Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak (01(f)-17-06/2016 (A) 01(f)-18-06/2016 (A))

1 CIVIL APPEAL NO. 01(f)-17-06/2016 (A) …APPELLANT … RESPONDENTS (Dalam Mahkamah Rayuan Malaysia (Bidang Kuasa Rayuan) Rayuan Sivil No. A-01-304-08/2013 Antara … Perayu-Perayu Dan Indira Gandhi A/P Mutho ... Responden yang diputuskan oleh Mahkamah Rayuan di Putrajaya pada 30 haribulan Disember 2015) Heard together 2 CIVIL APPEAL NO. 01(f)-18-06/2016 (A) … APPELLANT (No. K/P: 750110-08-5002) … RESPONDENTS (Dalam Mahkamah Rayuan Malaysia (Bidang Kuasa Rayuan) Rayuan Sivil No. A-01-316-09/2013 Antara … Perayu-Perayu Dan Indira Gandhi A/P Mutho ... Responden yang diputuskan oleh Mahkamah Rayuan di Putrajaya pada 30 haribulan Disember 2015) Heard together CIVIL APPEAL NO. 01(f)-19-06/2016 (A) 3 … APPELLANT PATMANATHAN A/L KRISHNAN … RESPONDENT (Dalam Mahkamah Rayuan Malaysia (Bidang Kuasa Rayuan) Rayuan Sivil No. A-02-1826-08/2013 Antara Patmanathan A/L Krishnan … Perayu-Perayu Dan Indira Gandhi A/P Mutho ... Responden yang diputuskan oleh Mahkamah Rayuan di Putrajaya pada 30 haribulan Disember 2015) CORAM : ZULKEFLI AHMAD MAKINUDDIN, PCA RICHARD MALANJUM, CJSS ZAINUN ALI, FCJ ABU SAMAH NORDIN, FCJ RAMLY HAJI ALI, FCJ 4 JUDGMENT OF THE COURT

1. The often misunderstood concept of Islamisation surrounding the issue of religious conversion of young children into the Islamic faith makes articulation of this issue important. BACKGROUND OF THE APPEALS

2. There are three appeals before this Court. They are: i. Civil Appeal 01(f)-17-06/2016 (A) (Appeal no. 17) ii. Civil Appeal No 01(f)-18-06/2016 (A) (Appeal no. 18) iii. Civil Appeal NO. 01(f)-19-06/2016 (A) Appeal no. 19)

3. The Appellant in the appeals, Indira Gandhi a/p Mutho is appealing against the decision of the Court of Appeal dated 30 November 2015 allowing the appeals filed by the Respondents in Appeals no. 17, 18 and 19, respectively.

4. The Court of Appeal set aside the decision of the High Court in allowing the Appellant’s application for judicial review for an order of certiorari to quash the certificates of conversion to Islam of the children in her marriage with Patmanathan A/L Krishnan, the Respondent in Appeal no. 19.

5. In her application for judicial review, the Respondent husband was cited as the 6th Respondent while the Respondents in Appeal no. 17 (Director of the Islamic Religious Affairs Department of Perak, the Registrar of Muallafs and the Perak Government) and the Respondents in Appeal no. 18 (the 5 Ministry of Education and the Government of Malaysia) were respectively cited as the first to the fifth Respondents.

6. The Federal Court had granted leave for the following questions of law :- Courts of Judicature Act 1954 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004. (Marriage and Divorce) Act 1976 (“a civil marriage”) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child. FACTS 6

7. Patmanathan (‘the 6th Respondent’) and Indira Gandhi (‘the Appellant’) were married on 10 April 1993. The marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’). There were three children of the marriage, Tevi Darsiny, aged 12, Karan Dinish, aged 11 and the youngest, Prasana Diksa, who was 11 months old (at the time of filing of the Appellant’s application for judicial review).

8. On 11 March 2009, the 6th Respondent converted to Islam. At the time of the 6th Respondent’s conversion, the two elder children were residing with the Appellant while the youngest child was with the 6th Respondent. On 8 April 2009, the 6th Respondent obtained an ex parte interim custody order for all the three children from the Syariah Court. He later obtained a permanent custody order on 29 September 2009.

9. Sometime in April 2009, the Appellant received documents from the 6th Respondent showing that her three children had been converted to Islam on 2 April 2009 and that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam on her three children. The documents also showed that the Registrar of Muallaf had registered the children as Muslims. High Court for an order of certiorari to quash the certificates of conversion to Islam of the children. The Appellant contended that the issuance of the certificates of conversion to Islam by 7 the Registrar of Muallafs was ultra vires and illegal. It contravened the provisions of sections 96 and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (the Perak Enactment), sections 5 and 11 of the Guardianship and Infants Act 1961 (the GIA) and Article 12(4) read together with Article 8 (2) of the Federal Constitution. Court of Ipoh for custody of the three children pursuant to section 88 of the LRA. On 11 March 2010, the High Court granted the Appellant the custody of the three children. The custody order also directed the 6th Respondent to deliver the youngest child, Prasana Diksa, to the Appellant immediately. For ease of reference the first question is :- Whether the High Court has the exclusive jurisdiction pursuant to section 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment. 8 PROCEEDINGS IN THE COURTS BELOW Appellant’s judicial review application. The learned Judicial Commissioner (JC), Justice Lee Swee Seng characterised the application as a challenge on the constitutionality of the Respondent’s actions, in particular in relation to the fundamental liberties provisions in the Federal Constitution. The learned JC noted that whereas civil courts are creatures of the Constitution, syariah courts as creatures of State law do not have jurisdiction to determine the constitutionality of matters within its purview. Court of Appeal. The majority rejected the learned JC’s 9 approach in determining the constitutionality of the conversion process. The Court of Appeal held that the High Court had no power to question the decision of the Registrar of Muallafs or to consider the Registrar’s compliance with the statutory requirements of s.96 and 106 of the Perak Enactment. Reference was made to the powers of the Registrar in registering under section 100, and conclusiveness of the Certificates of Conversion, as proof of the facts started in s.101(2). The Court of Appeal took the position that the fact that a person has been registered in the Registrar’s of Muallafs as stated in the Certificates of Conversion is proof that the conversion process had been done to the satisfaction of the Registrar. Submissions at the Federal Court Malaysia, learned counsel for the Appellant submitted that Article 121 (1A) does not overrule the general jurisdiction of the High Courts, or enhance the jurisdiction of the Syariah Courts. It was argued that the purpose of the clause, was to prevent civil courts from intervening in lawful decisions made by the Syariah Court. Counsel characterised the subject matter in the present case as one of administrative law, namely whether the Registrar of Muallaffs had acted within the scope of his statutory powers in issuing the certificate of conversion. It was contended that the power of judicial review over the administrative actions of public authorities lies within the 10 exclusive jurisdiction of the civil courts, and is inherent in the judicial power constitutionally vested therein. State Legislatures under powers delineated by the Ninth Schedule in the Constitution, is akin to inferior tribunals. Counsel for the Appellant emphasised that the jurisdiction of Syariah Courts is confined to cases where all parties are Muslims, and cannot be exercised over the non-Muslim Appellant in this case. It was argued that conversion does not absolve a person from his obligations under the personal law to which he was formerly subject; in such cases the civil court retains jurisdiction. Islamic Religious Affairs Department of Perak, the Registrar of Muallafs and the Perak Government (the Respondents in Appeal No.17), the learned Senior Federal Counsel on behalf of the Ministry of Education and the Government of Malaysia (the Respondents in Appeal No. 18), and learned counsel for the 6th Respondent husband (the Respondent in Appeal No.19). It is the main contention of the Respondents that under Article 121 (1A), the High Court has no jurisdiction to hear matters within the jurisdiction of the Syariah Courts. 11 Islam is characterised as a strictly religious matter. The Administration of the Religion of Islam (Perak) Enactment expressly confers jurisdiction upon the Syariah Court to declare the status of a Muslim; matters of Islamic law are also specially demarcated as falling under the Syariah Courts’ jurisdiction pursuant to the Ninth Schedule of the Federal Constitution. Since the subject matter does not lie within the High Court’s jurisdiction, it was submitted that the High Court cannot exercise its power to review the actions of the Registrar of Muallafs in the present case. If the Appellant is dissatisfied with the Registrar’s decision, the appropriate route would be to file a challenge in the Syariah Court. Judicial Power of the High Courts Judicial Power of the Federation 121(1). There shall be two High Courts of co-ordinate jurisdiction and status, namely – High Court of Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and Sabah and Sarawak as the Yang di-Pertuan Agong may determine; 12 And such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. Syariah Courts. BASIC STRUCTURE OF THE CONSTITUTION Constitutional principles Reference re Senate Reform, 2014 SCC 32 (at [25]-[26]):- “The constitution implements a structure of government and must be understood by reference to ‘the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning …’ The rules of constitutional interpretation require that constitutional documents be interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts… Generally, constitutional interpretation must be 13 informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law… These rules and principles of interpretation have led this Court to conclude that the Constitution should be viewed as having an ‘internal architecture’, or ‘basic constitutional structure’… The notion of architecture expresses the principles that ‘[t]he individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole’… In other words, the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in our interpretation understanding and application of the text.” (citation omitted) (Emphasis added) Quebec, [1998] 2 SCR 217. The Court rejected the notion that the system is one of simple, majority rule (at [73]-[74]):- “An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons. 14 First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally. (Emphasis added) “However, we highlight that even though those positions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasise rights that the 15 protection of minority rights is itself an independent principle underlying our constitutional order.” Westminster model, is the separation of powers between the branches of government. This was recognized in this country in earlier cases. In the Singapore High Court case of Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163, Chan Sek Keong CJ said:- …”Likewise under the Singapore Constitution, the sovereign power of Singapore is shared among the trinity of constitutional organs, viz, the legislature (comprising the President of Singapore and the Singapore Parliament), the Executive (the Singapore government) and the Judiciary (the Judges of the Supreme Court and the Subordinate Courts). The principle of separation of powers, whether conceived as a sharing or a division of sovereign power between three organs of state, is therefore part of the basic structure of the Singapore Constitution.” The Role of the Judiciary Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135, Raja Azlan 16 Shah Ag CJ (as his Royal Highness then was) expressed in a passage which has remained inviolable, that:- “… Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint, where it is wrongly exercised, it becomes the duty of the court to intervene. The courts are the only defence of the liberty of the subject against departmental aggression ….” (Emphasis added) Supreme Court in Trial Lawyer’s Association of British Columbia v British Columbia (Attorney General) 2014 SCC 59 at 39, referring to the provisions in the Constitution Act 1867 on the appointment of judges :- “The section 96 judicial function and the rule of law are inextricably intertwined. As Lamer CJ stated in MacMillan Bloedel, “in the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act 1867, the provisional superior courts are the foundation of the rule of law itself” (para 37). The very rationale for the provision is said to be” the maintenance of the rule of law through the protection of the judicial role”: Provincial Judges Reference, at para 88. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s.96 courts, it is only natural that s.96 provide some degree of constitutional protection for access to justice.” 17 Existing the European Union [2017] UKSC 5, the UK Supreme Court examined a series of historical statutes of “particular importance” and held at [42]: “The independence of the judiciary was formally recognised in these statutes. In the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts. That is why and how these proceedings are being decided.” Attorney General [2005] UKHL 56. The ambit of the court’s power in this regard is considered not subservient to but of equal importance as the sovereignty of Parliament (at [51]):- “This question of statutory interpretation is properly cognizable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognizance (jurisdiction) over its own affairs.” (Emphasis added) 18 Appeal in Singapore in Tan Seet Eng v. Attorney General & another matter [2015] SGCA 59 (at [90] and [106]):- “We began this judgment by observing that the specific responsibility for pronouncing on the legality of government actions falls on the Judiciary. It is appropriate at this juncture to parse this. To hold that this is so is not to place the Judiciary in an exalted or superior position relative to the other branches of the government. On the contrary, the Judiciary is one of the three co-equal branches of government. But though the branches of government are co-equal, this is so only in the sense that none is superior to any other while all are subject to the Constitution. Beyond this, it is a fact that each branch of government has separate and distinct responsibilities. In broad terms, the legislature has the power to make the laws of our land, and this power extends even to amending the foundation of our notification, the Constitution. The Executive has the power and the responsibility of governing the country within the framework of the laws established by the legislature. And the Judiciary has the responsibility for the adjudication of controversies which carries with it the power to pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws. It is the nature of this latter responsibility that results in the Judiciary being tasked with the role of pronouncing on the legality of government actions. … In keeping with this, even for matters falling within the category of ‘high policy,’ the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty 19 and arrives at in a legal manner. (De Smith’s Judicial Review at para 1-035). Indeed, this is apparent in Yong Vui Kong at [63] where Chong J commented that there would be a judicial remedy available if the procedures under clemency process had not been abided by. In such circumstances, the question of defence to the Executive’s discretion simply does not arise.” (emphasis added) Supreme Court held in Reference re Secession of Quebec (supra) (at [75] and [78]):- “In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit ‘the people’ in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy. … it might be objected, then, that constitutionalism is therefore incompatible with democratic governments. This would be an erroneous view. Constitutionalism facilitates – indeed, makes possible – a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. 20 Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.” (Emphasis added) Significance of Basic Structure Sarah Shi, ‘The Constitution of Our Constitution, A Vindication of the Basic Structure Doctrine’ Singapore Law Gazette (August 2014) 12). The fundamental underlying principles and the role of the judiciary as outlined above form part of the basic structure of the constitution, being “something fundamental and essential to the political system that is established thereunder” (per Sundaresh Menon CJ in Yong Vui Kong v Public Prosecutor [2015] SG CA 11 [at [71]. It is well settled that features of the basic structure cannot be abrogated or removed by a constitutional amendment (see Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461). Federal Constitution provides that the Constitution is ‘the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.’ This provision is in pari materia with Article 4 of the Singapore Constitution, which 21 was analysed by Chan Sek Keong CJ in Mohammad Faizal (supra) (at [14]-[15]):- “The first fundamental difference is that the UK’s Westminster model is based on the supremacy of the UK Parliament, under which the UK parliament is supreme, with the result that the UK courts have no power to declare an Act of the UK parliament unconstitutional and, hence, null and void. In contrast, Singapore’s Westminster model is based on the supremacy of the Singapore Constitution, with the result that the Singapore courts may declare an Act of the Singapore parliament invalid for inconsistency with the Singapore Constitution and, hence, null and void. Article 4 of the Singapore Constitution expresses this constitutional principle in the following manner:- This Constitution is the supreme law of the Republic of Singapore and any law enacted by the legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. It should be noted that Article 4 of the Singapore Constitution states that any law inconsistent with this Constitution, as opposed to any law inconsistent with any provision of this Constitution is void. The specific form of words used in Article 4 reinforces the principle that the Singapore parliament may not enact a law, and the Singapore government may not do an act, which is inconsistent with the principle of separation of powers to the extent to which that principle is embodied in the Singapore Constitution.” 22 adopted this reasoning in Attorney-General v Taylor [2017] NZ CA 215 (at [47] & [56]-[57]), quoting from Professor Sir William Wade (see ‘The Basis of Legal Sovereignty’ [1955] CLJ 172):- “Nor do the higher courts owe their common law judicial authority to Parliament. As Professor Joseph observes no legislation conferred their general and inherent powers of adjudication. ‘The superior courts acquired their common law powers of adjudication just as Parliament acquired its co-ordinate power of legislation – through historical evolution and adjustment without formal grant of the law.’ … When issues arise affecting the legislature’s legal authority, recourse must be had to the courts, both for an authoritative answer and as a practical necessity. To quote Wade & Forsyth : ‘Even under the British system of undiluted sovereignty, the last word on any question of law rests with the courts.’ This means, as Wade explained elsewhere, that: ‘…it is always for the courts, in the last resort, to say what is a valid Act of Parliament; and that the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts. It is simply a political fact’.” Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 56) has put beyond a shadow of doubt that judicial power is vested exclusively in the High Courts by virtue of Article 121(1). 23 Judicial independence and the separation of powers are recognised as features in the basic structure of the Constitution. The inherent judicial power of the civil courts under Article 121 (1) is inextricably intertwined with their constitutional role as a check and balance mechanism:- “[88] The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers. [89] This is essentially the basis upon which rests the edifice of judicial power. [90] The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework. [91] The concepts above have been juxtaposed time and again in our judicial determination of issues in judicial reviews. Thus an effective check and balance mechanism is in place to ensure that the Executive and the Legislature act within their constitutional limits and that they uphold the rule of law. The Malaysian apex court had prescribed that the powers of the Executive and the Legislature are limited by the Constitution and that the judiciary acts as a bulwark of the Constitution in ensuring that the powers of the Executive and the Legislature are to be kept within their intended limit (see Pengarah Tanah Dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135).” 24 Kit Siang v. Dato’ Seri Dr. Mahathir Mohamed [1987] 1 MLJ 383 (at 386-387):- “The courts have a constitutional function to perform and they are the guardians of the constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review – a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both. The courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.” v. The Queen [1967] 1 AC 259 (at 287):- “Those provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as 25 to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature.” JUDICIAL REVIEW It is important that this is emphasised. That the Appellant in the question posed is not questioning the conversion itself but the process and legality thereof. The issue to consider is whether the Registrar acted with fidelity to its empowering statute in arriving at his decision; and in answering this question, is there need to exhort to intensive forensic study of the same, and whether a more nuanced approach can be taken. Judicature Act 1964 (the CJA) and Order 53 of the Rules of Court 2012 confer jurisdiction on the High Courts to exercise supervisory powers. The Syariah Courts are not conferred with the power to review administrative decisions of the authorities. High Court shall have the additional powers set out in the Schedule. 26 Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same. Paragraph 1 to the Schedule of the CJA reads: Prerogative writs II of the Constitution, or any of them, or for any purpose. Court of India found the power of judicial review to be indispensable in a Constitution that is federal in character:- “This power of judicial review is of paramount importance in a Federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process ….. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. Parliament cannot expand its amending powers by way of a constitutional amendment, so as to allow incursions into the basic structure of the constitution and to exclude judicial review. 27 “transparent case of transgression of the limitations on the amending power.” The Indian Supreme Court articulated the central importance of judicial review in robust terms worth reproducing in full:- “The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution … But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub-version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.” (Emphasis added) Kingdom has not deterred the House of Lords from observing 28 the importance of judicial review as a constitutional fundamental. Per Lord Steyn in R (on the application of Jackson and others) v Attorney General [2005] UK HL 56:- “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.” Significance of Judicial Review as part of the basic structure 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. The Privy Council held that the Act contravened the 29 Constitution of Ceylon in usurping the judicial power of the judicature. Lord Pearce elaborated as follows (at 291-292):- “If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.” (Emphasis added) Treatise on Singapore Constitutional Law (2012 : Singapore, Academy Publishing) at 10.054). Boilmakers’ Society of Australia and ors [1957] AC 288 and Hinds v. The Queen [1977] AC 195 concerned the creation of 30 new courts to exercise judicial functions. In Attorney-General for Australia (supra), the Commonwealth Court of Conciliation and Arbitration was established pursuant to an act of Parliament and conferred with arbitral and judicial functions. The Privy Council held that the act was in contravention of the Constitution of the Commonwealth of Australia. As forcefully elucidated by Viscount Simmonds (at 313-314):- “… it would make a mockery of the Constitution to establish a body of persons for the exercise of non-judicial functions, to call that body a court and upon the footing that it is a court vest in it judicial power. In Alexander’s case, which has already been referred to, Griffith C.J. once and for all established this proposition in words that have not perhaps always been sufficiently regarded: ‘it is impossible,’ he said, ‘under the Constitution to confer such functions (i.e. judicial functions) upon any body other than a court, nor can the difficulty be avoided by designing a body, which is not in its essential character a court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective.’ And in the same case the words came from Barton J.5: ‘Whether persons were judges, whether tribunals were courts, and whether they exercised what is now called judicial power, depended and depends on substance and not on mere name.” (Emphasis added) 31 that the test for the constitutionality of such laws does not depend on the label of the purported court, but its substance. The nature of the jurisdiction, the method of appointment, and the security of tenure for the judges who are to compose the new court must be regarded. Lord Diplock warned of the consequences if the jurisdiction of the Supreme Court could be transferred to other courts which do not adhere to the constitutional safeguards for independence:- “If, as contended by the Attorney-General, the words italicized above in section 97(1) entitled Parliament by an ordinary law to strip the Supreme Court of all jurisdiction in civil and criminal cases other than that expressly conferred upon it by section 25 and section 44, what would be left would be a court of such limited jurisdiction that the label ‘Supreme Court’ would be a false description. So too if all its jurisdiction (with those two exceptions) were exercisable concurrently by other courts composed of members of the lower judiciary. But more important, for this is the substance of the matter, the individual citizen could be deprived of the safeguards, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts.” 32 Keong CJ held in Mohammad Faizal bin Sabtu v. Public Prosecutor [2012] SGHC 163 (at [17]):- “… the specific wording used in this Article [93 of the Singapore Constitution] has the effect of vesting the judicial power of Singapore exclusively in the Supreme Court and the Subordinate Courts, and not in any entity which is not a ‘court’ being, at common law, an entity with certain characteristics. The reference to ‘court’, in Article 93 would include any statutory body or tribunal having the characteristics of a court. All Commonwealth Constitutions appear to follow this practice of vesting the judicial power exclusively in the courts….In the Singapore context, the exclusivity of the judicial power is safeguarded by the provisions in Part VIII of the Singapore Constitution, which are designed to secure the independence of our judiciary.” SCJ in Public Prosecutor v. Dato’ Yap Peng [1987] 2 MLJ 311 :- “…any other view would ex necessitate rei result in relegating the provisions of Article 121(1) vesting the judicial power of the Federation in the curial entities specified to no more than a teasing illusion, like a munificent bequest in a pauper’s will.” 33

(ii) Judicial power in particular the power of judicial review, is an essential feature of the basic structure of the Constitution.

(iii) Features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment.

(iv) Judicial power may not be removed from the High Courts.

(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death; and Thus in the present appeals the question is whether there is an express provision in the Perak Enactment conferring 38 jurisdiction on the Syariah Court to determine the validity of a person’s conversion to Islam. Enactment. It held at [37] that:- “Deliberating further on the issue of the jurisdiction of the Syariah Court, one has to look in the provisions of s 50 of the Perak Enactment. Specifically, sub-ss (3)(b)(x) and (xi) of s 50 confers jurisdiction on the Syariah High Court. A plain reading of the aforesaid provisions puts it beyond doubt that the power to decide the status of a Muslim person is within the exclusive jurisdiction of the Syariah High Court. The order of the High Court declaring that the conversion is null and void is a transgression of s 50(3)(b)(x) of the abovesaid provision.” Perak Enactment is viewed as a specific provision, expressly conferring jurisdiction on the Syariah Courts. It contains a list of subject matter that can be brought before the Syariah Courts. Courts to issue a declaration that “a person is no longer Muslim”. This would be applicable in a case where a person 39 renounces his Islamic faith. But the issue in the present appeals concerns the validity of the certificates of conversion issued by the Registrar of Muallaf in respect of the children’s conversion to Islam. If a finding is made by a court that a certificate (issued in respect of a person’s conversion to Islam) is invalid, it can only mean that the said person has never at any time been a Muslim. Thus the question of him being ‘no longer a Muslim’ does not arise. (Emphasis added) (section 50(3)(b)(xi) of the Perak Enactment), nowhere is there any express provision in section 50(3)(b) which confers jurisdiction on the Syariah Court to determine the validity of a person’s conversion to Islam. Thus, the majority decision of the Court of Appeal had misdirected itself on the construction of section 50(3)(b) of the Perak Enactment. (Emphasis added) SYARIAH COURT JUDGES Constitutions entitled “The Judiciary.” The constitutional safeguards for judicial independence, including the mechanism for the qualifications, appointment, removal, 40 security of tenure and remuneration of judges, do not apply in respect of Syariah Courts. Thangathoray and other appeals [2008] 2 MLJ 147 [at 23]). Thus the perception that both courts (civil courts and syariah courts) should exercise a mutually reciprocal policy of non-interference (see Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara, Malaysia & Anor [1999] 2 MLJ 241 at 246) may be somewhat misconceived and premised on an erroneous understanding of the constitutional framework in Malaysia. Federal Constitution illustrate the respective regimes in which each court operates. Thus issues of jurisdiction and conferment of powers in the civil courts and the syariah courts are clearly drawn. What they (clauses (1) and (1A) Article 121 of the Federal Constitution) illustrate is that, both the civil and syariah courts co-exist in their respective spheres, even if they are dissimilar in the extent of their powers and jurisdiction, in that the civil courts are possessed of powers, fundamental and intrinsic, as outlined in the Federal Constitution. 41 example judicial review) or if it involves constitutional issues or interpretation of the law, then the civil courts would be seised with jurisdiction to determine the issue, regardless of its subject matter and especially if it comes within the scope and ambit of judicial powers as outlined above. Limits on Jurisdiction of Syariah Court

(ii) It is confined to the persons and subject matters listed in the State List; and

(iii) It must be provided for under the relevant state legislation. Hotel, Bar & Restaurant Workers [1983] 1 MLJ 175). Court but the party appearing before it is not, the matter cannot be brought before the Syariah Court. It is trite that the Syariah Court has no jurisdiction over non-Muslim parties and non-Muslim parties have no locus before the Syariah Court. The 42 conundrum presented itself when one of the parties being a non-Muslim was highlighted in Latifah (supra).:- “…. If one of the parties is not a Muslim such an application to the Syariah Court cannot be made. If the non-Muslim party is the would-be Plaintiff, he is unable even to commence proceedings in the Syariah Court. If the non-Muslim party is the would-be defendant, he would not be able to appear to put up his defence.” Court is Muslim but the subject matter is not within the exclusive purview of the court, the Syariah Court likewise has no jurisdiction over the matter. In Sukma Darmawan (supra), the Appellant was convicted by a civil court for sodomy, an offence under both federal and syariah law. The Appellant contended that he ought to have been tried by the Syariah Court, since the parties involved were Muslims and the offence was triable by the Syariah Court. The Federal Court rejected the Appellant’s contention. In view of the jurisdiction conferred by law upon civil courts to try Penal Code Offences, to exclude the jurisdiction of civil courts because the accused is a Muslim would lead to “grave inconvenience and absurd result.” Azahar Mohamed FCJ, “The Impact of Parallel Legal Systems on Fundamental Liberties in Multi-Religious Societies” 43 Journal of the Malaysian Judiciary July [2016] JMJ 57). In fact, this dichotomy has long been resolved by the Federal Court in Che Omar Che Soh v. Public Prosecutor [1988] 2 MLJ 55. After tracing the history of British intervention in the Malay States, Salleh Abas LP summarised the notion of Islam as understood by the framers of the Constitution :- “…. The religion of Islam became separated into two separate aspects, viz the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty … By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat …. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.” 44 legality should be preserved.” (see A Harding, Law, Government and the Constitution in Malaysia (Kuala Lumpur : Malayan Law Journal, [1966] at 137). Interpretation of Article 121 (1A) Islamic Law including those relating to judicial review, a close scrutiny of the same is in order. Federal Constitution and vested with inherent judicial powers;

whereas the latter are creatures of state legislation under the State List, and akin to inferior tribunals.

75. Parallels may be drawn with the scheme in Canada, where section 96 provides for the appointment of judges to the courts of general jurisdiction. Section 92(14) allows provincial legislatures exclusively to make laws in respect of the administration of justice in the provinces. The ambit and limits of section 92(14) were considered by the Supreme Court in 45 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 (at [25]-[27]):- “First, particular constitutional grants of power must be read together with other grants of power so that the constitution operates as an internally consistent harmonions whole. Thus section 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but with respect to other power conferred by the Constitution. In this case, this requires us to consider s.96 of the Constitution Act,

1867. Second, the interpretation of s.92(14) must be consistent not only with other express terms of the Constitution, but with requirements that ‘flow by necessary implication from those terms:’ British Columbia v. Imperial Tobacco Canada Ltd 2005 SCC 49, [2005] 2 SCR 473 at para 66, per Major J. As this Court has recently stated, ‘the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding and application of the text;’ Reference re Senate Reforms 2014 SCC 32 [2014] 1 S.C.R. 704 para 26. It follows that in determining the power conferred on the province over the administration of justice, including the imposition of hearing fees, by s.92(14), the court must consider not only the written words of that provision, but how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text.” (Emphasis added) 46

76. The significance of judicial review as part of basic structure as outlined in the previous paragraphs above are similarly countenanced in Canada, in that :-

(ii) Judicial power cannot be conferred on another body which does not enjoy the same level of constitutional protection.

77. In fact Canadian courts have developed a two-part test in determining the constitutionality of an exclusive grant of jurisdiction to provincially-created court or tribunal. The test was outlined by the Supreme Court in MacMillan Bloedel Ltd v. Simpson [1995] 4 SCR 725 (at [9]):- “…I find that our jurisprudence on this question mandates a two-part analysis. After reviewing our s.96 jurisprudence, therefore, I will first consider whether this grant of jurisdiction can be made and next consider whether the superior court’s jurisdiction can be ousted. The first inquiry involves examining the nature of the contempt power; the second necessitates elaboration of the inherent jurisdiction of superior courts and recognition of their importance to our constitutional structure.”

78. We will now elaborate on the first stage. STAGE 1 : Grant of Jurisdiction to inferior court The jurisdiction of a superior court cannot be vested in a body not constituted in accordance with the provisions protecting the independence of its judges. In Toronto 47 Corporation v. York Corporation [1938] AC 415, the Privy Council considered whether the jurisdiction of a superior court can validly be vested in the Ontario Municipal Board, a creature of provincial legislation. Lord Atkin held (at 425- 426):- The first question touches a matter of first importance to the people of Canada. While legislative power in relation to the constitution, maintenance and organization of Provincial Courts of Civil Jurisdiction, including procedure in civil matters, is confided to the Province, the independence of the judges is protected by provisions that the judges of the Superior, District, and County Courts shall be appointed by the Governor-General ( s. 96 of the British North America Act, 1867 ), that the judges of the Superior Courts shall hold office during good behaviour ( s. 99 ), and that the salaries of the judges of the Superior, District, and County Courts shall be fixed and provided by the Parliament of Canada (s. 100 ). These are three principal pillars in the temple of justice, and they are not to be undermined. Is, then, the Municipal Board of Ontario a Superior Court, or a tribunal analogous thereto? If it is, inasmuch as the Act of 1932 which sets it up observes none of the provisions of the sections above referred to, it must be invalidly constituted. (Emphasis added)

79. The Privy Council clarified that an administrative body may be validly constituted for the purposes of administrative functions, but cannot receive judicial authority, but may nevertheless be validly constituted for the purposes of administrative functions (at 427):- 48 “It is difficult to avoid the conclusion that whatever be the definition given to Court of Justice, or judicial power, the sections in question do purport to clothe the Board with functions of a Court, and to vest in it judicial powers. But in making that assumption, their Lordships are not prepared to accept the further proposition that the Board is therefore for all purposes invalidly constituted. It is primarily an administrative body ; so far as legislation has purported to give it judicial authority that attempt must fail; It is not validly constituted to receive judicial authority so far, as the Act purports to constitute the Board a Court of Justice analogous to a Superior, District or Country Court it is pro tanto invalid ; not because the Board is invalidly constituted, for as an administrative body its constitution is within the Provincial powers : nor because the Province cannot give the judicial powers in question to any court, for to a court complying with the requirements of ss 96, 99 and 100 of the B.N.A. Act the Province may entrust such judicial duties as it thinks fit; but because to entrust these duties to an administrative Board appointed by the Province would be to entrust them to a body not qualified to exercise them by reason of the sections referred to. The result is that such parts of the Act as purport to vest in the Board the functions of a Court have no effect.” (Emphasis added)

80. A similar approach was adopted in Singapore. In Mohammed Faizal (supra) (at [17]) the High Court held that:- “Although Article 93 of the Singapore Constitution sets out two different sources of judicial power, what is important to note for present purposes is that the specific wording used in this Article has the effect of vesting the judicial power of Singapore exclusively in the Supreme Court and the Subordinate Courts 49 and not in any entity which is not a ‘court’ being, at common law, an entity with certain characteristics. The reference to “court” in Article 93 would include any statutory body or tribunal having the characteristics of a court. All Commonwealth Constitutions appear to follow this practice of vesting the judicial power exclusively in the courts. Reference may be made to the decision of the Privy Council in Hinds … In the Singapore context, the exclusivity of the judicial power is safeguarded by the provisions in Part VIII of the Singapore Constitution which are designed to secure the independence of our judiciary.” (Emphasis added) STAGE 2 : Ousting of core jurisdiction of Superior Court

81. The core jurisdiction of the Superior Courts cannot be removed. (MacMillan Bloedel (supra) at ([13]):- “Essential historic functions of superior courts cannot be removed from those courts and granted to other adjudicative bodies to meet social policy goals if the resulting transfer contravenes our Constitution.”

82. In stage 2 of the analysis, the court must first consider the contents of the ‘core’ or ‘inherent’ jurisdiction of superior courts. Noting the historic basis of the Canadian system in the English judicial system, the Supreme Court in MacMillan Bloedel found that the superior courts of general jurisdiction are as much the cornerstone of the judicial system in Canada as it is in England. The Court expressed strong approval for the elucidation of ‘inherent jurisdiction’ 1 H Jacob, ‘The 50 inherent jurisdiction of the Court’ (1970); 23 Current Legal Problem. (at [29]); “Regarding the basis of inherent jurisdiction Jacob states (at p.27): ”…. The jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called ‘inherent.’ This description has been criticized as being ‘metaphysical’ [cite omitted] but I think nevertheless that it is apt, to describe the quality of this jurisdiction. For the essential character of a superior court of law necessarily involves that it be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. While inherent jurisdiction may be difficult to define, it is of paramount importance to the existence of a superior court. The full range of powers which comprise the inherent jurisdiction of a superior court are, together, its ‘essential character’ or ‘immanent attribute.’ To remove any part of this core emasculates the court, making it something other than a superior court.” (Emphasis added)

83. Thus laws impinging on or transferring out the core jurisdiction of superior courts have been held unconstitutional in a number 51 of cases. These cases are helpfully summarized by in Trial Lawyers Association of British Columbia (at [33]-[34]):- “The jurisprudence under s.96 supports this conclusion. The cases decided under s.96 have been concerned either with legislation that purports to transfer an aspect of the core jurisdiction of the Superior Court to another decision-making body or with privative clauses that would bar judicial review : Re Residential Tenancies Act, 1979 [1981] 1 S.C.R. MacMillan Bloedel; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. The thread throughout these cases is that laws may impinge on the core jurisdiction of the Superior Courts by denying access to the powers traditionally exercised by those courts. In Residential Tenancies, the law at issue unconstitutionally denied access to the Superior Courts, by requiring that a certain class of cases be decided by an administrative tribunal. In Crevier, the law at issue unconstitutionally denied access to the Superior Courts by imposing a privative clause excluding the supervisory jurisdiction of Superior Courts. In MacMillan Bloedel, the legislation at issue unconstitutionally barred access to the superior courts for a segment of society – young persons – by conferring an exclusive power on youth courts to try youth for contempt in the face of superior courts. This court, per Lamer CJ, relied on Crevier, concluding that “[it] establishes …. that powers which are ‘hallmarks of Superior Courts’ cannot be removed from those courts” (MacMillan Bloedel at para 35).” (Emphasis added) 52

84. Thus based on the principles distilled from the above discussion, the effect of Article 121(1A) in the Malaysian context can be outlined as follows:-

1. The Federal Constitution is premised on certain underlying principles. In a Westminster model Constitution, these principles include the separation of powers, the rule of law, and the protection of minorities.

2. These principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed.

3. The role of the civil courts as established by virtue of Article 121 is fundamental to these principles. The judicial power of the civil courts is inherent in the basic structure of the Constitution.

4. Clause (1A) of Article 121 of the Federal Constitution recognises the power of the Syariah Courts when it exercises its power within jurisdiction.

5. Article 121 (1A) must be interpreted against the background of the foundational principles and other provisions in the Constitution.

6. The Canadian two-stage test may be applied to determine whether Article 121 (1A) can have the effect of granting jurisdiction to the Syariah Courts in judicial review applications to the exclusion of the civil courts :- 53 a. Applying stage 1 of the test, judicial power cannot be vested in the Syariah Courts, because such courts are not constituted as a “superior court” in accordance with the constitutional provisions safeguarding the independence of judges in Part IX. b. Applying stage 2 of the test, judicial power cannot be removed from the civil courts, because such powers are part of the core or inherent jurisdiction of the civil courts.

7. The present appeals arose from an application for judicial review of the administrative actions of an executive body (the Registrar of Muallafs) in exercise of its statutory powers (under the Perak Enactment). Regardless of the label that may be applied to the subject matter, the power to review the lawfulness of executive action rests solely with the civil courts.

85. Therefore, viewed in its proper constitutional context, the effect of Article 121 (1A) on the jurisdiction of the civil courts is apparent. Article 121 (1A) should not be dismembered and then interpreted literally and in isolation of, but construed together with, Article 121 (1), for a construction consistent with the smooth working of the system (see Sukma Darmawan (supra)).

86. Thus the amendment inserting clause (1A) in Article 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Syariah Courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not 54 downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution. The purport and effect of Article 121 (1A) is eloquently explained by Harding (supra) as follows:- “The amendment does not purport to oust the jurisdiction of the High Court to review decisions of the Syariah Courts. It merely says, in effect, that the ordinary courts cannot exercise the Syariah Court’s jurisdiction, a position which it should be noted, applies to any inferior jurisdiction; it is indeed a cardinal principle of judicial review that the court cannot substitute its decision for that of the inferior jurisdiction whose decision is reviewed. It does not therefore seem possible that the Syariah Courts, by this small amendment, have been converted into a totally separate legal system …. As things stand the civil courts exercise the power of judicial review and this is of course part of the judicial power. Nothing in clause 1A attempts to interfere with this proposition …. For these reasons it seems that clause 1A was enacted for the avoidance of doubt. It seeks to ensure that decisions made within jurisdiction by the Syariah Courts are not reversed by the civil courts. The qualification ‘made within jurisdiction’ is important; the ordinary courts can still decide whether a given decision is within jurisdiction, just as they can with any inferior court. In this sense the primacy of the civil courts has not been disturbed.” (Emphasis added)

87. The operation of Article 121 (1A) in practice illustrates this proposition. Clause (1A) does not remove the jurisdiction of civil courts where constitutional interpretation is concerned. Per Abdul Hamid Mohamed FCJ in Latifah (supra): 55 “Interpretation of the Federal Constitution is a matter for this court, not the syariah court.” This is the case even where the determination of Islamic law is required for the purpose of such interpretation, as firmly reiterated by the Federal Court in Abdul Kahar b. Ahmad v. (Kerajaan Malaysia, intervener) and Anor [2008] 2 MLJ 617 :- “Nowhere in the Constitution does it say that interpretation of the Constitution, Federal or State is a matter within the jurisdiction of the Syariah Court to do. The jurisdiction of Syariah Courts are confined to the limited matters enumerated in the State List and enacted by the respective state enactments …. Nowhere in the Constitution is there a provision that the determination by Islamic law for the purpose of interpreting the Federal Constitution is a matter for the State Legislature to make law to grant such jurisdiction to the Syariah Court. Hence, there is no such provision in the State Enactments to grant such jurisdiction to Syariah Courts. In fact, it cannot be done.”

88. In Lina Joy Lwn. Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] MLJ 585, Richard Malanjum Chief Judge Sabah and Sarawak expressed a similar view in his dissenting judgment:- “Since constitutional issues are involved especially on the question of fundamental rights as enshrined in the Constitution it is of critical importance that the civil superior courts should not decline jurisdiction by merely citing Art 121(1A). In my view the said article only protects the Syariah Court in matters within their jurisdiction which does not include the 56 interpretation of the provisions of the Constitution. Hence when jurisdictional issues arise civil courts are not required to abdicate their constitutional function.”

89. Clause (1A) also does not remove the jurisdiction of civil courts in the interpretation of legislation. This is the case even in relation to legislation enacted for the administration of Muslim law, as was held in Dalip Kaur v. Pegawai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 :- “The new Cl. 1A of Art 121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah Courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the states enacted for the administration of muslim law …. If there are clear provisions in the State Enactment the task of the civil court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment.” (Emphasis added)

90. Neither does clause (1A) exclude the jurisdiction of civil courts in determining the constitutionality of state legislation for the establishment of Syariah Courts. Where state laws infringe on matters within the Federal List in the Constitution, the Federal Court explained in Latifah (at [53]) that :- “In such a situation the civil court will be asked to apply the provision of cl (1A) of art 121 to exclude the jurisdiction of the civil court. The civil court should not be influenced by such an argument. Clause (1A) of art 121 was not introduced for the 57 purpose of ousting the jurisdiction of the civil courts. The question to be asked is : Are such laws constitutional in the first place? And the constitutionality of such laws are a matter for the Federal Court to decide – Article 128.” (Emphasis added)

91. Further, clause (1A) does not prevent civil courts from continuing to exercise jurisdiction in determining matters under federal law, notwithstanding the conversion of a party to Islam. The Federal Court in Subashini (supra) and recently in Viran a/l Nagappan v. Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585 confirmed the jurisdiction of civil courts in determining divorce and custody matters under the LRA in relation to parties who contracted a civil marriage but one of whom has since converted to Islam.

92. As the above authorities demonstrate, the approach that Article 121 (1A) excludes or oust the jurisdiction of civil courts (see for instance Subashini (at [23]) and Mohamed Habibullah bn Mahmood v. Faridah bte Dato’ Talib [1992] 2 MLJ 793 (at 800), is flawed. Article 121 (1A) does not constitute a blanket exclusion of the jurisdiction of civil courts whenever a matter relating to Islamic law arises. 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).

93. The confusion as to the purport of Article 121 (1A) has now been laid to rest by the lucid pronouncement of Raus Sharif PCA (as his Lordship then was) in Viran (supra):- 58 “It is clear that art 121 (1A) was introduced not for the purpose of ousting the jurisdiction of the civil courts. It was introduced in order to avoid any conflict between the decision of the Syariah Courts and the civil courts which had occurred in a number of cases before.” Issue of Conversion

94. At the risk of repetition, it has been shown that there have been instances where the Federal Court has held that questions of conversion and the determination of whether a person is a Muslim or not fall under the exclusive jurisdiction of the Syariah Court. In Soon Singh (supra), the State Legislation in question conferred jurisdiction on the Syariah Courts to adjudicate on matters relating to conversion to Islam. The court held that conversion out of Islam (apostasy) could be read also to fall within the jurisdiction of the Syariah Courts by necessary implication, on the basis that :- “….. the determination of a Muslim convert’s conversion out of Islam involves inquiring into the validity of his purported renunciation of Islam under Islamic law in accordance with hukum syarak (Dalip Kaur). As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the Syariah Courts are the experts and appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the Syariah Court, by implication conversion out of Islam should also fall under the jurisdiction of the same courts.” 59

95. The notion that conversion out of Islam falls within the jurisdiction of Syariah Courts was reiterated by the majority in Lina Joy. By an originating summons, the plaintiff, who had renounced Islam for Christianity applied to the High Court for various declaratory orders on the basis of clause (1) of Article 11 of the Federal Constitution, which guarantees to every person 'the right to profess and practise his religion'. The plaintiff also sought an order that the Director-General of the National Registration Department enters her name in the registry book as having converted out of Islam.

96. The majority in Lina Joy held that apostasy was within the jurisdiction of the Syariah Court. The majority also took the view that common sense dictates that a person professing a particular religion would be bound by the laws and practices of that religion, including in its renunciation. However the court made no final determination on whether the Appellant was a Muslim or not; the court held that the jurisdiction of the Syariah Court cannot be excluded on the grounds that such jurisdiction extends only to those professing the religion of Islam.

97. Premised on the above authorities, the Federal Court in Hj. Ramli bin Abdullah v. Siti Hasnah Vangarama Abdullah & another appeal [2014] 3 MLJ 757 reaffirmed 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 Syariah Court.’ 60

98. In essence, the position taken in Siti Hasnah (supra) is that since matters of conversion involves Islamic law and practice, which are areas within the Syariah Court’s expertise, 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. It ignores the broader constitutional context in which Article 121 (1A) is framed. It is worth reiterating 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. The powers of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial power under Article 121(1). Such power is fundamentally inherent in their constitutional role as the bulwark against unlawful legislation and executive action. As part of the basic structure of the constitution, it cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation.

99. 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 present appeals

100. We now turn again to the facts of the present appeals. The Appellant’s application is for judicial review of the actions of the 61 Registrar of Muallafs in issuing the Certificates of Conversion, on the basis that the Certificates were ultra vires, contrary to, or inconsistent with certain provisions in:-

(ii) The Guardianship of Infants Act 1961; or

(iii) The Federal Constitution

101. It is not disputed that the Registrar of Muallafs was exercising a statutory function as a public authority under the Perak Enactment in issuing the said Certificates. As had been clearly manifested earlier, the jurisdiction to review the actions of public authorities, and the interpretation of the relevant state or federal legislation as well as the Constitution, lie squarely within the jurisdiction of the civil courts. This jurisdiction, which constitutes the judicial power essential in the basic structure of the Constitution, is not and cannot be excluded from the civil courts and conferred upon the Syariah Courts by virtue of Article 121 (1A).

102. We need to emphasise this. That the determination of the present appeals does not involve the interpretation of any Islamic personal law or principles. This has to be made clear. The yardstick to determine the validity of the conversion is the administrative compliance with the express conditions stated in sections 96 and 106 of the Perak Enactment, namely the utterance of the Affirmation of Faith (the Kalimah Syahadah) and the consent of the parent. The subject matter in the Appellant’s application is not concerned with the status of her children as Muslims converts or with the questions of Islamic 62 personal law and practice, but rather with the more prosaic questions of the legality and constitutionality of administrative action taken by the Registrar in the exercise of his statutory powers. This is the pith of the question at hand. (Emphasis added)

103. Since the Appellant is a non-Muslim and so has no locus to appear before the Syariah Court for the present application, the matter is now before us, seeing as the Syariah Court does not have the power to expand its own jurisdiction to choose to hear the Appellant’s application.

104. In these circumstances and in view of the views expressed, we have no difficulty in concluding that the High Court is seised with jurisdiction, to the exclusion of the Syariah Court, to hear the matter, and has rightly done so. Thus the first question is answered in the affirmative. Question 2

105. The second question is repeated here for convenience and it reads:- “Whether a child of a marriage registered under the Law Reform (Marriage & Divorce) Act 1976 (‘a civil marriage’) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State law throughout the country) before the 63 Registrar of Muallafs or his delegate may register the conversion to Islam of that child.” Proceedings in the courts below

106. The High Court held that it had jurisdiction to interpret state enactments, even those relating to the administration of Muslim law. The learned JC declared that the requirements in sections 96 and 106 of the Perak Enactment must be complied with by the Registrar of Muallafs in issuing the Certificates of Conversion. On the facts, it was undisputed that the Appellant’s children were not present before the Registrar and did not utter the two clauses of the Affirmation of Faith (the Kalimah Syahada) as required under section 96. The learned JC expressed that the repeated non-compliance with the requirement of presence to utter the Affirmation of Faith does not make such non-compliance proper. Section 101(2), which states that the certificate shall be conclusive proof of the fact stated therein, was held not to oust the jurisdiction of the court where there is patent non-compliance with the statutory requirements.

107. The Court of Appeal took a contrary view on this point. Having found that the issue of the validity of conversion fell within the jurisdiction of the Syariah Court, the Court of Appeal held that the High Court had no power to question the decision of the Registrar of Muallafs or to consider the Registrar’s compliance with the requirements in sections 96 and 106 of the Perak Enactment. Reference was made to the powers of the 64 Registrar in registering Muallafs (Muslim converts) under section 100, and the conclusiveness of the Certificates of Conversion as proof of the facts stated in section 101(2). The Court of Appeal took the position that the fact that a person has been registered in the Register of Muallafs as stated in his Certificate of Conversion is proof that the conversion process had been done to the satisfaction of the Registrar. Submissions in the Federal Court

108. It was submitted by learned Counsel for the Appellant that the only possible interpretation of sections 96 and 106 of the Perak Enactment is that both sections must be complied with, in order for a valid Certificate of Conversion to be issued for children of non-Muslim marriages. The undisputed evidence is that the conditions in section 96 were not fulfilled in this case, and that the Registrar had also failed to require the Appellant’s children to be present before him under section 100. In the circumstances, it was argued that the decision of the Registrar of Muallafs was thus ultra vires the Enactment and the certificates issued ought to be quashed. Learned Counsel further added that subsection 101 (2) of the Enactment does not oust the court’s jurisdiction in this case; the ‘conclusive evidence clause’ applies only where the certificate has been issued lawfully.

109. The submissions by the learned State Legal Adviser and the learned Senior Federal Counsel on this question are broadly similar and may be outlined as follows. Section 96 of the Perak Enactment is a general provision for conversion into Islam. 65 Subsection 106(b) is the specific provision applicable for the conversion of persons under the age of 18, for which the written consent of the parent or guardian will suffice. Further, the conclusiveness of the Certificate of Conversion issued by the Registrar is provided under subsection 101(2) of the Enactment. Since the certificate states that the persons named therein have been converted and entered in the Register of Muallafs, it follows that the process of conversion must have been done to the satisfaction of the Registrar. Any challenge to the certificates would amount to a transgression into the issue of the validity of the conversion, which lie within the exclusive jurisdiction of the Syariah Court.

110. On behalf of the Appellant’s husband, learned counsel reiterated the view that the civil High Courts do not have jurisdiction to question the validity of the Certificates of Conversion, for it is the Syariah Court that has exclusive jurisdiction to decide the status of a person as a Muslim. According to Counsel’s submissions, the issue should be brought before the Syariah Court, and persons not subject to the compulsive authority of the Syariah Court are not precluded from trying to obtain relief from the court. The Perak Enactment

111. We have explained that the civil High Court is vested with jurisdiction to the exclusion of the Syariah Courts in the present case, for reasons elaborated in the above section. We will now deal with the remaining issues of whether both sections 96 and 106(b) must be complied with for the conversion of children, 66 and whether section 101(2) of the Perak Enactment has the effect of excluding the High Court’s power to review the issuance of the Certificates of Conversion by the Registrar of Muallafs.

112. The relevant provisions in the Perak Enactment are these. Section 100 provides for the power of the Registrar in respect of the Registration of Muallafs :- REGISTRATION OF MUALLAFS 100 (1) A person who has converted to the religion of Islam may apply to the Registrar in the prescribed form for registration as a muallaf.

(2) If the Registrar is satisfied that the requirements of section 96 have been fulfilled in respect of the applicant, the Registrar may register the applicant’s conversion to the religion of Islam by entering in the Registrar of Muallafs the name of the applicant and other particulars as indicated in the Registrar of Muallafs.

(3) …..

(4) ….

(5) If the Registrar is not satisfied that the requirements of section 96 have been fulfilled in respect of the applicant, he may permit the applicant to utter, in his presence or in the presence of any of his officers, the two clauses of the Affirmation of Faith in accordance with the requirements of that section.

113. In registering an applicant’s conversion to Islam, the Registrar must first be satisfied that the requirements of section 96 have been fulfilled (s.101(2)), otherwise the Registrar may permit 67 the applicant to utter the Affirmation of Faith in accordance with the requirements of that section (s.101 (5)). The requirements for a valid conversion are prescribed in section 96 as follows:- REQUIREMENT FOR CONVERSION TO THE RELIGION OF ISLAM 96(1) The following requirements shall be complied with for a valid conversion of a person to Islam : a) The person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith ; b) At time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah;” and c) The utterance must be made of the person’s own free will.

(2) A person who is incapable of speech may, for the purpose of fulfilling the requirement of paragraph (1)(a), utter the 2 clauses of the Affirmation of Faith by means of signs that convey the meaning specified in paragraph (b) of the subsection.

114. Section 106 provides additional conditions for the conversion of persons under the age of 18 :- CAPACITY TO CONVERT TO THE RELIGION OF ISLAM

106. For the purpose of the Part, a person who is not a Muslim may convert to the religion of Islam if he is of sound mind and–

115. The issuance and the effect of the Certificate of Conversion issued by the Registrar of Muallafs are set out in section 101:- CERTIFICATE OF CONVERSION TO THE RELIGION OF ISLAM 101 (1) The Registrar shall furnish every person whose conversion to the religion of Islam has been registered a Certificate of Conversion to the Religion of Islam in the prescribed form.

(2) A Certificate of Conversion to Religion of Islam shall be conclusive proof of the facts stated in the Certificate. LEGAL LIMITS OF STATUTORY POWER

116. The Registrar of Muallafs is appointed by the Majlis Agama Islam, a body corporate established pursuant to the Perak Enactment, to maintain the Register of Muallafs (section 99 of the Perak Enactment). The issuance of Certificates of Conversion by the Registrar is an exercise of a statutory power under the Enactment. At the outset, it is axiomatic that any exercise of legal power, including discretionary power, is subject to legal limits. In the celebrated pronouncement of Raja Azlan Shah CJ (as His Royal Highness then was) in Pengarah Tanah Dan Galian, Wilayah Persekutuan supra (at 148) :- “Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every 69 discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen; so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasise what has often been said before, that ‘public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place,’ (per Danckwertts L.J. in Bradbury v. London Borough of Enfield [1967] 3 All ER 434 442).”

117. In that case, the Federal Court held that the Land Executive Committee, being a creature of statute, possess only such power as conferred by Parliament; “therefore when a power vested in it is exceeded any act done in excess of the power is invalid as being ultra vires” (at 148).

118. Thus it is clear to us that the boundaries of the exercise of powers conferred by legislation is solely for the determination by the courts. If an exercise of power under a statute exceeds the four corners of that statute, it would be ultra vires and a court of law must be able to hold it as such (see the Singapore Court of Appeal decision in Chng Suan Tze v. Minister for Home Affairs & Ors & Other appeals [1988] s SLR (R) 525 at [86]. In Tan Seet Eng (supra) Sundaresh Menon CJ in the Singapore Court of Appeal discussed the legal limits of power (at [1]):- 70 “However, one of its core ideas [of the Rule of Law] is the notion that the power of the state is vested in the various arms of government and that such power is subject to legal limits. But it would be meaningless to speak of power being limited were there is no recourse to determine whether, how, and in what circumstances those limits had been exceeded. Under our system of government, which is based on the Westminster model, that task falls upon the Judiciary. Judges are entrusted with the task of ensuring that any exercise of state power is done within legal limits.” Ouster of Jurisdiction

119. Section 101 of the Perak Enactment operates as a finality clause. It declares that the decision of the Registrar of Muallafs is final.

120. The power of the judiciary to ensure the legality of executive action is consistent with its constitutional role in a framework based on the separation of powers, which as discussed above, forms the basic structure of the constitution. As civil courts are courts of general jurisdiction, the exclusion of their jurisdiction is not to be readily inferred. The Federal Court held in Metramac Corp. Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v. Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 (at [36]):- “The rule that the exclusion of jurisdiction of civil courts is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, 71 unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the state.”

121. Indeed, the courts have adopted a robust approach in reviewing the legality of decisions by public authorities even in the face of express ouster clauses. The locus classicus in this regard is Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147, wherein the House of Lords held that an ouster clause in the Foreign Compensation Act 1950 did not preclude the courts from reviewing the decisions of the Foreign Compensation Commission on the basis of jurisdiction. An authority would be stepping outside its jurisdiction in various ways, for instance where the conditions precedent to jurisdiction were not fulfilled, or where the tribunal took into account matters which it was not directed to take into account. Any such lack of jurisdiction would cause the purported decision of the authority to be a nullity. Per Lord Pearce (at 194 – 195):- “Such tribunals must, however, confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament. It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament. Again, if its instructed to give relief wherever on inquiry it finds that two stated conditions are satisfied, it cannot alter or restrict its jurisdiction by adding a third condition which has to be satisfied before it will give relief. It is therefore, for the courts to decide the true 72 construction of the statute which defines the area of a tribunal’s jurisdiction. This is the only logical way of dealing with the situation and it is the way in which the courts have acted in a supervisory capacity.” (Emphasis added)

122. The approach in Anisminic has been adopted by the Federal Court. The case of Hotel Equatorial (M) Sdn Bhd v. National Union of Bar & Restaurant Workers & Anor [1984] 1 MLJ 363 concerned the effect of section 33B(1) of the Industrial Relations Act 1967, which states in no uncertain terms that “the decision of the [Industrial] Court to grant or not to grant an application under section 33A(1) shall be final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called in question in any court.” The Federal Court nevertheless held the clause not to preclude the High Court’s power of judicial review (at 368):- “It is common ground that such a clause will not have the effect of ousting the inherent supervisory power of the High Court to quash the decision by certiorari proceedings if the Industrial Court has acted without jurisdiction or in excess of the limits of its jurisdiction or if it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.”

123. So too in the case of Menteri Sumber Manusia v. Association of Bank Officers, Peninsular Malaysia [1999] 2 MLJ 337, the Federal Court held that judicial review was not precluded by the privative or ouster clause in section 9(b) of the Industrial Relations Act 1967, which states that “A decision 73 of the Minister under subsection (5) shall be final and shall not be questioned in any court.” The position is succinctly put by Wade and quoted with approval by the Federal Court (at 355):- “The last word on the question of legality rests with the courts and not with the administration.” The present appeals

124. The legal limits of the Registrar of Muallaf’s statutory power to issue Certificates of Conversion are prescribed in the Perak Enactment. From a plain reading of the relevant sections, the requirements in section 96 and section 106 are cumulative : both must be complied with. Section 96 is phrased in mandatory terms, spelling out the requirements that “shall be complied with for a valid conversion of a person to Islam.” Nowhere in that section or anywhere else in the Perak Enactment was it suggested that the section 96 requirement may be dispensed with for any category of applicants; nor does the Enactment confer any discretion upon the Registrar of Muallafs to dispense with the requirement in respect of an applicant under the age of 18. In fact the provisions of section 100 sets out the procedure clearly : if the section 96 requirement is fulfilled in respect of an applicant, he may proceed to register the applicant’s conversion; if section 96 is not fulfilled, he may permit the applicant to utter the two clauses of the Affirmation of Faith in his presence or that of his officers, “in accordance with the requirements of that section,” i.e. to ensure that section 96 is fulfilled. 74

125. The undisputed evidence is that the Appellant’s children did not utter the two clauses of the Affirmation of Faith and were not present before the Registrar; of Muallafs before the Certificate of Conversion was issued. The requirement in section 96(1) has not been fulfilled. The issuance of the Certificates despite the non-fulfilment of the mandatory statutory requirement is an act which the Registrar had no power to do under the Enactment. In so doing, the Registrar had misconstrued the limits of his power and acted beyond its scope. In this regard, the minority judgment in the appeals (per Hamid Sultan JCA) gave a strong dissent.

126. In our view therefore, based on the principles in Anisminic (supra), the lack of jurisdiction by the Registrar renders the Certificates issued a nullity. Section 101(2) cannot have the effect of excluding the court’s power of judicial review over the Registrar’s issuance of the Certificate. It is settled law that the supervisory jurisdiction of courts to determine the legality of administrative action cannot be excluded even by an express ouster clause. It would be repugnant to the rule of law and the judicial power of the courts if the Registrar’s decision is immune from review, even in light of uncontroverted facts that the Registrar had no jurisdiction to make such a decision. (Emphasis added)

127. In any case, the language of section 101(2) itself does not purport to oust judicial review. The section merely states that a Certificate of Conversion to the religion of Islam shall be conclusive proof of the facts stated therein. The facts stated 75 in the Certificate are that the persons named have been converted to the religion of Islam, and that their names have been registered in the Registrar of Muallafs. In the instant appeals, the fact of the conversion or the registration of the Appellant’s children are not challenged. What is challenged is the legality of the conversion and registration.

128. At this point, it may be instructive to note that Islam enjoins two fundamental principles:

1. Al Adl Justice

2. Al Syura Consultation There was no consultation if the reverting parent has absolute right to change the original religion of the children without consulting the non reverting parent.

129. Due process of justice will only be upheld if both parents are given the right to be heard by a single competent authority.

130. The reverting parent should demonstrate true Islamic character and sincere niyyat for conversion, hence children or the non-converting spouse will be attracted to the Deen without duress or coercion.

131. The Respondents have cited the Court of Appeal decision in Saravanan a/l Thangathoray v. Subashini a/p Rajasingam [2007] 2 MLJ 705 in support of their contention that section 101(2) precludes the court from reviewing the Registrar’s issuance of the Certificate. Pursuant to section 112 of the Administration of the Religion of Islam (State of Selangor) 76 Enactment 2003, which is equipollent with section 101(2) of the Perak Enactment, the Court of Appeal held that the date of the husband’s conversion stated in the Certificate has been conclusively determined. As such, it is not open for the civil court to question the date stated.

132. However, the Court of Appeal decision on this point failed to be affirmed on appeal to the Federal Court. In Subashini (supra) , the Federal Court, in considering the conclusiveness of the date of conversion as stated in the Certificate, highlighted the absence of evidence pointing against the date of the husband’s conversion (at [69]):- “There is nothing in the evidence to warrant even a suspicion that the PERKIM certificates were issued fraudulently, in that, for example, the husband and Dharvin did not convert at PERKIM Headquarters as stated in the Certificates, or that the conversion was not on 18 May 2006, or that the husband, after knowing of the wife’s petition dated 4 August 2006, in order to ensnare the wife in the proviso to s.51(1), contrived to have PERKIM and the Registrar of Muallafs create evidence that he had converted on 18 May 2006. The evidence must be taken at its face value as genuine and as good evidence of the conversion of the husband on 18 May 2006. ”

133. The present appeals are easily distinguishable from the facts of Subashini (supra). As explained above, the crux of the Appellant’s challenge is against the legality of the Registrar’s act in issuing the Certificate of Conversion, not the facts stated in the Certificate. Further, there is uncontroverted evidence that the requirement in section 96 was not complied with in 77 respect of the Applicant’s children prior to their conversion. In these circumstances, the contention that since the certificate conclusively states that the Registrar had registered the conversion of the children, the process of conversion must have been done to the satisfaction of the Registrar in accordance with the Enactment, is untenable at best.

134. Nevertheless, the Federal Court in Subashini (supra) went on to hold that despite section 112(2), the wife is not precluded from establishing a different date for the husband’s conversion (at [70]-[71]):- “But what s.112(2) of the Selangor Enactment says is that the Certificate of Conversion “shall be conclusive proof of the facts stated in the Certificate.” It means that the fact stated in it that the husband converted to Islam on 18 June 2006 cannot be disputed. But it does not mean that it cannot be shown that although on 18 June 2006 the husband converted to Islam, presumably in a formal ceremony at PERKIM in the presence of witnesses, he had even earlier converted to Islam by reciting the Affirmation of Faith in accordance with s.107. I therefore feel that, despite appearances from the submissions, this court ought not to decide the question of the date of conversion as a matter of choice between the two dates and that the wife ought to be given a chance in the trial of the petition to prove her belief that the husband had converted to Islam in February 2006 or earlier.”

135. As such, the Respondent’s reliance on section 101(2) of the Perak Enactment and the Court of Appeal decision in 78 Saravanan is wholly misconceived. For the reasons stated above, we answer the second question in the affirmative. Question 3

136. The third question in these appeals reads as follows:- “Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a Certificate of Conversion to Islam can be issued in respect of that child ?” Proceedings in the courts below

137. The High Court considered the constitutionality of the conversion of a child to civil marriage to Islam by a converted parent without the consent of the other non-converting parent. The word ‘parent’ in the English version of Article 12(4) is understood by the learned JC to cover both father and mother, for “it envisages and enjoins parents to act as a united whole in unison.” The learned JC opined that sense and sensibility require that where parents cannot agree on the child’s religious upbringing, the status quo should be maintained until the child reaches the age of majority. However, the learned JC held that he was bound by the obiter statements of the Federal Court in Subashini to the effect that under Article 12(4) either parent has the right to convert a child to the marriage to Islam.

138. The High Court preferred an interpretation of Article 12(4) and the Perak Enactment which is consistent with the other fundamental provisions in the Constitution, namely Articles 5, 8 and 11. On the learned JC’s view, the interpretation of Article 79 12(4) should also be consistent with international norms and conventions vesting equal rights in both parents, such as the Universal Declaration of Human Rights (UDHR), the Convention of the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It was concluded that the unilateral conversion of minor children to Islam by one parent without the consent of the other is unconstitutional. By depriving the Appellant and her children of the right to be heard prior to the conversion, the conversion was in breach of natural justice.

139. The decision of the High Court on this point was reversed by the Court of Appeal. Following the Federal Court decision in Subashini which involved a similar complaint, the Court of Appeal held that the word ‘parent’ in Article 12(4) means a single parent. Article 12(4), the Court of Appeal explained, must not be read as entrenching the right to a child’s choice of religion in both parents, and the exercise of one parent’s right thereunder does not mean a deprivation of another parent’s right to profess and practice their religion under Article 11. With regard to international norms and convention, the Court of Appeal emphasised that such conventions do not form part of the local law unless incorporated. According to the Court of Appeal, it was not for the court to pervert the language of the Constitution in favour of any legal or constitutional theory, or to determine whether an Act contravenes principles of international law. Submissions in the Federal Law 80

140. Learned Counsel for the Appellant submitted that a purposive reading of section 106(b) of the Perak Enactment should be preferred. The section, it was submitted, should be interpreted in the context of the Federal Constitution, the Guardianship of Infants Act, 1961 and international conventions. Counsel argued that the word ‘parent’ in Article 12(4) should be read with the Eleventh Schedule of the Constitution, which provides for singular terms to include the plural. Articles 3, 5, 8 and 11 were asserted to contain the right of a mother to withhold her consent to a unilateral change in her child’s religion. Counsel also referred to sections 5 and 11 of the Guardianship of Infants Act, which provided for equal guardianship rights between parents. In the circumstances, it was argued that the words ‘ibu atau bapa’ in section 106(b) of the Perak Enactment should be read to require both parents’ consent for the conversion of a child. The Federal Court is urged to depart from the decision in Subashini.

141. The Respondents assert the right of one single parent to convert a child. Common points were raised by learned Counsel for the Respondents; Article 12(4) uses the word ‘parent’ in a singular sense, and has been interpreted as such by the Federal Court in a number of cases including Subashini. In addition, the learned State Legal Adviser noted that the national language translation of Article 12(4) refers to ‘ibu atau bapa’ in the singular and contended that the national language version is the authoritative text pursuant to Article 160B. The learned State Legal Adviser and learned Counsel for the Appellant’s husband further submitted that Article 8 is 81 not violated, for the right to convert the child applies whether the converting spouse is the husband or the wife. It was also contended that reliance cannot be placed on the Guardianship of Infants Act, which is expressly prohibited from application to Muslims.

142. The central contention in relation to this question involves around the interpretation of Article 12(4) of the Federal Constitution. The English version of Article 12(3) and (4) read as follows:- Article 12(4) of the Federal Constitution

12. Right in respect of education

(1) …..

(2) …..

(3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.

(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian. (Emphasis added)

143. The pertinent provision in the Eleventh Schedule, read together with Article 160(1), provides that in interpreting the Constitution :- Construction of singular or plural – words in the singular include the plural, and words in the plural include to singular. 82

144. Applying the guide to interpretation to Article 12(4), the position is fairly clear : the singular word ‘parent’ includes the plural ‘parents.’ The religion of the minor child is to be decided by his ‘parent’ or ‘parents’ as the case may be.

145. However, the formulation in Article 12(4) is differently worded in the national language translation of the Federal Constitution, which reads as follows:-

(4) Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya. (Emphasis added)

146. The phrase ‘ibu atau bapa’ or ‘his father or mother’ denotes a parent in the singular, and appears to preclude an interpretation requiring the religion to be determined by both father and mother. In light of the apparent inconsistency between the Bahasa Malaysia and English version of Article 12(4), it was contended that the former is authoritative and prevails over the latter pursuant to Article 160B of the Constitution. Article 160B states:- 160 B. Authoritative text Where this Constitution has been translated into the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or disagreeing between such national language text and the English language text of this Constitution, the national language text shall prevail over the English language text. (Emphasis added) 83

147. The High Court held that since the requisite prescription of the national language version under Article 160B above has not been effected, the authoritative or official text is the English version. The learned JC observed that the Senior Federal Counsel had not submitted otherwise. In the present appeals, despite the learned State Legal Adviser’s reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative.

148. Much emphasis has been placed on the literal meaning of the singular noun ‘parent’ in Article 12(4). The interpretive guide in the Eleventh Schedule aside, it must be recalled that the provisions of the Constitution are not to be interpreted literally or pedantically. The principles of constitutional interpretation were lucidly summarised by Raja Azlan Shah LP in Dato’ Menteri Othman b. Baginda & Anor v. Dato’ Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 (at 32):- “In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provision must be construed broadly and not in a pedantic way – ‘with less rigidity and more generosity than other Acts’ (see Minister of Home Affairs v. Fisher [1979] 3 All ER 21). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation.” 84 (Emphasis added)

149. This is particularly so in respect of Article 12(4), which falls under the fundamental liberties section in Part II of the Constitution. As was held in Lee Kwan Woh v. PP [2009] 5 MLJ 301 :- “…. The Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II.” (Emphasis added)

150. It is against the backdrop of these principles that we consider the true construction of Article 12(4). Parental Rights over Children

151. A useful summary of the history of parents’ rights over their children was given by Lord Guest in J v C [1970] AC 688 (at 692-696). In what can only be described as an illuminating review of the English authorities since 1848, Lord Guest found 85 that the rights of the father were initially predominant. The court was not to interfere with the ‘sacred right of the father,’ save in exceptional circumstances where the father has shown himself unfit to exercise them (In re Agar-Ellis [1883] 24 Ch D 317). The welfare of the infant was a subsidiary consideration; in having regard to the benefit to the infant, the court was mindful of the “natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can” (In re Curtis [1859] 28 LJ Ch 458).

152. The rights of the mother began to be recognized with the passing of the Guardianship of Infants Act 1886, under which the mother is given equal rights as the father, and the welfare of the infant given a preferential position enshrined in statute. Subsequently, under the Custody of Children Act 1891, courts would interfere with the rights of the parents in the interests of the welfare of the child. Attitudes have shifted; “the welfare of the child is becoming as important as the rights of the parents.”

153. The concept of welfare was explained by Lindley LJ in In re McGrath (Infants) [1893] 1 Ch 143:- “The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.” 86

154. Lord Guest noted that by 1925, the Guardianship of Infants Act negated any claim that the rights of either parent is superior to that of the other, and provided that the welfare of the infant shall be regarded as the first and paramount consideration.

155. The paramountcy of the child’s welfare applies in cases involving custody or religious upbringing. The case of Re : T (minors), custody : religious upbringing [1975] 2 FLR 239 involved the religious upbringing of children to a father who is a nominal member of the Church of England, and a mother who has joined Jehovah’s Witnesses. The English Court of Appeal affirmed that the welfare of the children ‘must be the first and paramount consideration of the court.’ The court’s approach was as follows (at 245-246):- “It is not for this court, in society as at present constituted, to pass any judgment on the beliefs of the mother or on the beliefs of the father. It is sufficient for this court that it should recognise that each is entitled to his or her own beliefs and way of life, and that the two opposing ways of life considered in this case are both socially acceptable and certainly consistent with a decent and respectable life ….. It seems to me that when one has, as in this case, such as conflict, all that the court can do is to look at the detail of the whole circumstances of the parents and determine where lies the true interest of the children.” (my emphasis)

156. Similar sentiments were expressed by the English Court of Appeal in Re R (A Minor) (Religions Sect)[1993] 2 FCR 525. The case involved a child whose father was a member of the 87 Exclusive Brethren, but was subsequently withdrawn from the fellowship. According to the tenets of the religious sect, the effect of; such withdrawal means that the father’s contact with any member of the Brethren was severely restricted. The child had received care from, and was brought up in the environment of members of the Brethren. The court held as follows:- “It is no part of the court’s function to comment upon the tenets, doctrines or rules of any particular section of society provided that these are legally and socially acceptable ….. The impact of the tenets, doctrines and rules of a society upon a child’s future welfare must be one of the relevant circumstances to be taken into account by the court when applying the provisions of s.1 of the Children Act 1989. The provisions of that section do not alter in their impact from one case to another and they are to be applied to the tests set out in accordance with the generally accepted standards of society, bearing in mind that the paramount objective of the exercise is promoting the child’s welfare, not only in the immediate, but also in the medium and long-term future during his or her minority.” (Emphasis added)

157. What can be discerned from the above is that, the law has come a long way from the days when one parent’s claim could be considered superior to the other. Where the child’s religion or religious upbringing is in issue, the paramount consideration for the court is to safeguard the welfare of the child, having regard to all the circumstances of the case. In so doing the court does not pass judgment on the tenets of either parent’s 88 belief. Conversion to another religion is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws. Where a decision of such significance as the conversion of a child is made, it is undoubtedly in the best interests of the child that the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums. The learned JC has described one such milieu (at [35]):- “If by ‘parent’ is meant either parent then we would have a situation where one day the converted parent converts the child to his religion and the next day the other parent realizing this would convert the child back to her religion. The same can then be repeated ad nauseam.”

158. Such a scenario would undoubtedly be detrimental to the welfare of the child. Since a literal construction of Article 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at 247). A purposive reading of Article 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.

159. The need for such a reading is more starkly apparent in factual circumstances such as the present case. In Teh Eng Kim v. Yew Peng Siong [1977] 1 MLJ 234, Raja Azlan Shah FJ (as His Royal Highness then was), explained the considerations arising when custody has been given to one parent (at 240):- 89 “Any solution to the problem presented here in which custody is given jointly to both parents as suggested by the Appellant exhibits an error in the application of principle ….. In the present case I do not think such an order would be appropriate. The children and the father are living in different jurisdictions. Since the parent who has custody has control, he or she is put in a position to become the dominant influence, fixing the daily life style of the children. An absent and inactive parent, whatever his legal relationship to the children may be, cannot have such influence. He or she cannot do it by remote control. In a situation such as the present, when one parent has been given custody, and it is working well, it is a very wrong thing for this Court to make an order which will interfere with the life style of the new family unit. Of course, one sympathise with the father, but it is one of those things which he must face when the marriage breaks up.” (Emphasis added)

160. In the present appeals, custody of the three children was granted to the Appellant by the High Court. Having exhausted all avenues to challenge the custody order, the Appellant’s husband willfully disobeyed it and refused to hand over the youngest child, Prasana Diksa, to the Appellant. He was found guilty of contempt in subsequent committal proceedings, and his appeal was struck out. A warrant of committal has been issued in respect of the husband. The Federal Court has held that having submitted to the jurisdiction of the civil court, it is not open for the husband to ignore the custody order issued by 90 the civil court (see Indira Gandhi a/p Mutho v. Ketua Polis Negara [2016] 3 MLJ at [31]-[32]).

161. Since custody of the children has been granted to the Appellant, it is the Appellant who exercises the dominant influence in their lives. To allow the other spouse to unilaterally convert the children without the consent of the Appellant would amount to a serious interference with the lifestyle of the new family unit which, following Teh Eng Kim, would be a “very wrong thing.” The Decision in Subashini

162. Reliance has been placed on the case of Subashini (supra), wherein the Federal Court held that one parent has the right to convert a child. The relevant passages are reproduced below (at [25]-[26]):- “The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtue of Articles 12(4) and 8 of the Federal Constitution and s.5 of the Guardianship of Infants Act 1961. After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Either husband nor wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in art 12(4) of the Federal Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent. In Teoh Eng Huat v. Kadhi, Pasir Mas & Anor [1990] 2 MLJ 91 300, Abdul Hamid Omar LP, in delivering the judgment of the Supreme Court, said at p.302:- In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instructions relating to any other religion than his own without the permission of the parent or guardian. Further down, His Lordship continued:- We would observe that the Appellant (the father) would have been entitled to the declaration he had asked for. However, we decline to make such declarations as the subject is no longer an infant. Therefore, art 12(4) must not be read as entrenching the right to choice of religion in both parents. That being so, art (8) is not violated as the right for the parent top convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian and as such, the argument that both parents are vested with the equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the Federal Constitution.” (Emphasis added)

163. It is first noted that the above remarks of Nik Hashim FCJ were obiter; the question need not be answered to dispose of the appeal, but was found to be of importance such that a decision by the Federal Court would be to the public advantage (see [14]). More pertinent is the reliance on the sole authority of Teoh Eng Huat v. Kadhi, Pasir Mas & Kadhi, Pasir Mas & Anor [1990] 2 MLJ 300. Teoh Eng Huat concerned a child 92 below the age of 18, who was converted to Islam of her own accord by the Kadhi of Pasir Mas. Her father sought a declaration that he, as the lawful father and guardian, had the right to decide her religion, education and upbringing. The passage quoted in Subashini should be read in context (at 302):- “Reverting to the issue before this court, the crucial question remains whether the subject, an infant at the time of conversion, had legal capacity according to law applicable to her. It is our considered view that the law applicable to her immediately prior to her conversion is the civil law. We do not agree with the learned judge’s decision that the subject although below 18 had capacity to choose her own religion. As the law applicable to the infant at the time of conversion is the civil law, the right of religious practice of the infant shall therefore be exercised by the guardian on her behalf until she becomes major. In short, we hold that a person under 18 does not have that right and in the case of non-Muslims, the parent or guardian normally has the choice of the minor’s religion. We would observe that the Appellant would have been entitled to the declaration he had asked for. However, we decline to make such declaration as the subject is no longer an infant.” (Emphasis added)

164. In our view, Teoh Eng Huat does not stand for the proposition that the word ‘parent’ in Article 12(4) means a single parent. The issue in that case was whether the right to determine an infant’s religion lies with the infant herself or her parent.

165. There was no issue as to whether the right may be exercised by one parent without the consent of the other, or both parents 93 jointly. We thus consider that the interpretation of Article 12(4) propounded in Subashini is unsupported and erroneous.

166. It is noted that in translating Article 12(4) of the Federal Constitution, it would appear that the real essence of the English version is eluded. It is literally a case of being lost in translation. The reason ‘parent’ is used in 12(4) is to provide for a situation where indeed there is only one parent of the child – e.g. a single parent situation. But where both parents exist, then the 11th Schedule shall be relied upon. Guardianship of Infants Act 1961

167. The equality of parental right in respect of an infant is expressly embodied in the Guardianship of Infants Act 1961 (GIA). Section 5 of the GIA provides :- Equality of parental rights 5.(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

(2) The mother of an infant shall have the like powers of applying to the court in respect of any matter effecting the infant as are possessed by the father. (Emphasis added) Section 11 of the GIA reads:- Matters to be considered 94

11. The court or a judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.

168. The question now is whether the application of sections 5 and 11 of the GIA to the present appeals is precluded by section 1(3) thereof, because the Appellant’s husband is a Muslim :- Short title and application 1 (3) Nothing in this Act shall apply in any state to persons professing the religion of Islam until this Act has been adopted by a law made by the Legislature of that State; and any such law may provide that - …. “

169. In this regard, parallels may be drawn between the GIA and the LRA. Section 3(3) of the LRA likewise excludes the application of the Act to non-Muslims, except in relation to divorce petitions where one party to a civil marriage has converted to Islam :- Application 3 (3) This Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which profess the religion of Islam shall be solemnized or registered under this Act : but nothing herein shall be construed to prevent a court before which a petition for divorce has been made under section 51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.

170. It is settled law that conversion does not absolve a person from his antecedent legal obligations (Kamariah bte Ali dan lain- 95 lain v. Kerajaan Negeri Kelantan dan satu lagi [2005] 1 MLJ 197 at [37]). Hence, notwithstanding the restriction in section 3(3) of the LRA, the courts have consistently affirmed their jurisdiction over parties to a civil marriage after the conversion of one partner to Islam, in granting reliefs beyond decrees of divorce. In Tang Sung Mooi v. Too Miew Kim [1994] 3 MLJ 117, the Supreme Court held that the High Court was entitled to exercise its continuing jurisdiction to grant ancillary relief to a wife in a civil marriage, whose husband converted to Islam after the marriage was dissolved. The Supreme Court found that the application of the LRA was not precluded by section 3(3) (at 123-124):- “Section 3(3) provides that the Act shall not apply to Muslims or Muslim marriages may be solemnized or registered. This clearly mean that the Act only applies to non-Muslims and non-Muslim marriages. In the present reference, it is common ground that both parties were non-Muslims who contracted a non-Muslim marriage. The High Court dissolved the said marriage and thereafter the petitioner filed an ancillary application under ss 76 and 77 of the Act. From the above facts, it is without doubt that the Act applies to them since they were non-Muslims. It follows that as the petitioner’s application under ss 76 and 77 concerned matters affecting both parties’ legal obligation as non-Muslims and incidental to the granting of the divorce, the High Court would have jurisdiction to hear and determine the ancillary proceedings despite the fact that the Respondent had converted to Islam after the divorce but before this hearing of the ancillary application. 96 ….. In the context of the legislative intent of s.3 and the overall purpose of the Act, the Respondent’s legal obligations under a non-Muslim marriage cannot surely be extinguished or avoided by his conversion to Islam.” (Emphasis added)

171. The same principle was applied by the Federal Court in Subashini (supra). The court held at ([19]):- “The husband could not shield himself behind the freedom of religion clause under Art 11(1) of the FC to avoid his antecedent obligations under the 1976 Act on the ground that the civil court has no jurisdiction over him. It must be noted that both the husband and wife were Hindus at the time of their marriage. Therefore, the status of the husband and wife at the time of registering their marriage was of material importance, otherwise the husband’s conversion would cause injustice to the unconverted wife including the children. A non-Muslim marriage does not automatically dissolve upon one of the parties conversion to Islam. Thus, by contracting the civil marriage, the husband and wife were bound by the 1976 Act in respect of divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam.” (Emphasis added)

172. The above cases were recently endorsed by the Federal Court in Viran a/l Nagappan v. Deepa a/p Subramaniam and other appeals [2016] 1 MLH 585. In holding that the civil court retained jurisdiction over the custody of the children of the civil marriage despite the ex-husband’s conversion to Islam, Raus Sharif PCA (as his Lordship then was) held at ([22]-[23]):- 97 “We have no reason to depart from the earlier decisions. We are of the same view that a non-Muslim marriage does not automatically dissolve upon one of the parties converting to Islam. The civil courts continue to have jurisdiction in respect of divorce as well as custody of the children despite the conversion of one party to Islam. In the present case, the ex-husband and the ex-wife were Hindus at the time of their marriage. By contracting the civil marriage under the LRA they are bound by its provisions in respect of divorce as well as custody of the children of the marriage.” (Emphasis added)

173. It is clear that in a situation where one party to a civil marriage has converted to Islam, the ex-spouse (i.e. the converting spouse) remains bound by their legal obligation under the LRA and the application thereof is not excluded by virtue of section 3(3). The same principle can be applied in respect of the operation of the GIA in the present appeals. The children in question are children of the Hindu marriage between the Appellant and her husband.

174. Under the GIA, both parents have equal rights in relation to the custody and upbringing of the infant children and the wishes of both are to be taken into consideration. The conversion of the husband to Islam does not alter the antecedent legal position, nor does it bring the children out of the ambit of the GIA.

175. Based on a purposive interpretation of Article 12(4) read with the Eleventh Schedule of the Federal Constitution, and on an 98 application of sections 5 and 11 of the GIA, it is concluded that the consent of both the Appellant and her husband are required before a Certificate of Conversion to Islam can be issued in respect of the children. The third Question is thus answered in the affirmative.

176. Conclusion The present appeals concern the registration of conversion of children in a non-muslim marriage to Islam under the Perak Enactment.

177. We hold that the High Court is seised with jurisdiction to exercise its supervisory power to decide on the complaints made by the Appellant against the administrative act of the Registrar of Muallafs in issuing the certificates of conversion of the Appellant’s children to Islam.

178. We find that the Registrar of Muallaf had no jurisdiction to issue the certificates of conversion in respect of the conversion of the children to Islam due to non-compliance of sections 96 and 106(b) of the Perak Enactment. In giving effect to the statutory provisions of the Perak Enactment the Court is not required to inquire into principles of Syariah law or to resolve doctrinal legal issues arising out of the matter.

179. We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside. 99

180. Insofar, as we are concerned, this decision establishes the comprehensive regime of judicial review based on standard concepts of justiciability.

181. For the avoidance of any doubts, our decision in these appeals is to have prospective effect. The doctrine of prospective overruling will apply here so as not to give retrospective effect to decisions of the courts which had already taken place prior to the date of this judgment.

182. For the reasons above stated we allow all the three appeals by the Appellant. The majority decision and the orders of the Court of Appeal are hereby set aside. We affirm the decision and orders of the High Court. There will be no order as to costs. Dated: 29 January, 2018. ZAINUN ALI Federal Court Judge Malaysia. 100 CIVIL APPEAL NO. 01(f)-17-06/2016 (A), 01(f)-18-06/2016 (A) & 01(f)-19-06/2016 (A) Counsel For the Appellant: M. Kula Segaran K. Shanmuga Fahri Azzat Aston Paiva N. Selvam S. Kiattilin Surendra Ananth Solicitors For the Appellant: Messrs.Kula & Associates Counsel For the Respondent 1 : Dato’ Rohana Abd. Malek Suhaila Haron Solicitors For the Respondent : Pejabat Penasihat Undang-Undang Negeri Perak. Counsel For the Respondent 2: Shamsul Bolhassan Dr. Arik Sanusi Yeop Johari Suzana Atan Solicitors For the Respondent 2: Jabatan Peguam Negara Malaysia. Counsel For the Respondent 3: Hatim Musa Solicitors For the Respondent 3: Messrs. Hatim Musa & Co. Watching Brief : Honey Tan Lay Ean Majlis Peguam Malaysia. Andy Yong Parti Gerakan Rakyat Malaysia. Goh Siu Lin Association of Women Lawyers.