Amidst the despondency and the dark shadows cast by the recent Court of Appeal decision in the Subashini vs Saravanan case and the subsequent public discourse (or outcry if you will), I am extremely delighted and encouraged as a Malaysian to read the brilliant exposition by the Raja Muda of Perak Raja Nazrin Shah in his keynote address at the Young Malaysians' Roundtable Discussion on National Unity and Development in Malaysia organised by the Bar Council and the Asian Strategy and Leadership Institute (Asli) on Tuesday.
We are told in certain terms that 'This country belongs to all Malaysians' and 'All Malaysians must defend and promote the integrity of the Federal Constitution'. This royal command is a glistering hope and an inspiration to all Malaysians as we celebrate our 50 years of independence.
I must state that the Subashini case is by no means an ordinary case. A non-Muslim was urged to submit to the jurisdiction of the syariah courts to seek recourse for the break-up of her family when the husband converted to Islam.
It is a case of great constitutional importance which can seriously affect individual liberty resulting in great concern to us Malaysians. In my view, the reasoning of the two judges who agreed with Saravanan is flawed in overextending the jurisdiction of the Syariah Court.
The Federal Constitution clearly promotes that the syariah courts 'shall have jurisdiction only over persons professing the religion of Islam' (see paragraph 1, List II of 9th Schedule). In this regard, this unprecedented decision of the Court of Appeal reminds me of my readings at law school decades ago, wherein, The Times criticised the House of Lord's as 'a leaking umbrella' and ended it with the following: '... if our liberties had to be protected by them, they would prove a leaky umbrella."
Throughout the history of the English legal system, there have existed two broad strands of judicial approach. There have been those judges who have taken the view that, without usurping the functions of Parliament, a judge has the duty to interpret the law, as far as he can, in a way which accords with social and personal justice, which upholds rather than destroys the civil liberties of the individual, which looks with suspicion and not equanimity on the increasing encroachment of the state and other power-groups in the lives of citizen.
There is another kind of judge who sees his task as maintaining the authority of the state, interpreting Acts of Parliament narrowly, and supporting the words of the law in preference to the justice of the case, and affirming that it is for Parliament to change a law that turns out to be unjust or absurd, and not for judges to achieve that result through statutory interpretation.
To my mind, the judges are the guardians of our Constitution here. The judges can, or at any rate, should be able to pronounce on the validity of an article to the constitution and the amendments thereof. They should be able to interfere if they are misused or abused.
They have the power of judicial review of legislation and can set aside statutes which are contrary to our constitution, in that they are repugnant to reason or fundamentals. Judges should be courageous and act even-handedly in the name of justice to protect the fundamental liberties and our constitution.
If judges fail in doing so, and interpret the legislative in line with their personal dictates and prejudices, then, in constitutional theory, it would be prudent for Parliament to act. One must remember that the party which has obtained the greatest number of seats at an election can enact any legislation it likes.
My humble view is that the time has come - in the name of our Federal Constitution, justice and fair play to our citizenry - for Parliament to revisit our constitution and right any amendment in line with our intention of our founding fathers of Merdeka 50 year ago.
In concluding, allow me to quote Raja Nazrin: 'Enforced solutions will nullify nation-building, Malaysians need to guard against all forms of extremism, chauvinism, racism and isolationism'.
Raja Nazrin, we Malaysians salute you.