Return of Judicial Power: Religious Freedom and the Tussle over Jurisdictional Boundaries in Malaysia (I-CONnect Column)

—Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Indira Gandhi (not the former Indian Prime Minister) is a mother of three children who has not seen her youngest child since the child was barely one year old. That was nine years ago. Her now ex-husband had then unilaterally converted their three children to Islam and obtained ex-parte custody orders from the Syariah court. Indira Gandhi filed suit in the civil courts to quash the unilateral conversions and obtained a competing custody order from the High Court. She sought to enforce the custody order and compel her husband to produce her youngest child but was unsuccessful. Her two older children were with her when the initial Syariah court orders were obtained, and remained with her throughout her long legal battle. The Court of Appeal overruled the High Court, and the matter was finally decided by the Federal Court, which in turn overruled the Court of Appeal, in January 2018.

The judgment in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & or[1] was a much awaited one. The Federal Court quashed the conversion certificates of the three minor children on the basis that the constitution requires the consent of both parents (and not just one parent) for conversion of minors. Under Article 12(4) of the Federal Constitution of Malaysia, “the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” The decision is an important vindication of the applicant’s rights as a parent, which also took on a gender egalitarian perspective as the applicant is a mother.

The judgment is furthermore significant because the Federal Court asserted, for the first time since 1999, that it retained jurisdiction to determine legal questions concerning matters of religious status of Muslim converts. This is a departure from several cases that also came up for consideration recently, where the courts affirmed existing doctrine that the question of a person’s personal status as a Muslim fell within the exclusive jurisdiction of the Syariah Court. This means that even where a person had publicly renounced Islam (e.g. by way of a statutory declaration), they are still bound by Islamic law until the Syariah courts ‘certify’ their conversion.[2] This is not a mere administrative procedure; statutes governing the administration of Syariah laws in some constituent states in Malaysia often empower Syariah courts to impose conditions before certifying conversions, which could include detentions and/or repentance and rehabilitation classes.[3] Consequently, although Article 11(1) of the Federal Constitution guarantees to all persons the right to profess and practice one’s religion, the civil courts in Malaysia have failed to robustly protect religious freedom of Muslims (or former Muslims) by deferring jurisdiction to the Syariah courts over matters of conversion. After all, the right to choose one’s religion, while not explicitly provided for under the Federal Constitution, is widely seen under international law as an integral aspect of one’s freedom to profess one’s religion, which is explicitly guaranteed under the constitution.

The civil courts’ deferral to the Syariah courts is closely related to judicial power, or more accurately, the general retreat of judicial power in Malaysia. The constitutional basis for civil courts deferring jurisdiction to Syariah courts over conversion issues is Article 121(1A) of the Federal Constitution, which states that the High Courts and inferior courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” The 1988 constitutional amendment introducing this provision also removed the judicial power vesting clause. Whereas it formerly stated that judicial power is vested in the High Courts, the amended Article 121 now only states that “[t]here shall be two High Courts of co-ordinate jurisdiction and status … and such inferior courts as may be provided by federal law”, and that these courts “shall have jurisdiction and powers as may be conferred by or under federal law.” The latter part appears to be an attempt to subordinate judicial power to legislative power.

These constitutional amendments followed public clashes between the judiciary and the executive which resulted in the Lord President and several members of the higher judiciary being removed over allegations of misconduct. This was a constitutional crisis widely considered to have undermined the judiciary.[4] Nonetheless, it was the 1999 case of Soon Singh Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah that decisively marked the retreat of the civil courts over matters concerning Islam. In this case, the Supreme Court of Malaysia (then the highest court of the land) departed from earlier jurisprudence and held that the civil courts had no jurisdiction over the question of a Muslim’s personal status even where conversion out of Islam is not explicitly provided for by statute.[5]  Jurisdiction over conversion, the court held, is endowed by implication. This position represents a radical shift in the relationship between the civil and Syariah courts, with impact on the hierarchy of laws as well as state-federal relations. This is because the civil courts are federal constitutional organs whereas the Syariah courts are statutory bodies created by state legislatures. Under the Federal Constitution, the administration of Islamic law and Syariah courts falls within the powers of the constituent states.[6] This judicial retreat therefore must be seen as remarkable from the perspective of judicial power.

Against this backdrop, any move towards more robust protection of religious freedom will presumably be connected with a restoration of constitutional judicial power. The Indira Gandhi case demonstrates this. There, the Federal Court distanced itself from earlier cases and held as “unduly simplistic” the position that matters of conversion are within the Syariah Court’s exclusive jurisdiction because of Article 121(1A). Thus, Article 121(1A) does “not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion.” Instead, the Court asserted that:

The powers of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial power under Article 121(1). … As part of the basic structure of the constitution, it cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation. (Emphasis added.)

Accordingly, as the Syariah Courts are creatures of state legislatures and do not have inherent judicial powers, they should be treated like inferior tribunals. This means that their jurisdiction must be expressly conferred by state legislation and cannot be expanded by implication. Consequently, Article 121(1A) does not and cannot oust the jurisdiction of the civil courts in interpreting the constitution and reviewing the lawfulness of state action.

This asserted restoration of the proper hierarchy between the civil and Syariah courts as an aspect of judicial power hinges upon the basic structure doctrine, which was recently endorsed by the Federal Court, also in the context of reasserting constitutional judicial power.[7] Thus, the Federal Court stated that “the power of judicial review is essential to the constitutional role of the courts, and inherent in the basic structure of the Constitution.”[8] This means that even though Parliament amended the Constitution to remove the judicial vesting clause, this did not have the effect of removing the power of judicial review or of subjecting judicial power to legislative power. As the Federal Court emphatically declared, the power of judicial review “cannot be abrogated or altered by Parliament by way of a constitutional amendment.” The Federal Court’s reassertion of constitutional judicial power and its status as a superior court meant that it could review and quash the certificates of conversion, which is the basis for the Syariah courts’ jurisdiction and custody orders.

The Indira Gandhi case demonstrates that constitutional judicial power, particularly the power of judicial review, remains crucial in vindicating fundamental liberties in the Malaysian constitutional order. Nonetheless, while the case is to be lauded for its bold reassertion of judicial power, it should be noted that the matter was not decided on the basis of an expanded interpretation of religious freedom guarantees. Indeed, the tussle over jurisdictional boundaries and religious freedom remains. Just one month after the Federal Court issued its judgment in Indira Gandhi, a slightly different coram of the same court ruled that the Sarawak Shariah Court had jurisdiction over the application by (former) Muslims to be officially recognised as Christians.[9] The jurisdictional imbroglio continues.[10]

Suggested citation: Jaclyn L. Neo, Return of Judicial Power: Religious Freedom and the Tussle over Jurisdictional Boundaries in Malaysia, Int’l J. Const. L. Blog, Mar. 15, 2018, at: http://www.iconnectblog.com/2018/03/return-of-judicial-power-religious-freedom-and-the-tussle-over-jurisdictional-boundaries-in-malaysia-i-connect-column/

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[1] [2018] 1 LNS 86 (Federal Court of Malaysia).

[2] E.g. Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and other appeals [2017] 1 MLJ 340 (Court of Appeal); Mardina Tiara bt Abdullah Emat @ Margaret ak Emat v Director of Jabatan Agama Islam Sarawak & Ors [2017] 9 MLJ 293 (High Court (Kuching)); Syarifah Nooraffyzza Wan Hosen v Director of Jabatan Agama Islam Sarawak & Ors [2017] 1 LNS 995 (High Court (Kuching))

[3] See Long Seh Lih, ‘Malaysia’ in Keeping the Faith: A Study of Freedom of Thought, Conscience, and Religion in ASEAN, (Human Rights Resource Centre, 2015).

[4] Andrew Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (1990) 39 Int’l & Comparative Law Quarterly 57. It is arguable that the judiciary is still in the process of restoring public confidence, which was severely eroded after this event. See Jaclyn L. Neo and Helena Whalen-Bridge, ‘A Judicial Code of Ethics: Regulating Judges and Restoring Public Confidence in Malaysia’, in Richard Devlin and Adam Dodek (eds.), Regulating Judges: Beyond Independence and Accountability, (Edward Elgar 2017).

[5] Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 1 MLJ 489, 496.

[6] List II of the Ninth Schedule referred to in article 74 authorizes state legislatures to enact religious (syariah) laws on “Islamic law and personal and family law of persons professing the religion of Islam” as well as offences against the precept of Islam.

[7] See e. Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526 (Federal Court of Malaysia).

[8] Emphasis added.

[9] Sulok Tawie, ‘Federal Court defers to Shariah courts in Sarawak apostasy cases’ (Malay Mail Online, 27 February 2018) <http://www.themalaymailonline.com/malaysia/article/federal-court-defers-to-shariah-courts-in-sarawak-apostasy-cases#T0oU16GPfv0fDdUQ.99> accessed 13 March 2018.

[10] Thio Li-ann, ‘Jurisdictional Imbroglio: Civil and Religious Courts, Turf Wars and Article 121(1A) of the Federal Constitution’, in Andrew Harding & HP Lee (eds), Constitutional Landmarks in Malaysia: The First Fifty Years 1957-2007 (Lexis-Nexis 2007).