The Borneo Post

Baru lauds Federal Court ruling as long-awaited

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KUCHING: State PKR chairman Baru Bian welcomes the decision of the Federal Court in the Indira Gandhi case as a long-awaited judicious and rational judgment backed by sound reasoning.

Baru, who is Ba Kelalan assemblyma­n, was commenting on the Federal Court’s unanimous decision in setting aside the unilateral conversion of Indira Gandhi’s three children to Islam.

The five-man bench chaired by Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin held that the conversion of non-Muslim children must get the consent of both parents.

“It is a breath of fresh air after a long and arduous struggle for Indira Gandhi. In fact, reading the summary of the judgment, one’s response at every point is ‘yes, but of course’ and we wonder why Indira Gandhi and her family had to be put through the agony of the long court proceeding­s in the first place,” Baru said in a press statement yesterday.

On the first question, Baru said the decision of the Court that the judicial power vested exclusivel­y in the civil High Courts under Article 121(1) of the Federal Constituti­on may not be removed from the High Courts and that features in the basic structure of the Constituti­on cannot be abrogated by Parliament by way of constituti­onal amendment is a most crucial point as it addresses the dilemma of many in those states where there is no express provision in the Syariah Ordinance to decide on certain matters and the High Courts have shown reluctance to make those decisions, citing jurisdicti­onal concerns.

“With this authoritat­ive statement, there should be no more doubt that judicial power lies firmly in the civil courts. The Court here has made it clear that where one party is a non-Muslim, the Syariah Court cannot extend its own jurisdicti­on over that person and the proper forum is the Civil Courts. That is the rational and correct stand.”

Baru stated that although the Court in this case was deciding on the Administra­tion of the Religion of Islam ( Perak) Enactment 2004, the principles elucidated in this case applied to all State Syariah enactments.

“The Sarawak legislatur­e must take note of the statement that ‘ the State must claim ownership over the matters that fall within the jurisdicti­on of the syariah courts by providing for it expressly in its legislatio­n’ otherwise the syariah courts are excluded from deciding on matters which fall within Item 1 of the State List in the Federal Constituti­on. There must be express and clear provisions in the State enactment.”

He said the Federal Court’s declaratio­n that inserting clause (1A) in Article 121 [that the High Courts shall have no jurisdicti­on in respect of any matter within the jurisdicti­on of the Syariah courts] does not oust the jurisdicti­on of the civil courts nor does it confer judicial power on the Syariah Courts is significan­t beyond the confines of conversion cases.

“The Court is in fact declaring that the Civil Courts have supremacy over Syariah courts, and their judicial power cannot be constraine­d by Parliament. The Federal Constituti­on is supreme, the power of the Civil Courts is unshakable, and that supports our stand that Malaysia is a secular country.”

On the issue of conversion of a minor, Baru said the judges have taken the reasonable approach - that is the purposive interpreta­tion of Article 12(4) and the requiremen­t to safeguard the welfare of the child.

“The Court has declared that the fact of conversion does not deprive the child of the protection of the Guardiansh­ip of Infants Act, i.e. it ‘does not alter the antecedent legal position’. The correct position has been stated, i.e. that the consent of both parents is required for a minor to be converted to Islam.”

He said this unanimous decision by the five-member Federal Court is indeed a landmark case in Malaysia.

“It is a clear and cogent judgment that will hopefully put an end to cases of unilateral conversion­s of minors. It is also a badly needed definitive statement on the limits of the powers and the jurisdicti­on of the Syariah Courts.”

Baru said: “I add my voice to that of Indira Gandhi’s lawyer M Kulasegara­n that the Federal Court had the courage and moral conviction to do what Parliament lacked - the testicular fortitude to carry out. It gives us new hope that the minority communitie­s still have recourse to the courts even when their government fails them.

“However it remains to be seen whether the IGP ( Inspector- General of Police) will now be as equally courageous as the Federal Court judges to finally arrest the ex-husband of Indira Gandhi. Indira Gandhi deserves more than a victory on paper.”

 ??  ?? Baru Bian
Baru Bian

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