A constitutional court to resolve interfaith disputes – Andrew Yong

The recent cases of S. Deepa and Indira Gandhi Mutho, both of them Hindu women caught up in disputes with their Muslim-convert ex-husbands over the custody and religion of their children, have given rise to anxiety and discontent among Malaysia’s large non-Muslim minorities, angered by the perceived injustice suffered by the two women and fearful about the safety of their children and their family lives at the hands of Malaysia’s religious authorities, police and justice system.

This article considers the case of Indira Gandhi Mutho, whose children were converted to Islam without her knowledge or consent, and whose infant daughter was taken from her by her husband. Recent decisions by the Court of Appeal have meant that Indira is still separated from her daughter, and has been unable, seven years on, to obtain redress from Malaysia’s judicial system.

Background

Indira and her husband, Pathmanathan, were both Hindus at the time of their marriage in 1993. Their marriage, and the guardianship and custody of their three children, were governed by federal civil laws, namely, the Law Reform (Marriage and Divorce) Act 1976 and the Guardianship of Infants Act 1961.

Section 88 of the 1976 Act creates a presumption that it is for the good of a child under seven years of age to be with his or her mother. This is particularly obvious when the child in question is an infant still being breastfed by the mother. However, after Pathmanathan left the marital home in 2009, taking the couple’s 11-month-old daughter with him by force, he converted to Islam and was able to obtain certificates from the Perak State Islamic Affairs Department converting the couple’s three children to Islam without the wife’s knowledge or consent. He was then able also to obtain orders from a shariah court in Perak granting him custody over all three children, two of whom still remain with Indira.

Indira, being a Hindu, has no standing in the shariah courts. She cannot file a suit to challenge the custody order or the conversion of her children. This is because under the Federal Constitution, the state shariah courts only have jurisdiction over persons professing the Islamic faith. She therefore approached the civil courts for relief. In March 2010, the High Court granted Indira custody over the three children, and in July 2013 issued an order quashing the conversion certificates of the three children.

Jurisdictions in conflict

In spite of the custody order issued by the High Court, the husband, now known as Mohd Ridzuan, refused to return the youngest child to the mother. In May 2014, the High Court proceeded to issue a warrant of committal against him for contempt of court, and issued a recovery order under the Child Act 2001 directing the police to return the child to the mother.

Unfortunately for Indira, the police refused to execute the warrant and recovery order, citing the conflicting custody orders issued by the civil and shariah courts. In October 2014, the High Court issued an order of mandamus compelling the Inspector-General of Police to enforce the warrant and recovery order against the husband. However, in December 2014, the High Court order was overturned by a majority of the Court of Appeal. Indira’s appeal against this decision is still pending before the Federal Court, Malaysia’s highest court.

Civil courts without jurisdiction?

In December 2015, the High Court order quashing the conversion of the three children was also overturned by the Court of Appeal. The Court of Appeal held, by a majority, that the civil courts have no jurisdiction to review administrative decisions whose subject matter, e.g. conversion to or from Islam, falls within the jurisdiction of the shariah courts. The majority of the Court of Appeal held that the fact that Indira was a non-Muslim and had no remedy in the shariah courts did not in itself mean that the civil courts had jurisdiction to provide her with a remedy.

Under the Federal Constitution, the three organs of the Constitution were originally each vested with plenary authority over their respective spheres: the executive authority of the Federation being vested in the Head of State, the Yang di-Pertuan Agong, the legislative authority of the Federation in Parliament, and the judicial power of the Federation in two High Courts of coordinate jurisdiction in Malaya and in Borneo, as well as in such inferior courts as may be provided by federal law.

In 1988, as part of his confrontation with Malaysia’s then-independent and respected judiciary, which ended in the sacking of the Lord President and several justices of the then-Supreme Court (now Federal Court), the then-Prime Minister, Mahathir Mohamad, tabled an amendment to Article 121 of the Federal Constitution to remove the judicial power of the Federation from the courts, and to provide that the courts should only have “such jurisdiction and powers as might be conferred by or under federal law”. More importantly, Article 121(1A) was added to provide that the High Courts and inferior courts created by federal law should have “no jurisdiction in respect of any matter within the jurisdiction of the shariah courts”.

The 1988 amendment has since led to the establishment of what appears to be parallel systems of justice in Malaysia, with shariah subordinate courts, a shariah High Court and a shariah Court of Appeal in each State mirroring the federal civil courts.

Problem of parallel jurisdictions

English legal history describes the problems that can exist when two systems of justice exist in parallel.

In the 17^th century, England had two parallel civil court systems, the common law courts and the Court of Chancery. Each court applied its own principles of justice, namely, the common law and equity, often producing conflicting judgments. Dissatisfied litigants in the common law courts would often approach the Court of Chancery to obtain injunctions preventing the other party from proceeding with or enforcing the common law action, while the common law courts would counter by issuing writs of habeas corpus to free the parties who had been imprisoned for disobeying the injunctions of the Court of Chancery.

Naturally, this state of affairs led to stalemates between the two courts and brought disorder and disrepute upon the administration of justice in England. Finally, in 1615, a stalemate in the Earl of Oxford’s case was referred to King James I, who decided that in a case of conflict between equity and the common law, equity would prevail. This principle still applies throughout the common law world today.

In Malaysia, it is accepted that the civil law and shariah law should each apply within their respective spheres, as defined by the Federal Constitution. However, where there is any overlap and inconsistency, then Article 75 provides that federal law should prevail over State law, and Article 4 provides that the Constitution, which is the supreme law of the Federation, should prevail over both.

Attempts at resolution

In 2009, the federal Cabinet resolved that the conversion of children to Islam should require the consent of both parents. However, it was reported in 2013 that this proposal had met with objections from the Conference of Rulers, who are the hereditary heads of Islam in their respective States.

In June 2014, the Prime Minister, Najib Razak, recommended that parties in interfaith custody disputes should allow their disputes to be resolved by the Federal Court. Unfortunately, the Prime Minister appeared not to realise that the Federal Court, like the High Courts, also lacks any jurisdiction over matters that are within the jurisdiction of the shariah courts.

With limited exceptions, the jurisdiction of the Court of Appeal and the Federal Court is appellate in nature. That is to say, parties generally cannot commence proceedings in the Court of Appeal or the Federal Court, but only in the High Courts or inferior courts. If a party is dissatisfied with a decision of the High Court, he may then appeal to the Court of Appeal, and thereafter, where appropriate, to the Federal Court.

By section 86 of the Courts of Judicature Act 1984 (the “CJA”), the Federal Court in the exercise of its appellate jurisdiction has only such jurisdiction and powers as the High Courts have. The Federal Court can therefore only make such orders that the High Court could and should have made. This means that matters within the jurisdiction of the shariah courts are, by virtue of Article 121(1A), also outside the jurisdiction of the Federal Court on appeal.

Proposed legislative reform

In September 2015, Nancy Shukri, a minister in the Prime Minister’s Department, announced that three acts, the Law Reform (Marriage and Divorce) Act 1976, the Administration of Islamic Law (Federal Territories) Act 1993 and the Islamic Family Law (Federal Territories) Act 1984 would be amended to require a spouse to resolve issues of spousal maintenance, the division of matrimonial assets and the custody of children under the civil law before converting to Islam.

The proposed amendments have not yet been published, but the proposed amendments to the Islamic law statutes will only apply to the Federal Territories, and not to the 13 States. However, even if all State laws could be harmonised in line with the proposed amendments, there is no guarantee that they would be administered in a way that respects the constitutional rights of non-Muslims.

Lack of judicial oversight

The current situation – where the Court of Appeal has held that the fact that Indira has a remedy neither in the shariah courts nor in the civil courts – falls foul of the Latin maxim ubi jus ibi remedium, “where there is a right, there is a remedy”. As a citizen of Malaysia, Indira has constitutional rights that ought to be enforced by the civil courts, who are the guardians of the Federal Constitution.

There are other issues with Malaysia’s judicial system that give rise to legitimate concern amongst Malaysia’s ethnic and religious minorities. Among the 13 judges currently sitting in the Federal Court, there are only two women and one judge representing Malaysia’s 40% non-Muslim population. Not a single judge comes from Malaysia’s non-bumiputera ethnic minority, which makes up a third of the population. Unsurprisingly, the civil courts have been seen as taking a conservative and patriarchal stance when faced with disputes involving Islam and the shariah courts. It is certainly high time that Malaysia’s higher judiciary was made more representative of women and of Malaysia’s multi-ethnic and multi-religious population.

Nevertheless, the roots of the current jurisdictional conflicts between the civil and shariah courts seem to lie in the 1988 amendment, which has effectively ousted the High Courts’ traditional supervisory jurisdiction over the shariah courts in Malaysia, and which has been used to justify denying relief to non-Muslims whose personal and religious rights have been trammelled by the actions of State religious authorities.

The Federal Court as a constitutional court

Despite the wide-ranging effects that the 1988 amendment has had on the Malaysian constitutional system, by its own wording, Article 121(1A) applies only to the two High Courts and inferior courts created by federal law, and not to the Federal Court or the Court of Appeal.

The Federal Court, as the highest judicial authority in the Federation, is the final arbiter of the Federal Constitution as the supreme law of the Federation. Article 128(1) confers upon the Federal Court original jurisdiction, to the exclusion of all other courts, to determine whether Parliament or the Legislature of any State has exceeded its legislative competence under the Constitution, and to determine disputes between the States or between the Federation and any State. The Federal Court also has original jurisdiction under Article 128(2) to determine any constitutional question that has arisen in any other court (and which has been referred to it by the High Court in accordance with the rules of court).

However, by virtue of section 81 of the CJA, the Federal Court, in the exercise of its original jurisdiction under Article 128, is also limited to the same jurisdiction and the same powers as the two High Courts.

Moving beyond Article 121(1A)

Because Article 121(1A) does not apply to the Federal Court, implementing the Prime Minister’s June 2014 suggestion that interfaith disputes be resolved in the Federal Court could easily be done by means of a simple amendment to the CJA.

The Constitution of India, on which Malaysia’s Federal Constitution was modelled, provides for two methods of constitutional review. As in Malaysia, the High Courts in India are empowered to issue writs for the enforcement of the fundamental rights guaranteed by the Constitution, or for any other purpose, by Article 226 of the Constitution of India (equipollent with Malaysia’s section 25 and Schedule to the CJA). However, unlike in Malaysia, Article 32 of the Constitution of India also provides for a right to move the Supreme Court directly for the enforcement of the fundamental rights guaranteed by the Constitution. The Indian Article 32 provides:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part …

A provision modelled on Article 32 of the Constitution of India could easily be added by a simple amendment to the CJA. This change would not require any amendment to the Federal Constitution, because under Article 121(2)(c), the Federal Court has “such other jurisdiction as may be conferred by or under federal law”. This provision should also make clear that the jurisdiction and powers of the Federal Court are not limited to those possessed by the High Courts.

This proposed amendment would return the Federal Court to the status of a constitutional court having full power and jurisdiction to determine constitutional issues involving the shariah courts, and to uphold the fundamental liberties of all Malaysians under the Federal Constitution.

If Malaysian politicians on both sides of the political divide take seriously their oaths to preserve, protect and defend the Federal Constitution as the supreme law of the Federation, then it is time that Parliament takes decisive action to provide for a means of resolving interfaith conflicts in accordance with the Constitution. Malaysians should not accept anything less. – February 13, 2016.

*Andrew Yong is an advocate and solicitor at AmerBON Advocates.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.