MP SPEAKS While custody disputes involving Muslim converts and non-Muslim parents have highlighted the need to address problems such as the unilateral conversion of minors to Islam and jurisdictional issues between civil and syariah courts, there is perhaps a greater and more fundamental constitutional question at play.

The case of M Indira Gandhi is a clear illustration of the problem. Having lost custody of her infant daughter following the latter’s unilateral conversion to Islam by her Muslim convert ex-husband who then obtained a custody order from the Syariah Court, her attempt to regain custody through the civil courts hit a roadblock after the Court of Appeal ruled by a majority decision that civil courts have no jurisdiction to review administrative decisions that fall within the jurisdiction of the syariah courts.

More alarmingly, the Court of Appeal also noted that the fact that Indira, as a non-Muslim, had no remedy in the Syariah Court does not in itself mean that the civil courts have jurisdiction to provide her with remedy.

This decision effectively denies Indira, and others like her, her fundamental right to remedy in a court of law, a situation that goes completely against the basic guiding principle of law, ubi jus ibi remedium , which means that “where there is a right, there is a remedy.”

How can such a scenario even occur to a Malaysian citizen, when the Federal Constitution guarantees every citizen justice and equality before the law?

Ramifications from 1988 constitutional crisis

The genesis of this legal lacuna can be traced back to the 1988 constitutional crisis resulting from the then-prime minister’s confrontation with the judiciary.

Following the sacking of the Lord President (now Chief Justice) and a few notable justices of the Supreme Court (now Federal Court), the government moved to amend Article 121 in a significant way.

Firstly, the addition of clause 121(1A) clearly separated the jurisdiction of the High Court and its subordinate courts from all matters under the purview of the Syariah Courts. This had the result of creating two parallel systems of justice in Malaysia with distinct jurisdictional authority.

Secondly, and perhaps even more importantly, Article 121 was altered to stipulate that the courts should have only “such jurisdiction and powers as might be conferred by or under federal law.” This clearly goes against the original corollary of Article 121 at the formation of the nation in 1957, which intended for the judicial power of the Federation to be vested in the courts.

In other words, where the courts used to have plenary authority over the judicial power of the Federation, they now had only whatever powers derived from or granted by federal law.

The need for a final arbiter

While the 1988 amendments may appear to be merely administrative or technical in nature, they actually have great consequences, as can be seen by the predicaments faced by Indira and other non-Muslims who are unable to obtain remedy from either the syariah or civil courts.

Thus, with the existence of two parallel systems of justice and the limited powers of the High Court, there is a need for a final arbiter to make decisions on all legal disputes, especially in cases with unclear jurisdiction.

According to Article 128(1) and (2) of the Federal Constitution, the Federal Court is the highest judicial authority in the Federation, with powers to decide on whether “a law made by Parliament or by the legislature of a state is invalid” based on its respective jurisdictions, to resolve “disputes on any other question between states or between the federation and any state,” as well as to determine questions related to the Constitution that are referred by other courts.

This essentially means that the Federal Court is intended to play the role of a constitutional court.

However, the ability to perform such a function is limited by federal law (from which the courts now derive their powers), specifically Section 81 of the Courts of Judicature Act 1964, which stipulates that, “the Federal Court shall have the same jurisdiction, may exercise the same powers and may make any order as are had and may be exercised or made by the Court of Appeal or by the High Court.”

Such a proviso in fact goes against the express wording of Article 121(1A), which merely detaches the High Court and its subordinate courts, and not the Court of Appeal or Federal Court, from matters under the jurisdiction of the syariah courts.

However, because the courts now derive their power from federal, Section 81 of the Courts of Judicature Act would appear to take priority.

Resultantly, it has come to be that, just like the High Court, the Federal Court has no power over matters that fall within the jurisdiction of the syariah courts, as per Article 121(1A). This is consistent with the recent decision of the Court of Appeal that has condemned mothers like Indira to forever find no remedy in any court of law.

Solving the lacuna

While the legal lacuna that afflicts us today is clearly caused by the constitutional amendments made in 1988, its resolution may not require the drastic step of changing the sacred covenant. In fact, fixing the gap only requires amendments to the Courts of Judicature Act in two ways.

Firstly, the definition of the power and jurisdictional authority of the Federal Court must clearly state that it is not limited to that of the High Court. This would immediately allow the Federal Court to act as the final arbiter on all legal matters in the Federation.

Secondly, a procedure for allowing direct petition to the Federal Court in matters involving constitutional rights and fundamental liberties should be introduced. This should include matters of unclear jurisdiction, such as those that fall within Article 121(1A).

Such a procedure may adopt the provisions stipulated by Article 32 of the Constitution of India, in which parties have the “right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by” the constitution.

In addition, the Indian Supreme Court is also granted powers “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” such rights.

These amendments, if applied to the Courts of Judicature Act, would immediately resolve the constitutional dilemma created by the 1988 constitutional amendments. It would also mean that mothers like Indira would not have to wait close to a decade before they are even heard by the highest court.

If it were clear that the High Court has no jurisdiction over issues pertaining to Article 121(1A), would it not have been better for her to have an avenue to petition the Federal Court directly without having to go through the entire process in the High Court and Court of Appeal?

More importantly, these amendments would restore the status of the Federal Court as a constitutional court that would be able to protect and uphold the constitutional rights and fundamental liberties of all Malaysians, as well as ensure that no one is denied remedy in a court of law.

ZAIRIL KHIR JOHARI is the MP for Bukit Bendera and DAP parliamentary spokesperson for Education, Science and Technology.