KUALA LUMPUR, March 16 — A DAP federal lawmaker today suggested amendments to the Courts of Judicature Act to put an end to what he described as a “legal lacuna” created by the country’s dual-track justice system.
The lawmaker, Bukit Bendera MP Zairil Khir Johari, said the Act should be adjusted to ensure that the Federal Court is given full jurisdiction to act as the final arbiter in all legal matters in the federation, and to allow direct petition to the said court in matters involving constitutional rights and fundamental liberties.
This, he said in a statement today, would help resolve jurisdictional problems between the civil and Shariah courts, especially in matters involving the unilateral conversion of minors to Islam and custody disputes between non-Muslim parents and their Muslim convert spouses.
One example, Zairil said, is the case of M. Indira Gandhi, the Hindu mother who has been fighting for seven years for full custody rights over her three children, who were unilaterally converted to Islam by her Muslim-convert ex-husband. Indira last year lost her challenge in the Court of Appeal when it ruled that the civil courts have no jurisdiction to review the administrative decisions of the Shariah courts.
“More alarmingly, the Court of Appeal also noted that the fact that Indira, as a non-Muslim, had no remedy in the Shariah Court does not in itself mean that the civil courts have jurisdiction to provide her with remedy,” Zairil recalled.
“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?” the DAP assistant national publicity secretary added.
According to Zairil, this “legal lacuna” can be traced back to the 1988 judicial crisis following the sacking of then Lord President Tun Salleh Abas that later saw amendments made to Article 121 of the Federal Constitution.
The amendments, he said, had included an alteration to Article 121 that stipulated that the courts should have only “such jurisdiction and powers as might be conferred by or under federal law”, and the insertion of Article 121(1A), which effectively separated the jurisdiction of the High Court and its subordinate courts from all matters under the purview of the Shariah Courts.
Zairil noted that it was these amendments that created the two parallel systems of justice in Malaysia – the civil courts and the Shariah legal system – both which have distinct jurisdictional authority.
“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 Shariah 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,” the lawmaker said.
As such, he said his proposed amendments to the Courts of Judicature Act were necessary to resolve the jurisdictional conflict between the civil and Shariah legal systems.
“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,” he said.
