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ADMINISTRATIVE LAW: Judicial review Jurisdiction Conversion of nonMuslim children to religion of Islam Whether within exclusive jurisdiction of
Shariah Court Certificates of Conversion Certificates issued by Islamic religious
authorities Whether an administrative decision Whether amenable to judicial
review Whether conversion lawful and constitutional Federal Constitution,
arts. 3, 5, 8, 11, 12 Administration of the Religion of Islam (Perak) Enactment
2004, ss. 96, 101, 106
ADMINISTRATIVE LAW: Judicial review Jurisdiction Conversion of nonMuslim children to religion of Islam Application for review of decisions of Islamic
religious authorities Principles Issues before High Court Whether only that
of legality of conversion process Whether High Court decided on legality of
conversion instead Whether a misdirection
CONSTITUTIONAL LAW: Fundamental liberties Right to practice ones
religion Conversion of non-Muslim children to religion of Islam Conversion at
instance of a converting parent Whether single parent could lawfully convert
children to Islam Whether requiring consent of both parents Whether conversion
contravened fundamental liberties provisions of Constitution Whether conversion
lawful and constitutional Federal Constitution, arts. 3, 5, 8, 11, 12
ISLAMIC LAW: Convert Conversion to Islam Conversion of non-Muslim
children to religion of Islam Jurisdiction Whether within exclusive jurisdiction
of Shariah Court Certificates of Conversion Whether conclusive proof of facts
stated therein Judicial review Whether matter could properly be heard by civil
High Court Whether single parent could convert children to Islam Whether
conversion lawful and constitutional Federal Constitution, arts. 3, 5, 8, 11, 12
Administration of the Religion of Islam (Perak) Enactment 2004, ss. 96, 101, 106
These appeals were against the decision of the learned Judicial
Commissioner (JC) ruling, in a judicial review proceeding before him, that
the conversion to the religion of Islam of the children of the appellant and
respondent in the first appeal was unlawful, unconstitutional, null and void
and of no effect. The facts were that the appellant and the respondent were
married in 1993 under the Law Reform (Marriage and Divorce) Act 1976.
In 2009, the appellant converted to Islam and thereafter successfully applied
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to the Jabatan Agama Islam, Perak to also convert their three children, aged
12, 11 and 11 months respectively. It was not in dispute that three
Certificates of Conversion (Certificates) certifying the childrens conversion
to Islam were issued by the Pengarah Jabatan Agama Islam (Pengarah) and/
or the Pendaftar Muallaf, Perak, and that, upon the appellants application,
a permanent custody order over the children was also granted to the appellant
by the Shariah Court. It was the view of the learned JC, in allowing the
respondents judicial review application, and quashing the conversion and
decisions of the Pengarah and Pendaftar Muallaf, that: (i) the matter before
him had boiled down to a constitutional issue, thereby depriving the Shariah
Court of jurisdiction to decide on the matter; (ii) the conversion had
contravened the constitutional liberties provisions in the Federal
Constitution (Constitution), particularly arts. 3, 5, 8 and 11 thereof; (iii) the
rules of natural justice had been trampled as there was a complete failure by
the Pengarah, or the Pendaftar Muallaf or the Shariah Court to hear the
respondent or the children; (iv) sections 96 and 106 of the Administration
of the Religion of Islam (Perak) Enactment 2004 (Enactment) had been
transgressed, since, upon conversion, no Affirmation of Faith had been
administered on the children, and no consent in writing had been obtained
from the parent; and (v) the conversion without the consent of the nonconverting parent and the children had violated international norms and
conventions.
In taking their appeals before the learned justices of appeal herein, the
appellants, collectively and separately, and in essence, retorted, firstly, that
the learned JC had no jurisdiction to determine the issue of the childrens
conversion to Islam as jurisdiction thereof lay exclusively with the Shariah
Court; secondly, that the learned JC had committed a grave error when he
approached the jurisdiction issue by venturing into the constitutional
construct of the fundamental liberties provisions of the Constitution; and
thirdly, that the conversion of the children had neither contravened the
Enactment nor the Constitution.
Held (allowing appeal; ruling that conversion was effected in accordance
with the law)
Per Balia Yusof Wahi JCA (for the majority):
(1) The eldest child has attained the age of majority at the time of the
hearing of the appeals and is able to choose her own religion. The issue
of her conversion has therefore become academic and no order will be
made in respect of her conversion. (paras 26 & 27)
(2) Upon consideration of the decided cases and applying the subject matter
approach, it is beyond doubt that the issue of the validity of the
conversion of any person to the religion of Islam, and hence whether a
person is a Muslim or not, is a matter falling under the exclusive
jurisdiction of the Shariah Court. It is also clear, upon a plain reading
of s. 50 of the Enactment, that the power to declare the status of a
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(9) The children here have not made the application nor recited the
Kalimah Shahadah nor requested for the appellants consent. In
consequence, without the administrative compliance of ss. 96 and 106,
the Registrar of Muallaf could not in law have issued a certificate under
s. 101 of the Enactment. It follows that as per the principle enunciated
in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd (where
an order of court is made in breach of statute, it is made without
jurisdiction and may be declared void and set aside), the Certificates or
the administrative order of the Pendaftar Muallaf is a nullity ab initio,
and ought to be set aside as of right for non-compliance with ss. 96 and
106 of the Enactment. It further follows that the order of the High Court
quashing the administrative decision was correct, though not for the
reasons stated by the learned JC. (paras 17, 26 & 28)
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Dalam menghujahkan rayuan-rayuan mereka di hadapan yang arif hakimhakim rayuan, perayu-perayu, secara bersesama dan bersendirian dan pada
asasnya menghujahkan, pertama, bahawa yang arif PK tiada bidang kuasa
untuk menentukan isu mengenai pengislaman anak-anak di sini kerana
bidang kuasa untuknya terletak secara eksklusif pada Mahkamah Syariah;
kedua, bahawa yang arif hakim melakukan kekhilafan besar menangani isu
bidang kuasa dengan mengupas maksud peruntukan-peruntukan hak asasi
dalam Perlembagaan; dan ketiga, bahawa pengislaman anak-anak dalam kes
ini tidak melanggar Enakmen mahupun Perlembagaan.
Diputuskan (membenarkan rayuan; memutuskan bahawa pengislaman
dibuat selaras dengan kehendak undang-undang)
Oleh Balia Yusof Wahi HMR (keputusan majoriti):
(1)
Anak sulung telah mencapai umur dewasa semasa perbicaraan rayuanrayuan dan berhak memilih agamanya sendiri. Isu mengenai
pengislamannya dengan itu menjadi akademik dan tiada perintah
dibuat mengenai pengislamannya.
(2)
(3)
(4)
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(5)
(6)
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(2)
Jurispruden yang terbabit dalam pentadbiran keadilan dalam keduadua keagungan Parlimen dan Perlembagaan bukanlah satu perkara
yang sama atau serupa. Satu, keputusan yang dibuat oleh satu koram
hakim yang melaksanakan kedaulatan undang-undang berhubung
keagungan Parlimen mungkin tidak sama dengan keputusan yang
dibuat oleh satu koram lain yang melaksanakan kedaulatan undangundang berhubung keagungan Perlembagaan. Dari segi hak asasi, satu
keputusan yang berasaskan keagungan Parlimen mungkin tidak dapat
memberi keyakinan kepada mereka yang terjejas dengannya,
memandangkan wujud suatu harapan sah bahawa badan kehakiman
melalui sumpah jawatannya akan melindungi hak-hak asasi di bawah
Perlembagaan.
(3)
(4)
(5)
920
(6)
(6a)
(7)
(8)
(9)
[2016] 1 CLJ
Pendaftar Muallaf dalam kes ini berada di bawah seliaan Pengarah dan
sebarang keputusan pentadbiran olehnya tertakluk pada semakan
kehakiman. Harus diingat bahawa Sijil Pendaftar Muallaf tiada kaitan
langsung dengan bidang kuasa atau keputusan Mahkamah Syariah
seperti yang diperkatakan oleh fasal 121(1A) Perlembagaan.
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Surinder Singh Kanda v. The Government of the Federation of Malaya [1960] 1 LNS 132
HC (refd)
Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional [2013] 1 LNS 1465
HC (refd)
Teoh Eng Huat lwn. The Kadhi of Pasir Mas, Kelantan & Anor [1990] 2 CLJ 11; [1990]
1 CLJ (Rep) 277 SC (refd)
Yong Fuat Meng v. Chin Yoon Kew [2008] 5 CLJ 705 HC (refd)
Legislation referred to:
Administration of the Religion of Islam (Perak) Enactment 2004, ss. 2,
50(3)(b)(x), (xi), 96, 100, 101, 106(b)
Administration of the Religion of Islam (State of Selangor) Enactment 2003,
s. 112
Federal Constitution, arts. 3(1), 4(1), 5(1), 8(1), (2), 11(1), 12(3), (4), 37(1),
121(1A), 160
Guardianship of Infants Act 1961, ss. 5, 11
Other source(s) referred to:
Peter Leyland, The Constitution of the United Kingdom, 2nd edn, 2012, p 50
[Editor's note: Appeal from High Court, Ipoh; Judicial Review No: 25-10-2009 (overruled)]
Background
[1]
Pathmanathan (husband) and Indira Ghandi (wife) were married on
10 April 1993. The marriage was registered under the Law Reform
(Marriage and Divorce) Act 1976 (the Act). 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
wifes application for judicial review.
[2]
On 11 March 2009, the husband converted to Islam and on 8 April
2009, he obtained an ex parte interim custody order for all the three children.
He later obtained a permanent custody order from the Shariah Court on
29 September 2009.
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[3]
At the time of the husbands conversion, the two elder children were
residing with the wife while the youngest child was with the husband.
[4]
Sometime in April 2009, the wife received documents from the
husband 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 Pendaftar Muallaf had registered the
children as Muslims.
[5]
Feeling distraught and being dissatisfied with the husbands action, the
wife then filed an application for judicial review in the Ipoh High Court vide
Semakan Kehakiman no. 25-10-2009 seeking for the following orders and/
or reliefs:
(d) Further or in the alternative, a declaration that the infants and each
of them have not been converted to Islam in accordance with the
law;
(e) The costs of the application; and
(f) Such further or other relief as the Honourable Court deems fit.
[6]
In the said application, the husband was cited as the sixth respondent
while the Pengarah Jabatan Agama Islam Perak, The Pendaftar Mualaf,
Kerajaan Negeri Perak, Kementerian Pelajaran Malaysia and Kerajaan
Malaysia were respectively cited as the first to the fifth respondents.
[7]
On 25 July 2013, the learned Judicial Commissioner (JC) allowed the
wifes judicial review application in the terms as prayed. The three
certificates of conversion to Islam issued by the Pengarah Jabatan Agama
Islam Perak were quashed. The learned JC further declared that the said
certificates to be null and void and of no effect.
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[8]
This is an appeal by the husband against the said decision of the High
Court which was registered as Civil Appeal No. A-02-1826-08/2013.
[9]
Alongside the husbands appeal, the Pengarah Jabatan Agama Islam
Perak, the Pendaftar Mualaf and Kerajaan Negeri Perak also filed an appeal
to this court which was registered as Civil Appeal No. A-01-304-08/2013.
Kementerian Pelajaran Malaysia and Kerajaan Malaysia also filed their
appeal which was registered as Civil Appeal No. A-01-316-09/2013.
[10] We heard the three appeals together on 26 May 2015 and we reserved
judgment.
[11]
[13] In dealing with the application before him, the learned JC had
formulated various issues which were listed as follows.
(a) Whether the High Court has jurisdiction to hear the case;
(b) Whether the conversion of the children without the consent of the
non-converting parent violates arts. 8, 11 and 12 of the Federal
Constitution;
(c) Whether the conversion of the children without the consent of the
non-converting parent and in the absence of the children before the
converting authority violates the Administration of the Religion of Islam
(Perak) Enactment 2004;
(d) Whether the conversion without the consent and without hearing the
other non-converting parent as well as without hearing the children
violates the principles of natural justice; and
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[18] Article 8 of the Federal Constitution, in the learned JCs view had
been violated. The wife had not been accorded the equal protection of the
law. Section 5 of the Guardianship of Infants Act 1961 gives equal rights to
both parents while s. 11 of the same requires the court or a judge in exercising
his powers under the Act to consider the wishes of such parent or both of
them. The wife being a non-Muslim can never be heard before the Shariah
Court and thus had been denied of the equality protection as enshrined under
art. 8 of the Federal Constitution. However, in deference to the decision of
the Federal Court in Subashinis case (supra) and based on the doctrine of stare
decisis, the learned JC admittedly had to concede that the conversion by the
single parent had not violated art. 8.
[19] Article 11 of the Federal Constitution guaranties the freedom of
religion where it is declared that every person has the right to profess and
practice his religion. The learned JC was of the view that the practice of ones
religion would include the teaching of the tenets of faith to ones religion. His
Lordship ruled that for the non-Muslim wife not to be able to teach her
children the tenets of her faith would be to deprive her constitutional rights
not just under art. 11 but also arts. 5(1) and 3(1) of the Federal Constitution.
[20] In dealing with the issue of whether the conversion contravenes the
provisions of the Administration of the Religion of Islam (Perak) Enactment
2004, (the Perak Enactment) the learned JC had dealt with the provision of
ss. 96 and 106 of the same. These two provisions are contained under Part
IX which relates to conversion to the religion of Islam.
[21]
Section 96 reads:
96(1)
(c) the utterance must be made of the persons own free will.
I
(2)
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106. For the purpose of the Part, a person who is not a Muslim may
convert to the religion of Islam if he is of sound mind and:
(a) has attained the age of eighteen years; and
(b) if he has not attained the age of eighteen years, his parent or
guardian consents in writing to his conversion.
[24] The other issue formulated by the learned JC was whether the
conversion without the consent of the non-converting parent and the three
children violates international norms and conventions.
[25] In dealing with the said issue, the learned JC had opined that Malaysia
had accorded the Universal Declaration of Human Rights 1948 a statutory
status and given a primal place in our legal landscape. It is part and parcel
of our jurisprudence. As such an interpretation of arts. 12(4) and 8(1) and (2)
of the Federal Constitution vesting equal rights to both parents to decide on
a minor childs religious upbringing and religion would be falling in tandem
with such international human rights principles. His Lordship also
considered the Convention on the Rights of the Child (CRC) and the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) which have been ratified by the Government and further
opined that an interpretation which promotes the granting of equal rights to
the children, the mother and the father where guardianship is concerned
under the Guardianship of Infants Act 1961 ought to be adopted in line and
consistent with international norms. Likewise, the same approach of
interpretation should also be applied with equal force to the provision of
ss. 96 and 106 of the Perak Enactment.
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The Appeal
[26] At the outset, we were informed that the eldest child has, at the time
of hearing of this appeal reached the age of majority and above 18 years old.
Puan Rohana, the state Legal Advisor of Perak, representing the appellant in
Appeal No. A-01-304-08/2013 submitted that the issue of her conversion is
still very much alive and this court ought to make a pronouncement. Encik
Fahri Azzat, learned counsel for the respondent submitted otherwise.
Relying on the authority of the Supreme Courts decision in Teoh Eng Huat
v. The Kadhi of Pasir Mas, Kelantan & Anor [1990] 2 CLJ 11; [1990] 1 CLJ
(Rep) 277; [1990] 2 MLJ 300 he submitted that the matter has become
academic. Being an adult, she has her own right to decide her religion.
[27] We agree with the submissions of learned counsel for the respondent.
We make no order in respect of her conversion to the religion of Islam.
[28] In pursuing these three appeals, the common issue raised by all the
appellants is centred on the issue of jurisdiction of the High Court in
determining the matter. We are of the view and have taken the approach that
the issue of jurisdiction ought to be answered first. In our view, if the High
Court lacked the jurisdiction to deal with the issue of conversion to the
religion of Islam, that will be the end of the matter under the appeal and on
that ground alone the three appeals ought to be allowed, and to go and
venture into the other issues will be purely academic and will not affect the
decision of these appeals.
[29] Learned State Legal Advisor of Perak cited a list of authorities
touching on the issue of jurisdiction of the civil courts on matters relating to
conversion to the religion of Islam. She started by stressing that the approach
to be taken by the courts would be the subject matter approach and cited
Azizah Shaik Ismail & Anor v. Fatimah Shaik Ismail & Anor [2003] 4 CLJ 281,
Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily Shaik
Natar & Ors [2003] 3 CLJ 289, Soon Singh Bikar Singh v. Pertubuhan Kebajikan
Islam Malaysia (Perkim) Kedah & Anor [1999] 2 CLJ 5, FC, Nedunchelian V
Uthiradam v. Nurshafiqah Mah Singgai Annal & Ors [2005] 2 CLJ 306,
Hj Raimi Abdullah v. Siti Hasnah Vangarama Abdullah & Another Appeal [2014]
4 CLJ 253; [2014] 3 MLJ 757, in support of her contention.
[30] Learned Senior Federal Counsel representing the Government of
Malaysia and the Kementerian Pelajaran Malaysia in appeal No. A-01-31609/2013 and En Hatim Musa learned counsel for the appellant in appeal No.
A-01-1826-08/2013 echoed a similar view and adopted the same line of
argument as above.
[31] Learned counsel for the respondent, Mr Fahri Azzat submitted that the
conversion was not done by the Shariah Court but by the Pendaftar Muallaf
who is under the Jabatan Agama Islam Negeri Perak. Jabatan Agama Islam
Negeri Perak is a state body and not a Shariah Court under
art. 121(1A) of the Federal Constitution. He further submitted that ss. 96 and
106 of the Perak Enactment do not confer powers to the Shariah Court on
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[32] Learned counsel further submitted that the conversion without the
consent of the wife is ultra vires the provisions of the Perak Enactment and
against international norms which requires the wifes consent. There is a
breach of the rules of natural justice. Learned co-counsel, Mr Kulasegaran
submitted along the same line.
[33] Having heard the submissions of all parties, and having considered the
rich plethora of cases submitted before us, we are of the view that taking the
subject matter approach, it is beyond a shadow of doubt the issue of
whether a person is a Muslim or not is a matter falling under the exclusive
jurisdiction of the Shariah Court. The determination of the validity of the
conversion of any person to the religion of Islam is strictly a religious issue
and it falls within the exclusive jurisdiction of the Shariah Court.
(2) Whether the civil court has the jurisdiction to determine the validity of
the conversion to Islam of a minor.
[35] The Federal Court held that the Shariah Court shall have the exclusive
jurisdiction to determine whether a person professes Islam or not and further
decided that on the facts of the case the validity of the plaintiffs conversion
falls within the exclusive jurisdiction of the Shariah Court too. In allowing
the appeal, the Federal Court held:
(1) Article 121 of the Federal Constitution (the Constitution) clearly
provided that the civil court shall have no jurisdiction on any matter
falling within the jurisdiction of the Shariah Court. The matters that fall
within the jurisdiction of the Shariah Court were as provided under art
74 of the Constitution, inter alia, matters falling within the State List in
the Ninth Schedule which were Islamic law, personal and family law of
person professing the religion of Islam. Whether a person was a Muslim
or not was a matter falling under the exclusive jurisdiction of the Shariah
Court. It would be highly inappropriate for the civil court, which lacks
jurisdiction pursuant to art 121, to determine the validity of the
conversion of any person to the religion of Islam as this is strictly a
religious issue. Therefore, the question of the plaintiffs conversion in
1983 fell within the exclusive jurisdiction of the Shariah Court.
[36] On those authorities we are left in no doubt that the learned JC had
erred on the very first issue of jurisdiction which was taken by way of a
preliminary objection in the judicial review proceedings before him.
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(a)
(b) in its civil jurisdiction, hear and determine all actions and
proceedings of 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;
[38] A plain reading of the aforesaid provisions puts it beyond doubt that
the power to declare the status of a Muslim person is within the exclusive
jurisdiction of the Shariah 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
abovesaid provision.
[39] Learned Senior Federal Counsel, appearing for the appellants in
Appeal No. A-01-316-09-2013 further added to the submissions of learned
State Legal Advisor Perak saying that the approach taken by the learned JC
in deciding on the issue of the jurisdiction of the High Court was the
remedy approach. In determining whether the High Court had jurisdiction
on the matter, His Lordship had stated at p. 10 of his grounds of judgment:
The core of the challenge is the constitutional construct of the
fundamental liberties provisions of the Constitution. The Shariah Court
is a creature of State law and does not have jurisdiction to decide on the
constitutionality of matters said to be within its exclusive purview and
province. Only the superior civil Courts being a creature of the
Constitution can.
On the contrary the civil High Court would have jurisdiction as what the
Applicant is challenging is the constitutionality of the various actions of
the Respondents in converting the children to a civil marriage to Islam as
well as asserting her rights under the Fundamental Liberties provisions in
Part II of the Federal Constitution as well as under the Guardianship of
Infants Act 1961.
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erroneously approached the issue before the court by venturing into the
constitutional construct of the fundamental liberties provisions of the Federal
Constitution.
[41] We agree with the aforesaid submissions. The learned JC had erred in
his approach of dealing with the subject matter before him. His Lordship had
decided on the constitutionality of the conversion instead. His approach was
solely on the constitutional interpretation of the various provisions in the
Federal Constitution. The hearing before him was simply on the
constitutionality of the conversion process which was challenged by way of
a judicial review application.
[42] We are of the view that on this ground alone these appeals ought to
be allowed and for the judgment of the High Court to be set aside. To allow
the High Court to review decisions on matters which are within the exclusive
province of the Shariah Court is in contravention of art. 121 of the Federal
Constitution and inconsistent with the principles of judicial review.
[43] The argument that only the Shariah Courts have exclusive jurisdiction,
but not the Majlis Agama Islam or officers is not a pivotal issue. The pivotal
issue is whether the High Court has jurisdiction, irrespective of whether or
not the Majlis Agama Islam has jurisdiction. The subject matter of the suit
is clearly outside the legal competency of the High Court. In addition, the
lack of remedy for the respondent cannot ipso facto confer jurisdiction on the
High Court.
[44] We wish to further add that the learned JC in exercising his judicial
review powers must do so with utmost care and circumspection taking into
consideration the subject matter of the case. As succinctly observed by
Eddgar Joseph Jr FCJ in R Rama Chandran v. Industrial Court of Malaysia &
Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 at p. 183 (CLJ); p. 191 (MLJ):
the decision whether to exercise it, and if so, in what manner, are
matters which call for the utmost care and circumspection, strict regard
being had to the subject matter, the nature of the impugned decision and
other relevant discretionary factors.
[45] Be that as it may, we feel impelled to deal with all the other issues
formulated by the learned JC and we begin with the issue of whether the
conversion of the children has contravened the provisions of the Perak
Enactment, namely, ss. 96 and 106. We have reproduced the said two
provisions in the earlier part of this judgment.
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(2)
[49] In our considered view, s. 2 of the said provision clearly declares the
Certificate of Conversion to be conclusive proof of the facts stated in the
certificate. The Certificates of Conversion of the children are shown at
pp. 445, 448 and 451 of Rekod Rayuan Jld 2 Bahagian C in Appeal No.
A-01-316-09-2013. It is titled Perakuan Memeluk Islam. It states the fact of
the conversion of the person named therein.
[50] We further observed that the Perakuan Memeluk Islam issued by the
Ketua Penolong Pengarah Bahagian Dakwah, b/p Pengarah Jabatan Agama
Islam Perak Darul Ridzuan stated the fact that the persons named therein has
been registered in the Register of Muallafs.
[51] The view taken by the respondent is quite simplistic in that the
Registrar of Muallafs action of issuing the certificate of conversion is an
administrative act and thus amenable to judicial review. In our view, in the
absence of any evidence to the contrary and in the absence of any challenge
to the said certificates which must be done or taken in the Shariah Court, the
said certificates remain good.
[52] The conclusiveness of a Certificate of Conversion was dealt with by
this court in Saravanan Thangathoray v. Subashini Rajasingam & Another Appeal
[2007] 2 CLJ 451. In dealing with an equipollent provision of s. 112 of the
Administration of the Religion of Islam (State of Selangor) Enactment 2003,
Suriyadi Halim Omar (as he then was) observed at p. 503:
[74] The husband also has exhibited the Kad Perakuan Memeluk Agama
Islam which was issued by Registrar of Muallafs who was appointed by
Majlis Agama Islam Selangor under s. 110 of the Administration of the
Religion of Islam (State of Selangor) Enactment 2003. It is written at the
back of the said card that:
Kad in dikeluarkan kepada orang yang memeluk Agama Islam dan
didaftarkan dalam Pendaftaran Muallaf Negeri Selangor
berdasarkan seksyen 111 & 112 Bhg IX Enakmen Pentadbiran
Agama Islam (Negeri Selangor) Tahun 2003 sebagai sijil pemelukan
ke agama Islam.
What it means is that this card is a Certificate of Conversion to Religion
of Islam issued to the husband under s.112 of the Administration of the
Religion of Islam (State of Selangor) Enactment 2003. That s. 112 reads:
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[53] This finding was endorsed in the majority decision of the Federal
Court where His Lordship Nik Hashim FCJ at p. 166 stated:
[12] In the present case, it is clear from the evidence that the husband
converted himself and the elder son to Islam on 18 May 2006. The
certificates of conversion to Islam issued to them under s 112 of the
Administration of the Religion of Islam (State of Selangor) Enactment
2003 conclusively proved the fact that their conversion took place on
18 May 2006. Thus, I respectfully agree with Hassan Lah JCA that the
wifes petition was filed in contravention of the requirement under the
proviso to s. 51(1) of the 1976 Act in that it was filed 2 months and
18 days short of 3 months after the husbands conversion to Islam. It
follows therefore that the petition was premature and invalid and the
summons-in-chambers, ex parte and inter parte based on the petition which
were filed therein were also invalid.
[54] Section 100 of the Perak Enactment sets out the powers of the
Registrar of Muallaf in determining whether a person may be registered as
a muallaf. Section 100 reads:
Registration of Muallafs
100(1) A person who has converted to the religion of Islam may apply
to the Registrar in the prescribed form for registration as a
muallaf.
G
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[55] In our view, the issuance of the Perakuan Memeluk Islam stating that
the persons named therein has been registered in the Register of Muallafs
merely indicates that the issue of conversion has been satisfied and the fact
that the persons named therein has been so registered, the process of
conversion must have been done to the satisfaction of the Registrar. The three
impugned certificates state the person named therein adalah disahkan telah
memeluk Islam and surat ini membuktikan bahawa beliau adalah seorang
Islam mengikut rekod pendaftaran jabatan ini. As such, we are of the view
that the High Court has to accept the facts stated therein and it is beyond the
powers of the learned JC to question the same.
[56] On the same token, we are further of the view that it was not the
business of the learned JC to consider whether the provisions of ss. 96 and
106 of the Perak Enactment had been violated. To dwell into the issue of
whether the said provisions had been violated or otherwise is in effect
transgressing into the issue of the validity of the conversion which
jurisdiction he had not. We reiterate that the issue of the validity of the
conversion is a matter within the exclusive jurisdiction of the Shariah Court.
[57] Thus, the pronouncements by the learned JC on the non-compliance
of the two provisions of the Perak Enactment is a misdirection which must
be corrected.
[58] The issue on the right of a single parent to convert a child or children
to the marriage without the consent of the wife was dealt with by the Federal
Court in the case of Subashini a/p Rajasingam v. Saravanan a/l Thangathoray
and Other Appeals (supra). There, the wife complained that the husband who
had converted to Islam had no right to convert either child of the marriage
to Islam without her consent. She contended that the choice of religion is a
right vested in both parents by virtue of arts. 12(4) and 8 of the Federal
Constitution and s. 5 of the Guardianship of Infants Act 1961.
[59] Likewise, the wife in the instant appeal had a similar complaint and
the learned JC had formulated the issues accordingly as we have narrated
earlier with a further additional question of whether art. 11 of the Federal
Constitution had been violated.
[60] The Federal Court in Subashinis case had at pp. 171-172 of the report
stated:
CONVERSION
[25] The Wife complained that the husband had no right to convert either
child of the marriage to Islam without the consent of the wife. She said
the choice of religion is a right vested in both parents by virtues of arts.
12(4) and 8 of the FC and s. 5 of the Guardianship of Infants Act 1961.
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[26] After a careful study of the authorities, I am of the opinion that the
complaint is misconceived. Either husband or wife has the right to convert
a child of the marriage to Islam. The word parent in art. 12(4) of the FC,
which states that the religion of a person under the age of 18 years shall
be decided by his parent or guardian, means a single parent. In Teoh Eng
Huat v. Kadhi, Pasir Mas & Abor [1990] 2 MLJ 300, Abdul Hamid Omar LP,
delivering the judgment of the Supreme Court, said at p 302:
We would observe that the appellant (the father) would have been
entitled to the declaration he has asked for. However, we decline
to make such declaration as the subject is no longer an infant.
(emphasis added.)
Therefore, art. 12(4) must not be read as entrenching the right to choice
of religion in both parents. That being so, art. 8 is not violated as the right
for the parent to convert the child to Islam applies in a situation where
the converting spouse is the wife as in Nedunchelian and as such, the
argument that both parents are vested with the equal right to choose is
misplaced. Hence the conversion of the elder son to Islam by the husband
albeit under the Selangor Enactment did not violate the FC. Also reliance
cannot be placed on s. 5 of the Guardianship of Infants Act 1961 which
provides for equality of parental rights since s. 1(3) of the same Act has
prohibited the application of the Act to such person like the husband who
is now a Muslim (see Shamala a/p Sathiyaseelan v Dr. Jeyaganesh a/l C
Mogarajah & Anor [2004] 2 MLJ 241).
[61] The learned JC had found that for the non-Muslim parent in this
appeal not being able to teach her children the tenets of her faith would be
to deprive her of her constitutional rights under art. 11 of the Federal
Constitution. That cannot be so.
[62] The Federal Court had, in Subashinis case held that art. 12(4) must
not be read as entrenching the right to choice of religion in both parents. In
so holding that art. 11 has been violated because of her being deprived of the
opportunity to teach the children the tenets of her religion, the learned JC
in the instant appeal had run foul of the Federal Courts pronouncement that
art. 12(4) of the Federal Constitution does not confer the right to choice of
religion of children under the age of 18 in both parents. The exercise of the
right of one parent under art. 12(4) cannot and shall not be taken to mean
a deprivation of another parents right to profess and practice his or her
religion and to propagate it under art. 11(1) of the Federal Constitution.
[63] The learned JC had erred in finding that art. 11 of the Federal
Constitution had been violated resulting in the conversion of the children to
be unconstitutional, illegal, null and void and of no effect.
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[64] We will now deal with the issue of whether the conversion of the
children in the instant appeals violate international norms and conventions.
The learned JC had found that in interpreting and assigning a meaning to the
word parents in art. 12(4) of the Federal Constitution, the interpretation
that best promotes our commitment to international norms and enhance basic
human rights and human dignity is to be preferred. A similar approach must
also be made in dealing with the provisions of the Guardianship of Infants
Act 1961 and arts. 8(1) and (2) of the Federal Constitution. International
norms meant by His Lordship refers to the Universal Declaration of Human
Rights 1948 (UDHR), The Convention on the Rights of the Child (CRC) and
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW).
[65] To start with, we wish to reiterate what the eminent judge Eusoffe
Abdoolcadeer had stated about the UDHR in Merdeka University Bhd v.
Government of Malaysia [1981] CLJ 175; [1981] CLJ (Rep) 191 at p. 209 as
merely a statement of principles devoid of any obligatory character and is
not part of our municipal law. It is not a legally binding instrument as such
and some of its provisions depart from existing and generally accepted rules.
[66] It is trite that international treaties do not form part of our laws unless
those provisions have been incorporated into our laws. The Federal Court
in Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ
766 at p. 828 had stated:
We should not use international norms as a guide to interpret our Federal
Constitution. Regarding the issue of determining the constitutionality of
a statute, Abdul Hamid Mohamad PCA (as he then was) in PP v. Kok Wah
Kuan [2007] 6 CLJ 341 at p. 355 had this to say:
So, in determining the constitutionality or otherwise of a statute
under our constitution by the court of law, it is the provision of
our Constitution that matters, not a political theory by some
thinkers. As Raja Azlan Shah FJ (as his Royal Highness then was)
quoting Frankfurter J said in Loh Kooi Choon v. Government of
Malaysia [1977] 2 MLJ 187 (FC) said: The ultimate touchstone of
constitutionality is the Constitution itself and not any general
principle outside it.
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the purview of the court not only because it is made in the conduct of
foreign relations, which are a prerogative of the Crown, but also because,
as a source of rights and obligations, it is irrelevant.
[68] This court had expressed its view in Air Asia Bhd v. Rafizah Shima
Mohamed Aris [2015] 2 CLJ 510; [2014] MLJU 606 that CEDAW does not
have the force of law in this country because the same has not been enacted
into the local legislation. For a treaty to be operative in Malaysia, Parliament
must legislate.
[69] We must add that while the Constitution is not to be construed in any
narrow or pedantic sense but this does not mean that this court is at liberty
to stretch or pervert the language of the Constitution in the interest of any
legal or constitutional theory. Neither we are a tribunal sitting to decide
whether an Act of the Legislature is ultra vires as in contravention of generally
acknowledged principles of international law. For us, the Federal
Constitution is supreme and we are duty bound to give effect to its terms.
[70] As a word of caution, perhaps it would be a good reminder to refer
to the words of Lord Bridge of Norwich in Regina v. Secretary of State for the
Home Department, Ex parte Brind & Ors (supra) on judicial usurpation of the
legislative function. As p. 748 of the report, His Lordship expressed:
When confronted with a simple choice between two possible
interpretation of some specific statutory provision, the presumption
whereby the courts prefer that which avoids conflict between our domestic
legislation and our international treaty obligations is a mere canon of
construction which involves no importation of international law into the
domestic field. But where Parliament has conferred on the executive and
administrative discretion without indicating the precise limits within which
it must be exercised, to presume that it must be exercised within
Convention limits would be to go far beyond the resolution of an
ambiguity. It would be to impute to Parliament an intention not only that
the executive should exercise the discretion in conformity with the
Convention, but also that the domestic courts should enforce that
conformity by the importation into domestic administrative law of the text
of the Convention and the jurisprudence of the European Court of
Human Rights in the interpretation and application of it. If such a
presumption is to apply to the statutory discretion exercised by the
Secretary of State under section 29(3) of the Act of 1981 in the instant
case, it must also apply to any other statutory discretion exercised by the
executive which is capable of involving an infringement of Convention
rights. When Parliament has been content for so long to leave those who
complain that their Convention rights have been infringed to seek their
remedy in Strasbourg, it would be surprising suddenly to find that the
judiciary had, without Parliaments aid, the means to incorporate the
Convention into such an important area of domestic law and I cannot
escape the conclusion that this would be a judicial usurpation of the
legislative function.
[2016] 1 CLJ
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[71] In our view, the approach taken by the learned JC in imposing upon
himself the burden of sticking very closely to the standard of international
norms in interpreting the Federal Constitution is not in tandem with the
accepted principles of Constitutional interpretation.
[72] In conclusion, for the reasons we have stated above, the appeals are
hereby allowed and the order of the High Court is set aside. We make no
order as to cost and further order that the deposit to be refunded.
Hamid Sultan Abu Backer JCA:
[73] There are three appeals before us relating to the judicial review
application of the respondent in the High Court, where the respondent had
applied to quash the administrative decision of the Pendaftar Muallaf, and
not any orders of the Syariah Court. The learned trial judge had quashed the
administrative decision and hence this appeal. The three appeals which were
heard together are as follows:
(i) Appeal No. A-02-1826-08-2013 by Pathmanathan a/l Krishnan;
(ii) Appeal No. A-01-304-08-2013 by the Director of the Islamic Religious
Affairs Department of Perak & Ors;
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(d) Further or in the alternative, a declaration that the infants and each
of them have not been converted to Islam in accordance with the
law;
[75] Pendaftar Muallaf in the instant case is under the umbrella of the
Pengarah Jabatan Agama Islam Perak and any administrative decision is
amenable to judicial review. The parties do not dispute that it is an
administrative decision. In consequence, the civil court has jurisdiction to
hear the matter. It must be noted that the powers of the Pendaftar Muallaf
is set out in the Administration of the Religion of Islam (Perak) Enactment
2004. The said Enactment consists of XI parts and 113 sections. The
arrangement of the parts and section is set out below:
ENACTMENT NO. 4 OF 2004
ADMINISTRATION OF THE RELIGION OF ISLAM (PERAK)
ENACTMENT 2004
ARRANGEMENT OF SECTIONS
___________________________
PART I PRELIMINARY
Section 1. Short title and commencement.
Section 2. Interpretation.
Section 3. Saving of prerogative.
PART II MAJLIS AGAMA ISLAM DAN ADAT MELAYU PERAK
Section 4. Establishment of the Majlis.
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Section 108. Offence of teaching the religion of Islam or any aspect of the
religion of Islam without a tauliah.
Section 109. Religion schools.
Section 110. Exemption.
PART XI GENERAL
[76] Not all the sections in the said Enactment are protected by
art. 121(1A) of the Federal Constitution and art. 121 reads as follows:
H
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[2016] 1 CLJ
(c) (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 the jurisdiction of the Syariah courts.
(emphasis added).
[77] The most relevant part where art. 121(1A) is applicable to Syariah
Courts is Part IV. Part IV has 22 sections ie, ss. 44 to 66. Not all the 22
sections are relevant to art. 121(1A). It will also follow that other parts and
sections in the Enactment will not be relevant to art. 121(1A) of the Federal
Constitution. The distinction is not one relating to an apple and an orange
but that of a marble and a pumpkin; when it relates to public law relief.
Article 121(1A) does not permit the civil courts to deal with matters within
the jurisdiction of the Syariah Courts. However, it does not exclude the
jurisdiction of the civil courts judicial review powers in the administrative
decision of the State or its agencies and/or its officers. What the civil courts
cannot do is to intervene in the lawful decision of the Syariah Courts made
within its jurisdiction and not in excess of its jurisdiction. To put it in a
simple term, not all the sections under the Enactment are protected by
art. 121(1A). Cases which have not made out the distinction must be
corrected by due process of law.
[78] In the instant case, the Pendaftar Muallafs certificate of conversion
has nothing to do with the jurisdiction of the Syariah Court and/or decision
of the Syariah Court as asserted in art. 121(1A) of the Federal Constitution
(emphasis added).
[79] The real question in this appeal is whether the Pendaftar Muallaf
powers comes within the jurisdiction of the Syariah Court and in
consequence is protected by art. 121(1A) of the Federal Constitution. If the
answer is in the negative, the decision of the Pendaftar Muallaf is subject to
judicial review. The question is the test for public law relief, in matters
relating to civil and Syariah Court jurisdiction.
[2016] 1 CLJ
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1. Bahawa Yang Arif Hakim terkhilaf dari segi fakta dan undangundang apabila tidak mendengar dan memutuskan isu jurisdiction
atau bidang kuasa sahaja terlebih dahulu sebelum mendengar merit
of the case. Supaya Responden Pertama hingga Ketiga atau PerayuPerayu dapat membuat rayuan berkaitan bidang kuasa (jurisdiction)
terlebih dahulu sebelum kes ini didengar on merit.
2. Bahawa Yang Arif Hakim terkhilaf dari segi fakta dan undangundang apabila gagal mentafsirkan maksud sebenar Artikel 12(4)
Perlembagaan Persekutuan.
3. Bahawa Yang Arif Hakim terkhilaf dari segi undang-undang apabila
gagal mengambil kira bahawa telah ada kes-kes berkaitan Artikel
121(1A) Perlembagaan Persekutuan berkaitan perkara bidang kuasa
di mana keputusan Mahkamah yang lebih tinggi seperti keputusan
Mahkamah Persekutuan adalah mengikat Mahkamah yang lebih
rendah termasuk Mahkamah Tinggi ini.
4. Bahawa Yang Arif Hakim terkhilaf dari segi undang-undang apabila
gagal mengambil kira bahawa Muhamad Riduan bin Abdullah
(Responden No. 6 dalam tindakan Mahkamah Tinggi Ipoh
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945
Brief Facts
[81] The appellant, Pathmanathan (husband) and the respondent, Indira
Gandhi (wife) were married under the Civil Law Act 1976 and had three
children from the marriage. The eldest daughter being 18 years old at the
time of the hearing of this appeal renders the status of the eldest daughter in
this appeal, purportedly academic. All parties have agreed that the issue is
only in relation to the other two children.
[82] The husband converted to Islam on 11 March 2009 and subsequently
on 8 April 2009 had obtained an ex parte interim custody order for all the
three children and later a permanent custody order from the Syariah Court
on 29 September 2009 notwithstanding the clear provision of s. 50 of the
Perak Enactment, only gives jurisdiction to the Syariah Court in its civil
jurisdiction to hear matters when the proceedings are related to Muslims.
However, the appellant obtained the order from the Syariah Court against a
non-Muslim which the Syariah Court has no jurisdiction at all.
[83] The conduct of the appellant obtaining an order from the Syariah
Court against a non-Muslim is a mystery relating to jurisprudence and is not
a subject matter of the judicial review application before the High Court.
However, the parties on the frolic of their own and the respondent by placing
alternative prayers had confused the learned trial judge with convoluted
arguments resulting in a convoluted judgment which in my view is
unnecessary, taking into consideration the simple and basic issues involved
in this case. The said judgment is reported in MLJ citation Indira Gandhi
a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors [2013] 7 CLJ 82;
[2013] 5 MLJ 552.
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[2016] 1 CLJ
[84] To explain to the litigant why I say that parties have resorted to
convoluted arguments and jurisprudence which had resulted in convoluted
judgment, it is all because of lack of appreciation relating to:
B
(iv) the oath of a judge in countries like India and Malaysia which practices
constitutional supremacy.
(v) relying on judgment which has not applied the right version of the rule
of law.
[85] It is well settled that Malaysia, like India, is a country which has a
written Constitution and in consequence the Constitution is supreme.
Executive decision as well as legislative action are subject to the framework
of the Constitution. The three pillars, the Executive, Legislature and the
Judiciary have taken an oath to preserve, protect and defend the
Constitution. By the oath of office they are not allowed to make any arbitrary
decision in any of their decision-making process. They are, by the sacrosanct
oath of office, had undertaken to protect the fundamental rights enshrined in
the Federal Constitution. They can only do so if they apply the rule of law
relating to constitutional supremacy. Ironically what has transpired in
Malaysia is that some of the courts decisions are only based on
constitutional supremacy and a large majority of the decision which affects
the fundamental rights are based on parliamentary supremacy. Those
important decisions which was based on the jurisprudence relating to
parliamentary supremacy appears not to have inspired confidence in the
judicial decision-making process and the cause of convoluted jurisprudence
inconsistent with the oath of office. It all started as a result of the infamous
case of Government of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ
219; [1988] 1 CLJ (Rep) 63; [1988] 2 MLJ 12, where the Supreme Court by
majority had ruled that a taxpayer had no locus standi to question the policy
of the Government and the court by majority in that case said it will not
interfere with the policy of the Government.
[86] The decision had a damaging effect on all subsequent decisions
relating to fundamental rights. For it must be noted that the effect of
Lim Kit Siangs case in practical terms compromised the doctrine of
accountability, transparency and good governance and the check and balance
to control arbitrariness by public decision makers such as the Executive and
Legislature. Arbitrariness is not part of our jurisprudence as propounded by
[2016] 1 CLJ
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947
HRH Raja Azlan Shah in the case of Pengarah Tanah dan Galian, Wilayah
Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS 143; [1979] 1 MLJ
135, where HRH observed:
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 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 courts to intervene. The courts are
the only defence of the liberty of the subject against departmental
aggression. In these days when government departments and public
authorities have such great powers and influence, this is a most important
safeguard for the ordinary citizen: so that the courts can see that these
great powers and influence are exercised in accordance with law.
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(a) Jurists Have Not Been Adequately Trained By The British To Administer The
Written Constitution
The distinction, concept, jurisdiction and power of courts in the regime of
parliamentary supremacy and constitutional supremacy was eloquently
summarised by the learned author, Peter Leyland, in his book The
Constitution of the United Kingdom, (2nd edn), 2012 at p. 50 as follows:
A further crucially important point about legal sovereignty which will be
relevant in relation to many issues under discussion in this book is that
this principle determines the relationship between Parliament and the
courts. It means that although the courts have an interpretative function
in regard to the application of legislation, it is Parliament, and not the
courts, which has the final word in determining the law. This is markedly
different from most codified constitutions. For example, in the United
States, the Supreme Court held in Marbury v. Madison [1803] 1 Cranch 137,
that it could determine whether laws passed by Congress and the
President were in conformity with the constitution, permitting judicial
review of constitutional powers. The situation in the United States is that
ultimately there is judicial rather than legislative supremacy. (emphasis
added.)
[2016] 1 CLJ
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949
England where the society is largely well informed. The same may not be
the case in colonies once administered by the British. In fact, there was a
different set of legislation employed by the British in England as opposed to
that in the colonies though the administration of the judicial principle
appeared to be the same. That is to say, it is not how the English judges
decide but it is actually what was provided in the legislation and/or the
common law and the nature of jurisprudence they employ to tackle the
problem. If the legislation does not provide for fundamental rights, then the
English judges by judicial activism cannot do so. That is their conventional
limit. Though judicial activism is shunned in England, as the judges are by
oath of office subservient to the legislation, on the contrary Judicial
Dynamism is expected of judges in a country with a written constitution to
protect fundamental rights within the constitutional framework; more so
when they have taken an oath to preserve, protect and defend the
Constitution. What is shunned in England as judicial activism is a
constitutional obligation for judges here to meet the legitimate public
expectation as per the Constitution.
A large majority of jurists here and elsewhere have not taken note of the
difference in the oath of office under the Constitution when they criticise
judicial dynamism as judicial activism.
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[2016] 1 CLJ
(i) the right version of the rule of law will turn a desert into an oasis;
(ii) the wrong version of the rule of law will turn an oasis to a desert;
(iii) the role of the courts under the Constitution is to apply the right version
of the rule of law to ensure that an oasis is not turned to a desert;
(iv) under the Constitution, the courts role is not to turn a desert into an
oasis. That role to turn a desert into an oasis rests with the other pillars
and not the courts. The courts role is limited, to that extent. These
separate roles are often referred to as separation of powers. However,
when the courts decision paves way for an oasis to be turned into a
desert that may be referred to as fusion of powers. Fusion of powers is
an anathema to the constitutional framework and will impinge on
fundamental rights and justice.
The jurisprudence involved in administration of justice in both of these
concepts namely parliamentary and constitutional supremacy is not one and
the same. That is to say, when a judge or coram applies the rule of law
relating to parliamentary supremacy in India or Malaysia, the decision may
not be the same as that of another judge or coram who applies the rule of law
relating to constitutional supremacy. In relation to fundamental rights, a
decision based on parliamentary supremacy may not inspire confidence on
the affected populace when there is a legitimate expectation that the judiciary
by its oath of office would act to protect the fundamental rights provided
under the Constitution. This dilemma was felt in India in the early postindependence days when the courts were relying on the rule of law relating
to parliamentary supremacy in interpreting the legislation and/or the
Constitution. Subsequently, the Indian judges in my view realised the
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951
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[2016] 1 CLJ
The Judiciary per se here is not the weaker arm but the supreme policing arm
of the Constitution. In my view, HRH is placed as the constitutional guardian
of the rule of law and order in the country. This is reflected in the oath of
office of HRH. The relevant part of the constitutional oath of His Majesty
pursuant to art. 37(1) reads as follows:
... and by virtue of that oath do solemnly and truly declare that We shall
justly and faithfully perform (carry out) our duties in the administration
of Malaysia in accordance with its laws and Constitution which have been
promulgated or which may be promulgated from time to time in the
future. Further, We do solemnly and truly declare that We shall at alltime protect the Religion of Islam and uphold the rules of law and order
in the Country. (emphasis added)
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953
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A
955
Rule of law is a generic term and in consequence no one yet has been able
to define its parameters. For example, there may be presence of rule of law
in a communist, socialist, democratic, Syariah regime, etc. The real question
here is what version of rule of law need to be applied to administer a written
Constitution. One important aspect on the selection process is that any
principles of law which does not promote transparency, accountability and
good governance and if also the application of that principle, leads to
endemic corruption, cannot be the rule of law envisaged in the Constitution
or Rukun Negara. It is one relating to common sense approach and as Lord
Denning often says if common sense is not applied in the administration of
justice, it would not lead to justice or words to that effect.
I do not wish to elaborate on the parameters of rule of law save to say it is
now an accepted norm that law as per the constitutional framework should
govern a nation, as opposed to governed by arbitrary decisions or legislation
and/or constitutional amendments. Rule by law is an antithesis to rule of law
and is now seen as anathema in democratic country more so in countries
which are subject to a constitutional framework when the decision of the
Executive, Legislature and the Judiciary is tainted with arbitrariness. The
line may appear to be thin but the distinction is like that of comparing a
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marble to the size of a pumpkin and the distinction is not like an apple to
an orange. Rule of law paves the way for progress of democratic nations and
nips corruption in the bud and rule by law leads to destruction of the nation
when by its application corruption sets in. The ultimate result is that it will
compromise fundamental rights as corruption often leads to squandering of
national assets or its revenue and hits the poor the most. In Nik Noorhafizi
bin Nik Ibrahim & Ors v. PP [2014] 2 CLJ 273, the importance of rule of law
was emphasised as follows:
(d) It is pertinent to note that a compliant judiciary or bench cannot
stand as a bulwark of liberty. A compliant judiciary or bench is one
which does not want to subscribe to its sacrosanct oath, and Rukun
Negara and does not believe in Rule of Law and does not want to
protect the constitution and abrogates its role by saying that it has
no judicial power and paves way for Rule by Law. It is for the public
through Parliament or His Royal Highness (HRH), the Rulers, in
particular the Yang Di-Pertuan Agong (His Majesty) to initiate the
steps to arrest the progress of a compliant judiciary and ensure that
the judiciary is independent to protect the constitution and sustain
the Rule of Law. A compliant judiciary will directly and/or indirectly
promote all form of vice which in all likelihood will destabilise the
nation as well as harmony and security. In Lim Kit Siang v. Dato Seri
Dr. Mahathir Mohamad [1987] 1 CLJ 40; [1987] CLJ (Rep) 168; [1987]
1 MLJ 383 the Supreme Court had this to say:
When we speak of government it must be remembered that
this comprises three branches, namely, the legislature, the
executive and the judiciary. The courts have a
constitutional function to perform and they are the
guardian 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.
(e) Our founding fathers have framed the constitution by giving the
courts absolute jurisdiction and power to police and adjudicate on
legislation as well as executive decisions in the right perspective. The
important distinction is that in UK the court is not empowered to
police legislation and declare them as ultra vires of their uncodified
constitution though by way of interpretation of statute or judicial
review they are permitted to declare the decision of executive was
in breach of their uncodified constitution, etc. (see Peter Leyland:
[2016] 1 CLJ
A
957
The locus classic case which has compromised the oath of office of a judge
and public law challenges and/or relief is the majority decision in the case
of Government of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ 219;
[1988] 1 CLJ (Rep) 63; [1988] 2 MLJ 12, where, by the application of
jurisprudence relating to parliamentary supremacy, the court held the
respondent, a Parliamentarian, had no locus standi to question the granting of
largesse by the Government to a nominee company. In addition, the majority
went to decide that the courts will not interfere with the policy of the
Government. The irony of the case in our judicial history is that a three
958
[2016] 1 CLJ
member panel of the Supreme Court related to the facts of that case had
previously granted an interlocutory injunction recognising Parliamentarian
Lim had locus standi and the subsequent decision in unprecedented manner
in law and practice went to hold that Lim had no locus standi. Lims case
within the parameters of judicial precedent as well as court practice arguably
and crudely is seen as an unconstitutional decision delivered by the majority
advocating equally an unconstitutional jurisprudence within the
constitutional framework. I will explain this further.
Lims case was related to the giving of Government contracts without going
through a tender process and/or not giving the tender to the highest bidder,
etc. Basically, the issue was one relating to transparency, accountability and
good governance which must be seen as the soul of rule of law and the
Constitution. The minority decision was based on the doctrine of
constitutional supremacy where the judges held that the appellant had locus
standi. The consequential result of the case led to Malaysian courts, far and
large, applying doctrine of parliamentary supremacy in decision-making
process when it relates to substantial policy of the Government. Such an
approach often did not inspire confidence among the critics though the
majority of the judiciary was rightly or wrongly said to be following the rule
of law as per judicial precedent. The irony of the decision is that the previous
panel and the two dissenting judges, totalling five members of the Supreme
Court in all had held Lim had locus standi. However, the three who said that
Lim had no locus standi had been followed in subsequent cases based on stare
decisis principle. That is to say, the court was observing the rule of law but
not based on constitutional supremacy but parliamentary supremacy, that too
when total majority of five members of the two corams of the Supreme Court
have decided arguably based on the rule of law relating to constitutional
supremacy, and only three judges have decided by applying the rule of law
relating to parliamentary supremacy. Lims case had plagued the relief
relating to fundamental rights and justice and is said to be continuing and is
shamelessly impinging the rule of law and the Constitution, substantially
affecting justice.
[2016] 1 CLJ
A
(i) that the case lays down a rule which is very narrow in scope;
(ii) that it is also contrary to the trend of decisions both in Malaysia and
in the Commonwealth;
959
960
[2016] 1 CLJ
(iv) that earlier decisions had opened up the standing rules; and
(v) that the case was one which affected the very survival of the
government in power.
B
Registered
Leave
Trial
SI
1987
62
56
46
25
1988
77
76
72
41
1989
42
37
25
15
1990
54
42
35
16
1991
52
19
14
1992
34
19
17
1993
42
14
13
1994
87
83
83
25
The statistics indicate very clearly that judicial review shrank to almost a
trickle during a very difficult period for the judiciary (1989-93), but the
situation in 1994 and resembles that of the pre-1988 period.120
At the same time the decisions evince a distaste for involvement in
politically charged cases, especially where policies crucial to national
development are involved. It is also true that there are inconsistencies of
approach. To some extent, however, this is inevitable, given the subjective
and variegated nature of judicial review.
[2016] 1 CLJ
A
961
The former Federal Court Judge and constitutional jurisprudence expert who
was instrumental in anchoring basic structure jurisprudence in our public law
field, Justice Gopal Sri Ram in the recent Ahmad Ibrahim Lecture in relation
to Lims case, ranks it at the lowest ebb in the field of the Malaysian public
law. The learned jurist had this to say:
But once a prima facie case of an abuse of power is shown, for example
that the approval for the construction of a road was given in breach of
a statute, be it even a penal law, the court is duty bound to make inquiry
and apply the appropriate level of intensity of review to determine
whether there has been an abuse of power. The failure of the majority
judgments in particular the judgment of Salleh Abas LP in Government of
Malaysia v. Lim Kit Siang [1988] 2 MLJ 12 to recognise this important
principle ranks that case as the lowest ebb in the field of Malaysian public
law. The dissents of Seah and Abdoolcader SCJJ really point the way
forward. The way forward therefore lies in applying the highest level of
scrutiny whenever a fundamental right is infringed and whenever an
abuse of power by reason of unfairness is brought home. But there is a
proviso to this. Those entrusted with the judicial power of the state must
act according to established principles of constitutional and administrative
law and not display a propensity that shows them to be to paraphrase
Lord Atkin more pro-executive than the executive. When that happens,
the rule of law dies as does the Constitution itself. (emphasis added.)
962
[2016] 1 CLJ
(k) India
It must be noted that the Indian courts at the early part after independence
employed the jurisprudence relating to parliamentary supremacy to deal with
constitutional issues. This is reflected in at least two decisions, namely:
(i) Shankari Prasad Singh Deo v. Union of India AIR 1951 SC 458; (ii) Sajan
Singh v. State of Rajasthan AIR 1965 SC 845. That progress was arrested by
the employment of constitutional supremacy jurisprudence, which is
reflected in two cases and subsequently followed in a number of other cases.
The two important cases are (i) IC Golaknath v. State of Punjab AIR 1967 SC
1643; (ii) Kesavananda Bharathi v. State of Kerala [1973] 4 SCC 225. These two
cases led to the launch of basic structure jurisprudence by the Indian jurists
[2016] 1 CLJ
A
as well as the judges, a concept which was not in vogue in the commonwealth
then. Basic structure jurisprudence, which the court gave force to, was
consistent with the oath of office of the judiciary and was done,
notwithstanding the fact that the then distinguished, The Right Honourable
Prime Minister of India, Jawaharlal Nehru, who was a barrister himself, was
of the view that parliamentary supremacy jurisprudence must be employed
by the courts. Though the word parliamentary supremacy jurisprudence was
not mentioned by the renowned Prime Minister, learned author Dhanapalan
(2015) at p. 27 captures what he had said and that part reads as follows:
Speaking on the Draft Constitution, Jawaharlal Nehru had said in the
Constituent Assembly that the policy of the abolition of big estates is not
a new policy but one that was laid down by the National Congress years
ago. So far as we are concerned, we, who are connected with the
Congress, shall, naturally give effect to that pledge completely and no
legal subtlety, no change, is going to come in our way. He had further
stated that within limits, no Judge and no Supreme Court will be allowed
to constitute themselves into a third chamber; no Supreme Court or no
judiciary will sit in judgment over the sovereign will of the Parliament
which represents the will of the entire community; if we go wrong here
and there, they can point it out; but in the ultimate analysis, where the
future of the community is concerned, no judiciary must be in the way.
According to Jawaharlal Nehru, the ultimatum is that the whole
Constitution is a creature of Parliament.
At this juncture, I must say that those who are involved in the study, practice
and administration of constitutional and/or administrative law must take
note that their research will not be complete if they have not had the
opportunity to read the excellent book penned by Justice Dhanapalan, a
retired judge of Madras High Court, titled Basic Structure Jurisprudence
which I had mentioned earlier.
I do not wish to set out what basic structure literally means, save to draw
attention to what a well-known senior advocate in India and a constitutional
law expert, K Parasaran, in his foreword to the book had said; and also the
paragraph where Justice Dhanapalan had summarised the concept at p. 30
respectively.
At p. v and vi, learned Senior Advocate Parasaran says:
963
964
[2016] 1 CLJ
Basic Structure Jurisprudence was unique and developed by the Indian jurists
and judges to protect the Constitution in particular to sustain fundamental
rights and justice. Constitutional oath jurisprudence is one of Malaysian
make.
Constitutional oath jurisprudence in gist of it is that the Legislature,
Executive and Judiciary have taken an oath of office to preserve, protect and
defend the Constitution. In consequence, any arbitrary decision by them
[2016] 1 CLJ
A
965
must be struck down to sustain the rule of law. In the Malaysian context
HRH also has been vested with constitutional, judicial power to sustain the
rule of law and order in the country.
Basic structure jurisprudence cannot be said to have been accepted in
Malaysia as majority of the decision relating to core public law issues is
addressed through the employment of parliamentary supremacy
jurisprudence. However, in the field of administrative law, courts are vigilant
in employing the doctrine of constitutional supremacy except when it relates
to policy of the Government or relates to legislation or constitutional
amendment. In such cases, courts are quick to revert to the jurisprudence
relating to parliamentary supremacy.
In my view, Malaysia is going through an evolutionary process in respect of
rule of law and the constitution as there are a number of judges who are
committed to constitutional supremacy. This is reflected in the minority
decision in Lims case itself. Quite recently, Richard Malanjum CJ Sabah and
Sarawak in his decision in PP v. Kok Wah Kuan [2007] 6 CLJ 341 in support
of constitutional supremacy jurisprudence had this to say:
The amendment which states that the High Courts and inferior courts
shall have jurisdiction and powers as may be conferred by or under federal
law should be by no means be read to mean that the doctrine of
separation of powers and independence of the Judiciary are now no more
the basic features of the Federal Constitution. I do not think that as a
result of the amendment our courts have now become servile agents of
a Federal Act of Parliament and that the courts are now only to perform
mechanically and command or binding of a Federal law.
56. In India, the Indian judicial approach on standing has veered towards
liberalisation of the locus standi as the courts realise that taking a restrictive
view on this question will have many grievances unremedied (see
Principles of Administrative Law, MP Jain & S N Jain, (6th Ed) at p 1994.
966
[2016] 1 CLJ
The Malaysian position and the convoluted arguments and decisions are all
related to the hybrid jurisprudence courts employ to provide or not to
provide the relief. The instant case is a reflection of the problem we are going
through and it is no easy task for the court when the jurisprudence relating
to rule of law stands nebulous. To be candid, the law and jurisprudence
relating to the Constitution, civil law in relation to public law field as well
as Shariah Law and the jurisdiction and limitation for Parliament as well as
State Legislature to enact are quite straight-forward. However, the decision
of the courts may vary. It all depends before which judge or coram the matter
has been fixed and what version of the rule of law is going to be applied. The
end result is almost predictable in public law field.
[91] Badiaddins case will equally apply in judicial review matters when
dealing with the issue of illegality, irrationality and procedural impropriety.
I will explain this further in my judgment and will also show the order of
the Syariah Court in which the appellant had named a non-Muslim as a party
and obtained an order against a non-Muslim party by misleading the Syariah
Court is an abuse of process of the Syariah Court jurisdiction (see s. 50 of
the Administration of the Religion of Islam (Perak) 2004] and also in breach
of constitutional guarantees relating to procedural fairness to non-Muslims.
[2016] 1 CLJ
A
[92] The misconduct of the appellant requires the relevant authorities and/
or the Syariah Court to move contempt proceedings against the appellant in
the Syariah Court to arrest the abuse as well as set aside the order made in
excess of jurisdiction. Such abuse by a litigant in Syariah Courts often creates
tension between Muslims and non-Muslims when the State has clearly made
laws to say the Syariah Court will have no jurisdiction to hear dispute in
relation to a non-Muslim and the said provision in actual fact guarantees the
constitutional right of non-Muslims by ensuring they are not dragged into
Syariah Courts. The abuse of process order obtained by the appellant through
the Syariah Court dated 29 September 2009 and the subsequent order
obtained by the respondent in the High Court dated 24 April 2009 reads as
follows:
Borang MS 28
ENAKMEN TATACARA MAL MAHKAMAH SYARIAH (PERAK)
2004
DI ANTARA
MUHAMMAD RIDUAN BIN ABDULLAH
@ PATMANATHAN A/L KRISHNAN
NO. KP. 690526-08-5987
...
PLAINTIF
...
DEFENDAN
DAN
INDIRA GANDHI A/P MUTHO
NO. KP. 750110-08-5002
PERINTAH
Tindakan ini diambil setelah mendengar, meneliti dan menimbangkan
keterangan Plaintif di hadapan Hakim Mahkamah Tinggi Syariah Perak Di
Ipoh dengan kehadiran Plaintif dan Peguam Syarie Plaintif En. Mustafa
Kamal bin Hj. Mat Hassan dan tanpa kehadiran Defendan,
967
968
[2016] 1 CLJ
Hakim/Pendaftar
Mahkamah Tinggi Syariah Perak Darul Ridzuan.
DALAM MAHKAMAH TINGGI MALAYA DI IPOH
SAMAN PEMULA NO.(1) 24-513-2009
Dan
Dalam Perkara Akta Membaharui Undang-Undang
Perkahwinan & Penceraian 1976 (Akta .164)
Dan
Dalam Perkara mengenai
Mahkamah Tinggi 1980
Kaedah-Kaedah
ANTARA
INDIRA GANDHI A/P MUTHO
(K/P: 750116-08-5002)
PLAINTIF/
PEMOHON
DAN
PATHAMANATHAN A/L KRISHNAN
(K/P: 690526-08-5987)
DAN/ATAU
[2016] 1 CLJ
A
T/T
Penolong Kanan Pendaftar
Mahkamah Tinggi,
Ipoh.
969
970
[2016] 1 CLJ
[93] The Syariah Court order dated 29 September 2009 was made in excess
of jurisdiction of the Syariah Court as it was made against a defendant who
was a non-Muslim and s. 50 which I have set out below does not vest the
Syariah Court with jurisdiction at all. When orders are made in breach of
rule of law and inconsistent with Rukun Negara, it creates hardship. All
Malaysians are obliged to follow Rukun Negara strictly to avert distrust and
tension and create harmony which was the prime object of Rukun Negara.
(1) A Syariah High Court shall have jurisdiction throughout the State
of Perak Darul Ridzuan and shall be presided over by a Syariah
High Court Judge.
(2) Notwithstanding subsection (1), the Chief Syariah Judge may sit as
a Syariah High Court Judge and preside over such Court.
[2016] 1 CLJ
971
[95] It is clear from s. 50 that (i) the Syariah Court has no jurisdiction to
hear an application by the appellant when he names a non-Muslim as a
defendant and/or respondent; (ii) this case has nothing to do with s. 50(3)(x);
(iii) this case also has nothing to do with s. 50(3)(xi). Very importantly, all
parties to this action must appreciate that s. 50 of the Administration of the
Religion of Islam (Perak) 2004 does not give any jurisdiction to the Syariah
Court to issue certificate relating to conversion (emphasis added).
[96] In this case, the certificate of conversion was given by Pendaftar
Muallaf and the certificate reads as follows:
Nama Islam
Tarikh
Islam
No.
Rujukan
Patmanathan
a/l Krishnan
Muhammad Riduan
bin Abdullah
11 Mac 2009
98/2009 - IP (I)
117/2009 - IP (I)
2 April 2009
118/2009- IP (I)
2 April 2009
119/2009- IP (I)
972
[2016] 1 CLJ
[2016] 1 CLJ
A
973
[100] The said ss. 96, 106 and 101 of the Administration of the Religion
of Islam (Perak) Enactment 2004 reads as follows:
Section 96
Requirement for conversion to the religion of Islam.
For the purpose of this Part, a person who is not a Muslim may convert
to the religion of Islam if he is of mind and:
(a) has attained the age of eighteen years; or (b) if he has not attained
the age of eighteen years, his parent or guardian consents in writing
to his conversion.
974
[2016] 1 CLJ
4(1) This 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.
[2016] 1 CLJ
975
(ii)
(iii)
976
(iv)
[2016] 1 CLJ
in addition, I must say that art. 12(3) and 12(4) of the Federal
Constitution has nothing to do with conversion. It only permits a
parent or guardian from deciding the religion of the child for purpose
of worship of a religion other than his own. That article does not help
the appellant at all. It has nothing to do with conversion. The
difference is not like an apple and an orange but that of marble and
pumpkin. In addition, it will not apply to a child who has not affirmed
the Kalimah Shahadah; and it cannot apply to infant at all. Only
upon affirmation of the Kalimah Shahadah the child can be
converted. Selecting the religion does not mean the child has been
converted. Case laws which have not made out the distinction will be
of no assistance save to say it has to be corrected by due process of
law.
(4) For the purposes of Clause (3) the religion of a person under
the age of eighteen years shall be decided by his parent or
guardian.
(v)
all parties must take note that the Constitution gives ample protection
to freedom of religion. That is not an issue but it cannot be abused by
literal interpretation of the Constitution without reading into it the
Rukun Negara and also without applying the common sense approach
advocated by Lord Denning which I have dealt with in a number of
judgments. The State laws relating to religion applies to all Muslims.
Whether born Muslims or converts. Once a person is a born and bred
as a Muslim or becomes lawfully as a convert, he is expected to
respect the sanctity of the religion. The law here as well as the Rukun
Negara does not allow a Muslim to hide behind constitutional
provision to say he has freedom to choose the religion. However,
constitutional framework and Rukun Negara will assist all Muslims if
the State laws are unconstitutional and/or impinges on the rights of a
Muslim or creates hardship to a Muslim when a Muslims Syariah
personal law as advocated by the Sunni sect namely Hanafi, Shafie,
Hambali or Maliki does not require the Muslim to go through such
hardship. State laws for Muslims which does not confirm to the Sunni
sect can always be challenged and it is provided for in all State Syariah
legislation. I have dealt with it in the case of Yong Fuat Meng v. Chin
[2016] 1 CLJ
(vi)
B
(vii)
it is also for the appellant in this case, to take note that the Quran
ordains that the appellant sorts out his obligations. In Yong Fuat Meng
v. Chin Yoon Kew [2008] 5 CLJ 705; [2008] 5 MLJ 226, on this issue
I have made the following observation:
Islamic Jurisprudence has never been an obstacle for Muslims to fulfil
legal requirement and/or equitable or ethical requirement of the law
of the country or for that matter, for the purpose of civil law of
marriage the contractual commitment of the convert. [See Al-Quran
(al-Maida: 1); (al- Nisaa: 59)]
977
Yoon Kew [2008] 5 CLJ 705; [2008] 5 MLJ 226 and I do not wish to
repeat. Such issues, if any, have to be corrected by way of judicial
review of legislation whether enacted by Parliament or State
Assembly.
978
[2016] 1 CLJ
[107] For reasons stated above, I will dismiss all the appeals with costs to
the respondent, with a note that my learned brother Balia Yusof bin Haji
Wahi JCA and sister Badariah binti Sahamid JCA by majority had allowed
the appeals with no order as to costs.