The article summarises the landmark decision of Indira Gandhi Mutho V. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145

In a recent Federal Court ruling, the case of Indira Gandhi Mutho V. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145, was hailed as one of the most important court decisions in the constitutional history of the nation.

While the suit at its bare essence is about an Indian mother’s right to her daughter, judges (former and present), lawyers, and academics alike agree that the implications of the case is wide, impactful, long-lasting, and overall positive. It is not difficult to agree to that observation for the following reasons:

Firstly, the decision most importantly reaffirmed the civil courts’ constitutional role and powers. The decision clears up the confusion when it comes to the jurisdiction of the civil court viz a viz the jurisdiction of the Syariah court.

The Federal Court retracted from the long-held position that matters of conversion are within the Syariah Court’s exclusive jurisdiction because of Article 121(1A) of the Federal Constitution. The Court instead held firmly that judges should “not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion.”

Secondly, for once and for all, the Apex Court confirmed the basic structure doctrine existence in Malaysia jurisprudence. The basic structure doctrine means that there are elements in the constitution which forms its basic structure and which cannot be legislated away. For example, in this case, the power of judicial review and of constitutional interpretation are such important constituents under civil courts’ judicial power that they cannot be abrogated from the civil courts, whether by constitutional amendment, Act of Parliament or otherwise.

This is an affirmation of the inherent judicial power elucidated by also fairly recent and equally positive landmark decision of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526.

The above is summarised beautifully in the headnote of the judgement itself which states: “The significance of the exclusive vesting of judicial review in the Judiciary, and the vital role of judicial review in the basic structure of the constitution is twofold. First, judicial power cannot be removed from the civil courts. The jurisdiction of the High Courts cannot be truncated or infringed. Therefore, even if an administrative decision is declared to be final by a governing statute, an aggrieved party is not barred from resorting to the supervisory jurisdiction of the court. The existence of a finality clause merely bars an appeal to be filed by an aggrieved party. Secondly, judicial power cannot be conferred on any other body whose members do not enjoy the same level of constitutional protection as civil court judges do to ensure their independence. Parliament cannot just declare formally that a new court is a superior court or shares the rank of being at the apex of the judicial hierarchy; the test is substantive, requiring an examination of the composition and powers of the new court.”

Finally, having held that the Civil Court has jurisdiction to deal with the matter at hand, being whether the certificates of conversion issued by the Pengarah Jabatan Agama Islam Perak which converted the three children of Madam Indira Ghandi, is valid, the Court proceeded to hold that they are not valid as they are procedurally flawed. 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.

The judges clarified that provisions in the Federal Constitution cannot be interpreted literally, and the term “parent” used in the Constitution, would have a plural meaning of “both parents”, as long both are alive, and the singular term was used to provide for a situation where a single parent is alive.

What is most encouraging is when the President of the Court of Appeal Zulkefli Ahmad Makinudin held in his concurring judgment that “our courts are secular and unaffected by racial or religious sentiments”, and stated that the decision made based on interpretation of laws and not religious inclination.

Overall, this is an encouraging decision and is one that moves Malaysia towards the right direction of a moderate, liberal, and secular nation governed by the rule of law.