PETALING JAYA: Calling the Federal Court verdict in the M Indira Gandhi case “probably the most important judgment” in Malaysia’s constitutional history, a retired senior judge said it confirms that the basic structure of the Federal Constitution cannot be violated through any amendment.
“It is now established beyond doubt that the basic structure doctrine is part of our law,” said former Federal Court judge Gopal Sri Ram in a statement today.
He said this meant that parliament had the power to amend the Federal Constitution but not to an extent as to violate its basic structure.
“The late Raja Aziz Addruse (former Malaysian Bar president) fought long and hard for our courts to recognise this principle. His soul will be most satisfied that at last his fight has been won,” Sri Ram added.
The Federal Court last Monday set aside the unilateral conversion of Indira’s three children to Islam by her ex-husband Muhammad Riduan Abdullah after ruling that any conversion of non-Muslim children must get the consent of both parents.
In the landmark ruling, the court also decreed that only the civil court could decide on such matters.
It also ruled that the word “parent” in Article 12(4) of the Federal Constitution should be read as “parents”.
The court’s decision put an end to the interfaith custody battle that followed after Riduan converted their three children without Indira’s knowledge in 2009.
The five-member bench was led by Court of Appeal President Zulkefli Ahmad Makinudin. The other members were justices Richard Malanjun, Abu Samah Nordin, Ramly Ali and Zainun Ali who delivered the unanimous judgment.
Sri Ram, saying he had read the 100-page judgment, added that the decision had several other important effects.
He said the judgment also confirmed that the power of judicial review was part of the basic structure of the constitution. So too, the doctrine of separation of powers.
“Therefore, parliament cannot enact any law that violates or interferes with the power of judicial review vested in our courts.
“As such, a provision in an Act that seeks to oust the power of judicial review is null and void. The Court of Appeal decision in Tony Pua’s case to dismiss his appeal on a travel ban is therefore wrong and no longer good law.”
On July 5, the Court of Appeal dismissed Pua’s appeal to set aside the High Court’s July 2016 dismissal of his judicial review application challenging the travel ban imposed on him.
Sri Ram pointed out that the amendment to Article 121 of the constitution in 1988 violated the doctrine of separation of powers and the doctrine of basic structure and was, therefore, void.
Another significant effect of the apex court’s judgment, according to him, is that bodies and tribunals such as the shariah courts created by state enactments and by parliament are subordinate to the High Court.
He said the court’s ruling meant their decisions on points of the interpretation of law and the constitution could be challenged in the High Court.
“Such bodies and tribunals have no power to interpret federal and state law. If they interpret these laws, then their interpretation can be challenged in the High Court,” he said.
Sri Ram said one other affirmation made in the Federal Court judgment is that the Malaysian Constitution was a secular charter and not an Islamic constitution.
“It can now be seen how important the judgment in Indira Gandhi’s case is.
“The essence of the judgment must be taught in all our schools so that future generations understand its importance. Every man, woman and child must be made aware of its effect.”
Sri Ram said the judgment was strengthened by Court of Appeal President Zulkefli Ahmad Makinudin’s important concurring judgment. He said Zulkefli put beyond all doubt that “our courts are secular and unaffected by racial or religious sentiments”.
Zulkefli, in his concurring judgment, said: “In the present case, in upholding the rule of law, we have to decide on the issue strictly on the basis of the relevant laws, case authorities and the provisions of both the state and the Federal Constitution governing the particular issue.”