In a bold, unanimous judgment in Pengarah Jabatan Agama Islam Perak vs. Indira Gandhi Mutho, the Federal Court of Malaysia (the country’s highest court) categorically affirmed Malaysia’s secular foundations and aligned its constitutional jurisprudence with that of other common-law countries such as Canada, Australia and the United Kingdom.
The decision arose from a custody battle that involved the voluntary conversion of a Hindu to Islam and his subsequent unilateral “conversion” of his three children to his newfound faith without the consent of the children’s mother. Following the children’s conversion, the father sought and obtained recognition of the conversion by a Syariah court.
The mother filed an application for judicial review in the High Court of Malaya for an order of certiorari to quash her children’s conversion. The High Court allowed the mother’s application for judicial review and set aside the certificates of conversion, holding that the federal constitution did not confer jurisdiction or authority on the Syariah courts to the exclusion of the civil courts. The High Court’s decision was reversed on appeal by the Court of Appeal (supra), whereupon the matter was brought before the Federal Court.
In restoring the judgment of the High Court and allowing the appeal by the mother, the Federal Court recognized Malaysia’s Westminster traditions and considered at length the structure of the federal constitution, the separation of powers and the role of the judiciary in civil courts. The judgement is historic, in that Malaysia’s highest court took a clear, independent stand to remove any doubt surrounding the authority of civil courts to interpret all legislation, including legislation dealing with religious matters.
For more information about this matter and Malaysian constitutional law, please contact your Ally Law lawyer.