Federal Court: ‘Simplistic’ to say Shariah courts have last word on conversions

M. Indira Gandhi (centre) and her relatives arrive at the Federal Court in Putrajaya January 29, 2018. — Picture by Zuraneeza Zulkifli
M. Indira Gandhi (centre) and her relatives arrive at the Federal Court in Putrajaya January 29, 2018. — Picture by Zuraneeza Zulkifli

KUALA LUMPUR, Jan 31 — Views that Shariah courts are the only venue to decide on conversions to Islam are “simplistic”, said the full Federal Court judgment in the case of M. Indira Gandhi.

In a landmark ruling on Monday, it said the civil courts have the exclusive jurisdiction to hear cases such as the Hindu mother’s challenge against the validity of her Muslim convert ex-husband’s unilateral conversion of their three children to Islam in 2009.

The emphatic wording was a clear departure from previous superior court decisions in which judges deferred to their Shariah counterparts in such matters, reinforcing the view that Islamic matters could only be resolved within the latter.

“It must be said that the judicial trend in the past have taken the position that since matters of conversion involves Islamic law and practice, it must follow that the Syariah Courts must have jurisdiction over such matters to the exclusion of civil courts.

“With respect, this approach is unduly simplistic,” Justice Tan Sri Zainun Ali said in the Federal Court’s 100-page judgment sighted by Malay Mail.

The judgment referred to previous Federal Court rulings in the cases of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Another (1999), Lina Joy v Majlis Agama Islam Wilayah Persekutuan and others (2007), and Hj Ramli Abdullah v Siti Hasnah Vangarama Abdullah & another (2014).

In Soon Singh’s case, it said a state law expressly providing for the Shariah courts’ jurisdiction over conversion into Islam implies that conversion out of Islam also falls under the latter’s scope, while the Lina Joy case involving an applicant who wanted to renounce Islam saw the majority of judges ruling that apostasy was the purview of Shariah courts.

 The Federal Court had, in Siti Hasnah’s case, based its decision on precedents when reaffirming that “it is settled law that the question of whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Shariah court”, Zainun said.

Expanding on the “unduly simplistic” approach of considering matters related to Islamic law to be solely for the Shariah courts, Zainun said the position ignores the broader constitutional context of Article 121 (1A) of the Federal Constitution.

Article 121 (1A) states that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

However, Zainun pointed out that the effect of Article 121 (1A) “is not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion”.

Civil courts’ powers entrenched

Zainun noted that the civil courts’ authority under Article 121 (1) include pivotal or crucial components such as the powers of judicial review and interpretation of the Federal Constitution and legislation, adding that such powers are inherent in the civil courts’ constitutional role as the protection against unlawful laws and executive action.

This vested authority is part of the Federal Constitution’s basic structure, and cannot be removed from the civil courts or given to the Shariah courts, be it through amendments to the Federal Constitution, federal law or state laws.

“We take a firm stand on this — in that before a civil court declines jurisdiction premised on the strength of Article 121 (1A), it should first examine or scrutinise the nature of the matter before it. If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction,” the judgment said.

Earlier in the judgment, the Federal Court said Article 121 (1A) is not a blanket exclusion of the civil courts’ jurisdiction whenever a matter relating to Islamic law arises.

Citing various past court decisions, the Federal Court also said the article does not remove either the civil courts’ jurisdiction of constitutional interpretation even when determination of Islamic law is required or the jurisdiction to interpret laws even when it relates to administration of Muslim law.

Zainun’s judgment was unanimously backed by the other judges on the Federal Court’s five-man panel that included Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali.

The Federal Court’s judgment reverses an earlier December 2015 majority decision in Indira’s case by the Court of Appeal.

In the 2015 majority decision, the Court of Appeal had dismissed Indira’s challenge and had cited the Federal Court’s ruling in Siti Hasnah.

The appellate court had then also said: “The determination of the validity of the conversion of any person to the religion of Islam is strictly a religious issue and it falls within the exclusive jurisdiction of the Shariah Court”.