I have read the full judgement of the case and my fear in the caveat I wrote earlier has turned up to be a reality. You may not realise this, but it has a major impact in our life going forward affecting the generations to come. As is you are already seeing the side reactions from the politicians and public.
Public need to understand that I am not dealing on the issue whether Indira is entitled to custody of her children and the father is entitled to convert the children. Please see my stand on this in my previous write. I can even accept certain rationales based on the facts.
But what I have a problem is how the lordships arrive to the decisions. I have to greatly disagree with this. Courts are not legislators and should not use vague concepts to introduce laws which are within the realm of legislation. Our constitution was never based on any particular ideology. It’s a compromise unique to us based on our tradition legacy and history. The courts should not have liberties to introduce ideology that was not part of the constitutional compromise we had.
I will be posting more on this but I need many to understand it’s not about whether Indira is entitled to the children or otherwise. There is a much bigger issues involved.
Caveat on and disagreement with the judgement
Notwithstanding the previous posting, I have a major caveat on the word “judicial power” used by the federal court which were not made clear in the summary judgement. This is going further technical.
The court as mentioned above actually used the word “judicial power such as judicial review and determination of constitutional issue” saying that Article 121 (1A) does not have a blanket power to exclude civil courts exclusive jurisdiction such as judicial review and determination of constitutional issue. Now I oppose very much if the courts interpret this widely to go against the intended meaning of Article 121 (1A). The court does not have the power to make laws and must respect the will of the people.
Legally “judicial power” is defined as authority, both constitutional and legal, given to the courts and its judges (1) to preside over and render judgment on court-worthy cases; (2) to enforce or void statutes and laws when scope or constitutionality are questioned (3) to interpret statutes and laws when disputes arise. (Black law legal dictionary https://thelawdictionary.org/judicial-power/)
For example, the dictionary then states: “The court was criticized for exceeding its judicial power by applying the law in a way clearly never intended by the legislature.”
The court thus cannot go beyond its power. The word “judicial power” originally appeared in actual provision of Article 121 in 1957. Article 121 then states:
“Judicial power of the federation
- the judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law.”.
The power of the civil courts are conferred and subject to that stated in federal laws. Thus it cannot override the constitution.
Now this provision has been amended to the current wording which has no reference to the words judicial power in the main provisions. The amendment was made pursuant to Malaysia Agreement in 1963.
Now the current wordings state:
“Judicial power of the Federation
- (1) there shall be two high Courts of co-ordinate jurisdictionand status…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.”
It still carries the same meaning previously that the power of civil courts are conferred by and subject to federal laws. It can in no way exceed the powers given under the constitution and this is the very basic structure of our constitution.
It then states that the powers of the court of appeal and federal court.
“(1b) there shall be a court which shall be known as the Mahkamah Rayuan (Court of Appeal) …and the Court of Appeal shall have the following jurisdiction, that is to say—
(a) jurisdiction to determine appeals from decisions of a high Court or a judge thereof (except decisions of a high Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and
(b) such other jurisdiction as may be conferred by or under federal law.”
So the constitution made it clear that it can only hear appeals from a decision of the high court which exercises civil jurisdiction. High court does not have power to exercise shariah jurisdictions. Again the power is as conferred by federal law which cannot override the constitution.
Then clause (2) stipulates the judicial power of the federal court:
“(2) there shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) …. and the Federal Court shall have the following jurisdiction, that is to say—
(a) jurisdiction to determine appeals from decisions of the Court of Appeal, of the high Court or a judge thereof;
(b) such original or consultative jurisdiction as is specified in Articles 128 [on interstate and federal dispute] and 130 [query by Agong]; and
(c) such other jurisdiction as may be conferred by or under federal law.”
It’s clear that the powers are limited to one as conferred by the constitution and cannot be overridden.
It’s clear that the powers to determine constitutional issue is not within the state list. Thus I have no issue if constitutional issues be referred to civil courts.
On judicial review, the powers to review is stated in CJA which essentially states that the court has power to exercise judicial powers existing before merdeka ie to follow UK laws. To understand what is judicial review, I state below the definition of judicial power:
“Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”
It’s imperative to note that judicial review does not hear on the merits of the case. It cannot decide the right and wrong of a case. It reviews whether the procedure has been complied with by an executive body.
In the Indira Ghandi’s case, the court reviewed the decision of a public body to issue conversion certificates. They found no such provision in the perak Islamic enactment. Thus the civil court can exercise the power of judicial review.
In this regard I can agree. The shariah courts do not have judicial review powers to decide whether an executive body is properly exercising its powers. Thus the civil courts may determine this.
But my problem starts when the court uses the words “basic structure” and “judicial power” loosely. It is evident from the above the basic structure of the constitution is that the judicial powers of civil courts are derived from the federal law. It is also a basic structure of the constitution that our constitution is supreme and can override any federal laws. Any federal laws which are inconsistent or repugnant to the constitution will and must be regarded as void be of no effect. This is a founding principle of the constitution. The civil court derives it’s power from the constitution as expressly stated and not beyond. Any other interpretation will wreck havoc to the principle of supremacy of our constitution. Thus if the parliament with more than 2/3rd majority amend the constitution and Court of Judicature Act to transfer the power of judicial review of Islamic institution from civil courts to shariah courts the civil courts must respect such amendments. The supreme law of the land is the constitution and this basic structure must be adhered to.
Thus, though I can accept the argument on facts of this case, I cannot find myself in agreement with the concept of “basic structure” and “judicial power” espoused by the federal court which seems to suggest federal laws prevail over the constitution. This is wrong in law. Judicial powers of the civil courts must be decided accordingly and not prevail over our constitution.
Lukman Sheriff, is a practicing lawyer.