The Indira Gandhi Case –Judicial Escapism by Court of Appeal


January 10, 2016

The Indira Gandhi Case– Judicial Escapism by Court of Appeal

by Dato Seri Gopal Sri Ram

http://www.themalaysianinsider.com

In my view, the decision was wrong for reasons not relevant here. It is my respectful view that as a matter of law the issues framed in Raimi are matters of statutory and constitutional interpretation solely within the jurisdiction of the ordinary courts established by the Federal Constitution and that the Federal Court fell into serious error in holding otherwise.

It is for the Federal Court now to decide whether to emerge from the trap of judicial escapism or remain in it.But that aside, as a matter of pure judicial discipline the majority was bound to follow and apply the decision of the Federal Court despite any personal sentiments the majority may have felt about the correctness of the decision.That is how the system works. That is how the system works. And that is how it has worked for centuries in the common law.–Gopal Sri Ram

Lawyer Gopal Sri Ram © arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

Dato Seri Gopal Sri Ram –The Malaysian Insider/Najjua Zulkefli

Datuk Zaid Ibrahim is more a lawyer than a politician. That is why he did not last for long as Law Minister. He is a man with a strong conscience. That is why one can understand his chagrin at the decision of the Court of Appeal in what has come to be called as the Indira Gandhi case.

The facts tell a heart rending story of a mother from whom her children were torn away by her husband. We are therefore all on her side, as it were. It is out of his frustration at the result that Zaid called the majority judgment in the appeal as heartless.

But while his anger is just, Zaid has addressed the wrong target. Having read the majority judgment the following points become clear. First, the Court of Appeal refused to interfere with the decision of the High Court quashing the certificate of conversion into Islam of the eldest child who had turned 18.

So the order quashing the certificate of conversion of the eldest child stands. And that means that the eldest child is and continues to be a Hindu. In fairness to the majority therefore its decision at least to this extent can hardly be described as heartless.

What then is the right target? In coming to its decision the majority’s main ground was that it was bound by the decision of the Federal Court in Haji Raimi Abdullah decided in 2014 where it was held that the issue whether a person professes Islam and whether the conversion of a minor into Islam is valid are solely within the jurisdiction of the Shariah Court.

Interfaith_child_custody-appeal-03_2407_620_412_100

In my view, the decision was wrong for reasons not relevant here. It is my respectful view that as a matter of law the issues framed in Raimi are matters of statutory and constitutional interpretation solely within the jurisdiction of the ordinary courts established by the Federal Constitution and that the Federal Court fell into serious error in holding otherwise.

It is for the Federal Court now to decide whether to emerge from the trap of judicial escapism or remain in it.But that aside, as a matter of pure judicial discipline the majority was bound to follow and apply the decision of the Federal Court despite any personal sentiments the majority may have felt about the correctness of the decision.That is how the system works. And that is how it has worked for centuries in the common law.

Very recently in England, a judge of the High Court said that the UK Supreme Court had got the law all wrong on a particular subject and proceeded to misapply it. The Court of Appeal allowed the appeal by consent and sent it back to the same judge who then proceeded to attack the decision of the Court of Appeal.

Again an appeal was preferred and again the appeal was allowed by consent. The matter was sent back to a different judge. The expense incurred by the litigation was considerable.And all because a judge was disobedient to precedent.

To return to the point made. Yes, the decision of the majority in Indira’s case appears heartless. But that is not the fault of the Court of Appeal which was acting in obedience to precedent.

It is important for lawyers to carefully read the judgment in a case before criticising it. I recall when in the Court of Appeal we allowed an appeal and quashed the conviction of an accused charged for rape because there had been serious departures from procedural justice.

The then Attorney-General Tan Sri Abdul Gani Patail without reading our judgment launched a tirade upon us. We remained silent. We then produced our judgment. It showed that the Attorney-General was way off target. But there was no apology. We expected the Chief Justice to come to our defence as we could say nothing. But the then Chief Justice was a weak and intellectually retarded person to whom the law was a chore.

It is heartening to see Tun Arifin Zakaria come to the defence of his judges while justly rebuking them for producing poor quality judgments. Our judges must take pride when writing judgments and we must return to that time when the judgments of our courts were treated with respect by the courts of other jurisdictions.

* Datuk Seri Gopal Sri Ram is a former Federal Court judge.

6 thoughts on “The Indira Gandhi Case –Judicial Escapism by Court of Appeal

  1. The Indira Gandhi Custody decision by The Appeal Court is a travesty of Justice. It is should not be about religion, but it should be about the proper administration of justice. Why are we allowing a feud between two adults affect the lives of their offspring. The issue is who is better qualified to have custody of the children. The Dad or the Mom? Religion should be left to their children to decide.

    The Court of Appeal indulges in judicial escapism. Spot on, Dato’ Seri Gopal Sri Ram. Passing the buck to the Shariah Court is a bad precedent, although it is a politically convenient option. Something is horribly wrong with our judicial system, to put it mildly and the administration of Justice. Care to comment, guys. How does it work in the US, Ambassador Malott?–Din Merican

  2. The old time Polish joke of “how many poles does it take to change a light bulb” has been given a new twist. Its now how many Malaysian Ministers does it take to solve the Indhira Gandhi dilemna.

    Its sad to note that the judges in Malaysia is playing the passing the buck game. The highest court in the land should make a determination about which court is superior and has jurisdiction to hear conversation cases. Otherwise the civil court will become subservient to the shariah court and any judgement by an Appeals court can still be challenged in a shariah court.

  3. Is malaysia a signatory to the UN and Hague conventions on the rights of Minor children, and if it is why no cognizant taken of these conventions. One of the rights enshrined is the recognistion that children caught in estarnged parental dispute is entitled to the contact and affection of both parents where one has the custodial right and the other has periodical visitation right. Religion should butt out of these inalienable right of the child unitl it reaches adulthood.

  4. They have abdicated responsibility. And Islam is supreme as per view in this case. The judgment is scary as it has much more wider ramifications . Anything islam which involves a non muslim cannot be judged by a secular justice system , scary

  5. Someone commented “BRAVO Dato Seri Gopal Sri Ram…” I sincerely hope he was not serious.

    Look at what Sri Ram wrote: “It is heartening to see Tun Arifin Zakaria come to the defence of his judges while justly rebuking them for producing poor quality judgments”. He must be fawning or (using his own phrase) intellectually retarded. If the judges produce poor quality judgments, how could they be good judges at all – and you want to defend them?

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