decision of the Court of Appeal had misdirected itself on the construction of section 50(3)(b) of the Perak Enactment. (Emphasis added)

 

SYARIAH COURT JUDGES

 

  1. Syariah Court Judges are appointed by the Rulers of the respective state after consultation with the relevant state religious council. Notably, Syariah Courts are not constituted in accordance with the provisions of Part IX of the Federal Constitutions entitled “The Judiciary.” The constitutional safeguards for judicial independence, including the mechanism for the qualifications, appointment, removal, security of tenure and remuneration of judges, do not apply in respect of Syariah Courts.

 

  1. It is evident from the marked differences in the establishment and constitution of the civil and Syariah Courts that the two courts operate on a different footing altogether. (as was described in Subashini a/p Rajasingam v. Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147 [at 23]). Thus the perception that both courts (civil courts and syariah courts) should exercise a mutually reciprocal policy of non-interference (see Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara, Malaysia & Anor [1999] 2 MLJ 241 at 246) may be somewhat misconceived and premised on an erroneous understanding of the constitutional framework in Malaysia.

 

  1. Clearly then, both clauses (1) and (1A) of Article 121 of the Federal Constitution illustrate the respective regimes in which each court operates. Thus issues of jurisdiction and conferment of powers in the civil courts and the syariah courts are clearly drawn. What they (clauses (1) and (1A) Article 121 of the Federal Constitution) illustrate is that, both the civil and syariah courts co-exist in their respective spheres, even if they are dissimilar in the extent of their powers and jurisdiction, in that the civil courts are possessed of powers, fundamental and intrinsic, as outlined in the Federal Constitution.

 

  1. In this it is emphasised that, if the relief sought by a plaintiff is in the nature of the “inherent powers” of the civil court (for example judicial review) or if it involves constitutional issues or interpretation of the law, then the civil courts would be seised with jurisdiction to determine the issue, regardless of its subject matter and especially if it comes within the scope and ambit of judicial powers as outlined above.

 

Limits on Jurisdiction of Syariah Court

  67. The jurisdiction of the Syariah Court is limited by the following:-

  1. It may not exercise the inherent judicial powers of the Civil Courts including the power of Judicial review;
  2. It is confined to the persons and subject matters listed in the State List; and
  3. It must be provided for under the relevant state legislation.

 

  1. It is not open for the Syariah Courts to enlarge their own jurisdiction by agreements: “it is a fundamental principle that no consent or acquiescence can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction” (Federal Hotel Sdn Bhd v. National Union of Hotel, Bar & Restaurant Workers [1983] 1 MLJ 175).

 

  1. Where the subject matter is within the purview of the Syariah Court but the party appearing before it is not, the matter cannot be brought before the Syariah Court. It is trite that the Syariah Court has no jurisdiction over non-Muslim parties and non- Muslim parties have no locus before the Syariah Court. The conundrum presented itself when one of the parties being a non-Muslim was highlighted in Latifah (supra).:- “…. If one of the parties is not a Muslim such an application to the Syariah Court cannot be made. If the non-Muslim party is the would-be Plaintiff, he is unable even to commence proceedings in the Syariah Court. If the non-Muslim party is the would-be defendant, he would not be able to appear to put up his defence.”

 

  1. Conversely, where the party appearing before the Syariah Court is Muslim but the subject matter is not within the exclusive purview of the court, the Syariah Court likewise has no jurisdiction over the matter. In Sukma Darmawan (supra), the Appellant was convicted by a civil court for sodomy, an offence under both federal and syariah law. The Appellant contended that he ought to have been tried by the Syariah Court, since the parties involved were Muslims and the offence was triable by the Syariah Court. The Federal Court rejected the Appellant’s contention. In view of the jurisdiction conferred by law upon civil courts to try Penal Code Offences, to exclude the jurisdiction of civil courts because the accused is a Muslim would lead to “grave inconvenience and absurd result.”

 

  1. Islam is often understood as an all-embracing concept, consisting of ‘not only the ritualistic aspect but also a comprehensive system of life.’ In this vein, it has been suggested that the dichotomy between the private and public aspects of Islam is likely to give rise to legal difficulties (see Azahar Mohamed FCJ, “The Impact of Parallel Legal Systems on Fundamental Liberties in Multi-Religious Societies” Journal of the Malaysian Judiciary July [2016] JMJ 57). In fact, this dichotomy has long been resolved by the Federal Court in Che Omar Che Soh v. Public Prosecutor [1988] 2 MLJ 55. After tracing the history of British intervention in the Malay States, Salleh Abas LP summarised the notion of Islam as understood by the framers of the Constitution :- “…. The religion of Islam became separated into two separate aspects, viz the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty … By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat …. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.”

 

  1. It is clear therefore that the jurisdiction of the Syariah Courts, in so far as the operation of Islamic law is concerned, is confined to the private aspect and does not extend to its public one. Ultimately the subject matter is one of personal rather than constitutional law; “constitutional law requires that the jurisdiction of the ordinary courts to rule finally on matters of legality should be preserved.” (see A Harding, Law, Government and the Constitution in Malaysia (Kuala Lumpur : Malayan Law Journal, [1966] at 137). Interpretation of Article 121 (1A) 73. Thus we come to the crux of the matter at hand. As the issue in this case concerns the interpretation of Article 121(1A), in particular whether the clause has the effect of granting exclusive jurisdiction on the Syariah Court in all matters of Islamic Law including those relating to judicial review, a close scrutiny of the same is in order.

 

  1. In this regard, the Canadian approach offers a useful guide. A good starting point would be to take the position that Article121 (1A) must not be interpreted in isolation, but read together with other provisions such as Article 121(1) and against the backdrop of the principles underpinning the Constitution. As has been illustrated, civil and syariah courts are distinct in nature and status: the former are established under the Federal Constitution and vested with inherent judicial powers; whereas the latter are creatures of state legislation under the State List, and akin to inferior tribunals.

 

  1. Parallels may be drawn with the scheme in Canada, where section 96 provides for the appointment of judges to the courts of general jurisdiction. Section 92(14) allows provincial legislatures exclusively to make laws in respect of the administration of justice in the provinces. The ambit and limits of section 92(14) were considered by the Supreme Court in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 (at [25]-[27]):- “First, particular constitutional grants of power must be read together with other grants of power so that the constitution operates as an internally consistent harmonions whole. Thus section 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but withrespect to other power conferred by the Constitution. In this case, this requires us to consider s.96 of the Constitution Act, 1867. Second, the interpretation of s.92(14) must be consistent not only with other express terms of the Constitution, but with requirements that ‘flow by necessary implication from those terms:’ British Columbia v. Imperial Tobacco Canada Ltd 2005 SCC 49, [2005] 2 SCR 473 at para 66, per Major J. As this Court has recently stated, ‘the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding and application of the text;’ Reference re Senate Reforms 2014 SCC 32 [2014] 1 S.C.R. 704 para 26. It follows that in determining the power conferred on the province over the administration of justice, including the imposition of hearing fees, by s.92(14), the court must consider not only the written words of that provision, but how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text.” (Emphasis added)

The significance of judicial review as part of basic structure as outlined in the previous paragraphs above are similarly countenanced in Canada, in that:-

  1. Judicial power cannot be removed from the civil courts; 
  2. Judicial power cannot be conferred on another body which does not enjoy the same level of constitutional protection.

 

  1. In fact Canadian courts have developed a two-part test In determining the constitutionality of an exclusive grant of jurisdiction to provincially-created court or tribunal. The test was outlined by the Supreme Court in MacMillan Bloedel Ltd v. Simpson [1995] 4 SCR 725 (at [9]):- “…I find that our jurisprudence on this question mandates a two-part analysis. After reviewing our s.96 jurisprudence, therefore, I will first consider whether this grant of jurisdiction can be made and next consider whether the superior court’s jurisdiction can be ousted. The first inquiry involves examining the nature of the contempt power; the second necessitates elaboration of the inherent jurisdiction of superior courts and recognition of their importance to our constitutional structure.”

  1. We will now elaborate on the first stage.

 

STAGE 1 : Grant of Jurisdiction to inferior court

The jurisdiction of a superior court cannot be vested in a body not constituted in accordance with the provisions protecting the independence of its judges. In Toronto Corporation v. York Corporation [1938] AC 415, the Privy Council considered whether the jurisdiction of a superior court can validly be vested in the Ontario Municipal Board, a creature of provincial legislation. Lord Atkin held (at 425- 426):- The first question touches a matter of first importance to the people of Canada. While legislative power in relation to the constitution, maintenance and organization of Provincial Courts of Civil Jurisdiction, including procedure in civil matters, is confided to the Province, the independence of the judges is protected by provisions that the judges of the Superior, District, and County Courts shall be appointed by the Governor-General ( s. 96 of the British North America Act, 1867 ), that the judges of the Superior Courts shall hold office during good behaviour ( s. 99 ), and that the salaries of the judges of the Superior, District, and County Courts shall be fixed and provided by the Parliament of Canada (s. 100 ). These are three principal pillars in the temple of justice, and they are not to be undermined. Is, then, the Municipal Board of Ontario a Superior Court, or a tribunal analogous thereto? If it is, inasmuch as the Act of 1932 which sets it up observes none of the provisions of the sections above referred to, it must be invalidly constituted. (Emphasis added)

 

  1. The Privy Council clarified that an administrative body may be validly constituted for the purposes of administrative functions, but cannot receive judicial authority, but may nevertheless be validly constituted for the purposes of administrative functions (at 427):-“It is difficult to avoid the conclusion that whatever be the definition given to Court of Justice, or judicial power, the sections in question do purport to clothe the Board with functions of a Court, and to vest in it judicial powers. But in making that assumption, their Lordships are not prepared to accept the further proposition that the Board is therefore for all purposes invalidly constituted. It is primarily an administrative body ; so far as legislation has purported to give it judicial authority that attempt must fail; It is not validly constituted to receive judicial authority so far, as the Act purports to constitute the Board a Court of Justice analogous to a Superior, District or Country Court it is pro tan to invalid ; not because the Board is invalidly constituted, for as an administrative body its constitution is within the Provincial powers : nor because the Province cannot give the judicial powers in question to any court, for to a court complying with the requirements of ss 96, 99 and 100 of the B.N.A. Act the Province may entrust such judicial duties as it thinks fit; but because to entrust these duties to an administrative Board
  2. appointed by the Province would be to entrust them to a body not qualified to exercise them by reason of the sections referred to. The result is that such parts of the Act as purport to vest in the Board the functions of a Court have no effect.”(Emphasis added)

 

  1. A similar approach was adopted in Singapore. In Mohammed Faizal (supra) (at [17]) the High Court held that:- “Although Article 93 of the Singapore Constitution sets out two different sources of judicial power, what is important to note for present purposes is that the specific wording used in this Article has the effect of vesting the judicial power of Singapore exclusively in the Supreme Court and the Subordinate Courts and not in any entity which is not a ‘court’ being, at common law, an entity with certain characteristics. The reference to\ “court” in Article 93 would include any statutory body or tribunal having the characteristics of a court. All Commonwealth Constitutions appear to follow this practice of vesting the judicial power exclusively in the courts. Reference may be made to the decision of the Privy Council in Hinds … In the Singapore context, the exclusivity of the judicial power is safeguarded by the provisions in Part VIII of the Singapore Constitution which are designed to secure the independence of our judiciary.” (Emphasis added)

 

STAGE 2 : Ousting of core jurisdiction of Superior Court

 

  1. The core jurisdiction of the Superior Courts cannot be removed. (MacMillan Bloedel (supra) at ([13]):- “Essential historic functions of superior courts cannot be removed from those courts and granted to other adjudicative bodies to meet social policy goals if the resulting transfer contravenes our Constitution.”

 

  1. In stage 2 of the analysis, the court must first consider the contents of the ‘core’ or ‘inherent’ jurisdiction of superior courts. Noting the historic basis of the Canadian system in the English judicial system, the Supreme Court in MacMillan Bloedel found that the superior courts of general jurisdiction are as much the cornerstone of the judicial system in Canada as it is in England. The Court expressed strong approval for the elucidation of ‘inherent jurisdiction’ 1 H Jacob, ‘The inherent jurisdiction of the Court’ (1970); 23 Current Legal Problem. (at [29]); “Regarding the basis of inherent jurisdiction Jacob states (at p.27): ”…. The jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called ‘inherent.’ This description has been criticized as being ‘metaphysical’ [cite omitted] but I think nevertheless that it is apt, to describe the quality of this jurisdiction. For the essential character of a superior court of law necessarily involves that it be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very lifeblood, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. While inherent jurisdiction may be difficult to define, it is of paramount importance to the existence of a superior court. The full range of powers which comprise the inherent jurisdiction of a superior court are, together, its ‘essential character’ or ‘immanent attribute.’ To remove any part of this core emasculates the court, making it something other than a superior court.”(Emphasis added)

 

  1. Thus laws impinging on or transferring out the core jurisdiction of superior courts have been held unconstitutional in a number 51 of cases. These cases are helpfully summarized by in Trial Lawyers Association of British Columbia (at [33]-[34]):-“The jurisprudence under s.96 supports this conclusion. The cases decided under s.96 have been concerned either with legislation that purports to transfer an aspect of the core jurisdiction of the Superior Court to another decision-making body or with privative clauses that would bar judicial review : Re Residential Tenancies Act, 1979 [1981] 1 S.C.R. 714 MacMillan Bloedel; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. The thread throughout these cases is that laws may impinge on the core jurisdiction of the Superior Courts by denying access to the powers traditionally exercised by those courts. In Residential Tenancies, the law at issue unconstitutionally denied access to the Superior Courts, by requiring that a certain class of cases be decided by an administrative tribunal. In Crevier, the law at issue unconstitutionally denied access to the Superior Courts by imposing a privative clause excluding the supervisory jurisdiction of Superior Courts. In MacMillan Bloedel, the legislation at issue unconstitutionally barred access to the superior courts for a segment of society – young persons – by conferring an exclusive power on youth courts to try youth for contempt in the face of superior courts. This court, per Lamer CJ, relied on Crevier, concluding that “[it] establishes …. that powers which are ‘hallmarks of Superior Courts’ cannot be removed from those courts” (MacMillan Bloedel at para 35).” (Emphasis added)
  1. Thus based on the principles distilled from the above discussion, the effect of Article 121(1A) in the Malaysian context can be outlined as follows:-
  2. The Federal Constitution is premised on certain underlying principles. In a Westminster model Constitution, these principles include the separation of powers, the rule of law, and the protection of minorities.
  3. These principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed.
  4. The role of the civil courts as established by virtue of Article 121 is fundamental to these principles. The judicial power of the civil courts is inherent in the basic structure of the Constitution.
  5. Clause (1A) of Article 121 of the Federal Constitution recognises the power of the Syariah Courts when it exercises its power within jurisdiction.
  6. Article 121 (1A) must be interpreted against the background of the foundational principles and other provisions in the Constitution.
  7. The Canadian two-stage test may be applied to determine whether Article 121 (1A) can have the effect of granting jurisdiction to the Syariah Courts in judicial review applications to the exclusion of the civil courts :- a) Applying stage 1 of the test, judicial power cannot be vested in the Syariah Courts, because such courts are not constituted as a “superior court” in accordance with the constitutional provisions safeguarding the independence of judges in Part IX. b) Applying stage 2 of the test, judicial power cannot be removed from the civil courts, because such powers are part of the core or inherent jurisdiction of the civil courts.
  8. The present appeals arose from an application for judicial review of the administrative actions of an executive body (the Registrar of Muallafs) in exercise of its statutory powers (under the Perak Enactment). Regardless of the label that may be applied to the subject matter, the power to review the lawfulness of executive action rests solely with the civil courts.

 

  1. Therefore, viewed in its proper constitutional context, the effect of Article 121 (1A) on the jurisdiction of the civil courts is apparent. Article 121 (1A) should not be dismembered and then interpreted literally and in isolation of, but construed together with, Article 121 (1), for a construction consistent with the smooth working of the system (see Sukma Darmawan (supra)).= 86. Thus the amendment inserting clause (1A) in Article 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Syariah Courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution. The purport and effect of Article 121 (1A) is eloquently explained by Harding (supra) as follows:- “The amendment does not purport to oust the jurisdiction of the High Court to review decisions of the Syariah Courts. It merely says, in effect, that the ordinary courts cannot exercise the Syariah Court’s jurisdiction, a position which it should be noted, applies to any inferior jurisdiction; it is indeed a cardinal principle of judicial review that the court cannot substitute its decision for that of the inferior jurisdiction whose decision is reviewed. It does not therefore seem possible that the Syariah Courts, by this small amendment, have been converted into a totally separate legal system …. As things stand the civil courts exercise the power of judicial review and this is of course part of the judicial power. Nothing in clause 1A attempts to interfere with this proposition …. For these reasons it seems that clause 1A was enacted for the avoidance of doubt. It seeks to ensure that decisions made within jurisdiction by the Syariah Courts are not reversed by the civil courts. The qualification ‘made within jurisdiction’ is important; the ordinary courts can still decide whether a given decision is within jurisdiction, just as they can with any inferior court. In this sense the primacy of the civil courts has not been disturbed.” (Emphasis added)

 

  1. The operation of Article 121 (1A) in practice illustrates this proposition. Clause (1A) does not remove the jurisdiction of civil courts where constitutional interpretation is concerned. Per Abdul Hamid Mohamed FCJ in Latifah (supra) “Interpretation of the Federal Constitution is a matter for this court, not the syariah court.” This is the case even where the determination of Islamic law is required for the purpose of such interpretation, as firmly reiterated by the Federal Court in Abdul Kahar b. Ahmad v. (Kerajaan Malaysia, intervener) and Anor [2008] 2 MLJ 617:-“Nowhere in the Constitution does it say that interpretation of the Constitution, Federal or State is a matter within the jurisdiction of the Syariah Court to do. The jurisdiction of Syariah Courts are confined to the limited matters enumerated in the State List and enacted by the respective state enactments …. Nowhere in the Constitution is there a provision that the determination by Islamic law for the purpose of interpreting the Federal Constitution is a matter for the State Legislature to make law to grant such jurisdiction to the Syariah Court. Hence, there is no such provision in the State Enactments to grant such jurisdiction to Syariah Courts. In fact, it cannot be done.”

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