PUTRAJAYA, Feb 9 — The Federal Court says the power to review the lawfulness of executive action rests solely with the civil courts.
In a 100-page judgement released in the judiciary’s website, Justice Tan Sri Zainun Ali said the civil court had jurisdiction to decide on conversion cases such as kindergarten teacher M. Indira Gandhi’s legal challenge as it concerned the constitutionality of the administrative action taken by the Registrar of Muallafs in issuing the certificates of conversion to her three children.
The jurisdiction and powers of the civil courts cannot be confined to federal law but would also deal with interpretation and enforcement of all laws that operated in the country. Indira Gandhi’s case was not a matter within the Syariah Court’s jurisdiction as it did not involve interpretation of any Islamic personal law or principles.
Zainun who was on the five-man bench that ruled on Jan 29, to set aside the unilateral conversion of Indira Gandhi’s three children by her Muslim convert ex-husband, also said the Syariah Courts were not conferred with the power to review administrative decisions of the authorities.
Jurisdiction to review the actions of public authorities, and the interpretation of the relevant state or federal legislation as well as the Constitution, belongs to the civil courts.
Judicial powers cannot be removed from the civil courts because such powers were part of the core or inherent jurisdiction of the civil courts nor could it be conferred on the Syariah court by virtue of Article 121(1A) of the Federal Constitution.
Article 121 (1A) states that civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.
Article 121 (1A), Zainun said, did not constitute a blanket exclusion of the jurisdiction of civil courts whenever a matter relating to Islamic law arose.
The inherent judicial power of civil courts in relation to judicial review and questions of constitutional or statutory interpretation is not and cannot be removed by the insertion of clause (1A).
Judicial power cannot be vested to the Syariah Courts because such courts were not constituted as a “superior court” in accordance with the constitutional provisions safeguarding the independence of judges.
Zainun said Syariah Court judges were appointed by the Rulers of the respective states after consultation with the relevant state religious council.
Syariah Courts are not constituted in accordance with the provisions of Part IX of the Federal Constitutions entitled “The Judiciary.” The constitutional safeguards for judicial independence, including the mechanism for the qualifications, appointment, removal, security of tenure and remuneration of judges, do not apply in respect of Syariah Courts.
“It is trite that the Syariah Court does not have jurisdiction over non-Muslim parties and non-Muslim parties have no locus before the Syariah Court,” added Zainun.
Indira Gandhi's children, two girls and a boy, now aged 20, 19, and nine years were converted to Islam by their father Muhammad Riduan, 47, in April 2009 without her (Indira Gandhi's) consent after his conversion to Islam.
The children were then aged 12 and 11 years, and 11 months. The youngest daughter is with Muhammad Riduan while the other two elder children are with their mother.
In 2013, the Ipoh High Court allowed Indira Gandhi's judicial review quashing the certificates of conversion but that decision was overturned by the Court of Appeal in 2015 which reinstated the children's conversion certificates after allowing the appeal by the Perak Islamic Religious Department director, the Perak government and Registrar of converts, the Education Ministry and government. — Bernama