In conversions bind, did judges abdicate duty to heed precedents?


January 10, 2016

In conversions bind, did judges abdicate duty to heed precedents?

by  Dr. P Ramasamy

http://www.malaysiakini.com

COMMENT: I have respect for Dato’ Seri Gopal Sri Ram (pic above), the former Federal Court Judge. However, his recent article on the role of the judiciary on the matter of religious conversion seems a bit murky.

Read: https://dinmerican.wordpress.com/2016/01/10/the-indira-gandhi-case-judicial-escapism-by-court-of-appeal/

Sri Ram has come to the defence of the Court of Appeal’s decision that quashed the order of the Ipoh High Court that forbade the unilateral conversion of the three children of Indira Gandhi. While Sri Ram praised the stand taken by Zaid Ibrahim, the former Law Minister, for calling the majority decision “heartless” and “heart rending”, he nonetheless thinks that the majority decision of the Court of Appeal was not that “heartless” after all.

First, Sri Ram thinks that the Court of Appeal’s two judges who quashed the High Court decision had no choice but to rely on the earlier Federal Court decision.nIn other words, they were quite obedient to the decision of the Federal Court when it ruled in 2014, in the case of Haji Raimi Abdullah, that whether person is a Muslim or conversion of a minor into Islam was the sole jurisdiction of the Syariah Court. However, Sri Ram thinks that this obsequious adherence was wrong and smacks of “judicial escapism”. But yet he defends the “defenseless” decision of these two judges!

Second, he said that decision that went against the children was not that “heartless” after all, since the Court of Appeal did not interfere or strike down the decision of the High Court the certificate of conversion into Islam the eldest child of Indira Gandhi who turned 18. Since the eldest child continues to be a Hindu, the two judges cannot be simply accused of being “heartless” or “uncaring” about the family of Indira Gandhi.

No choice

Sri Ram is quite critical of the two judges for “obediently” following the dictates of the Federal Court and the other hand, he thinks that they had not choice but to follow a precedent that has been already set in the form of a Federal Court decision. He perhaps best knows how to explain this conundrum.

I beg to disagree with Sri Ram. Judges in the country cannot have the best of both worlds. It does not make sense to defend the judges on the grounds of adherence to precedents set by superior courts and yet expect them to follow their conscience.

And yes, I agree with Sri Ram that “judicial escapism” is wrong, but then how can you defend them for slavishly following dictates of superior courts. However, not all three judges in the Court of Appeal blindly adhered to the precedent set by the Federal Court. The judge who disagreed with the majority decision (decision of the two judges) went against the precedent.

Is Sri Ram saying that the dissenting judge erred in his decision? I would think that Sri Ram should have gone one step to examine the rationale behind the decision of the dissenting judge.Why did the dissenting judge refused to be dictated by the Federal Court’s precedent. In other words, is there a legal requirement to blindly follow precedents?

I am in agreement with Sri Ram as to the state of judiciary in the country. While we can blame governmental interference in the functioning of the judiciary to some extent, we don’t think that judges are “innocent” actors when it comes to making decisions or legal pronouncements.

Judges are expected to set standards and play a meaningful role in ensuring that there is healthy balance between the executive, judiciary and the legislative. Judges are also expected to make decisions that will be in keeping with changing times.

When it comes to decisions on religious matters there is trend that suggests that even the judges are finding difficult to detach themselves from the prevailing state-driven agenda, that seems to prioritise the dominance of one set of beliefs to other set of beliefs.

As Sri Ram himself pointed, let us not take the country along a dangerous judicial path where a wrong decision by a superior court is blindly and slavishly adhered to render other court decisions null and void.

Let not the courts in the country abdicate their duties and responsibilities to government agencies and quasi-agencies that have little or nothing to do with the dispensation of justice in the country.


Dr. P RAMASAMY is Deputy Chief Minister II of Penang and the state assemblyperson for Perai.

One thought on “In conversions bind, did judges abdicate duty to heed precedents?

  1. In a judicial system where only one set of jurisprudence applies, be it secular or religious, then no problem.

    And juristic adherence to legal precedent is critical as it provides clarity and certainty in the law and its common application to all litigants. If not, lawyers will find it impossible to advice their clients on the law as it stands at the time advice is sought.

    However, perhaps Malaysia is unique in that we have two systems of jurisprudence, one secular the other religious, running almost parallel and perhaps even at cross purposes in certain matters. These matters and dissatisfaction with the judicial pronouncements by these two separate systems on them are amplified because they happen to involve emotional ties of family kinship, and nothing is more heart-wrenching than tearing a child away from a mother, whatever is the race, culture or religion involved.

    The matter seems intractable, (at least at the moment), as litigants will naturally chose the system of judicature which best bring about an outcome favorable to oneself, if a choice is offered, as it is now, between the Shariah courts and the courts of secular judicature.

    And it dose not help when the judges of the secular system who decided against Ms. Indira Gandhi or other non-Muslim litigants happen to be Muslims giving the perception, right or wrong, of religious bias and prejudice.

    And also another point of dissatisfaction with the system as it stands is Ms. Indira Gandhi could not appear before the Shariah courts even if she wants to as non-Muslim persons and non-Shariah compliant lawyers could not appear before a Shariah court to seek redress, only her Muslim husband could.

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