New Top Judges Past Rulings Signal Conservative Judicial Outlook

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The newly appointed Chief Justice Wan Ahmad Farid Wan Salleh, Court of Appeal president Abu Bakar Jais and Chief Judge of the High Court of Sabah and Sarawak Azizah Nawawi appear to be more conservative in their approach.
This observation was made after scrutinising their past court judgments.
For instance, Wan Ahmad Farid - while in the Kuala Lumpur High Court in May 2023 - had ruled that the unilateral conversion of Hindu mother Loh Siew Hong’s three children to Islam by her former husband was valid.
In his judgment, he said there was no evidence that the children had stopped professing Islam while under Loh’s custody, and neither was there evidence that they had reverted to Hinduism.
He cited an affidavit by Perlis Islamic Religious and Malay Customs Council’s (Maips) CEO Nazim Noor, which showed that the children - as of February 2022 - were still practising Islam, performing the dawn prayer, and one of them even wanted to be a syarie lawyer.
Wan Ahmad Farid also noted that the Federal Court, in the M Indira Gandhi case, ruled that when a child’s religion or religious upbringing becomes an issue, then it is paramount for the court to safeguard the welfare of the child, having regard to all circumstances of the case.
M Indira Gandhi“Having regard to all the circumstances of the case, there is no evidence before me that the three children are not happy staying with the applicant (Loh). Although this is another issue, it is quite related to the instant case.
“There is no evidence that the three children have stopped professing the religion of Islam when they are under the care of the applicant, either.
“Therefore, the welfare of the children, within the meaning of Indira’s case, dictates that the status quo should remain,” Wan Ahmad Farid ruled.
However, a three-person Federal Court bench, chaired by then chief justice Tengku Maimun Tuan Mat, ruled the children will remain non-Muslims, reiterating the 2018 ruling that conversion of a child to Islam requires the consent of both parents.
Primacy of syariah courts
As for Abu Bakar, he was part of a decision in May last year that dismissed an appeal by a 37-year-old woman who wanted to overturn an appellate court decision that saw her reinstated as a Muslim.
ADSAccording to Bernama, he said there was no authority that indicated a civil court could depart from decisions made by the Syariah Court in the same case.
“The case could not be re-litigated by the civil courts,” he said.
“It would indeed be inappropriate, unjust to the system of judicial administration and power of the Syariah Court and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil court,” he added.
In the matter of the fatwa issued by the Selangor Islamic Religious Council (Mais) labelling Sisters in Islam (SIS) as deviant, Abu Bakar argued that a company could be bound to fatwa as it was managed by individuals.
He provided a dissenting judgment in the case that saw SIS appeal against the fatwa, saying that the NGO actively makes statements and expresses views on Islamic matters.
He also said that the civil courts had no jurisdiction over the issue, adding that it fell under the purview of the syariah courts.
“The High Court judge was correct in refusing the judicial review and in determining that the challenge should be heard by the Syariah Court.
“There is no error in the finding that the Syariah Court had jurisdiction over the fatwa, as it relates to ‘the control of propagating doctrines and beliefs among persons professing the religion of Islam’ and ‘the determination of matters of Islamic law and doctrine’,” the New Straits Times quoted him as saying.
The question of jurisdiction alone was grounds for dismissing the appeal, he added.
Upholding govt decisions
Meanwhile, Azizah had decided in favour of reimposing a ban on the book titled “Gay is OK! A Christian Perspective” in September 2023.
She supported a 2-1 decision in the Court of Appeal that allowed the government’s appeal against a 2022 lower court ruling that allowed the book author’s judicial review to quash the ban.
Bench member Wong Kian Kheong read out the majority verdict, saying that the home minister had correctly abided by procedures in imposing the ban under Section 7 of the Printing Presses and Publications Act 1984, and the minister was reasonably satisfied that the contents of the book had a risk of being prejudicial to public order.
In a case over the degazettement of Bukit Cherakah in January 2024, Azizah chaired a bench that denied the appeal by Pertubuhan Pelindung Khazanah Alam and the Shah Alam Community Forest Society to commence a challenge against the Selangor government.
Speaking on behalf of fellow bench members Wong and Azimah Omar, Azizah ruled that the judicial review was filed out of time as the policy decision was made on Nov 20, 2000.
She said the two groups failed to file the challenge within three months of the decision.
The Federal Court later agreed to hear the NGOs’ appeal, saying the legal questions raised by the case will be of public importance.
However, in April this year, the groups questioned the Court of Appeal’s delay in issuing its grounds of judgment, saying this obstructed their case at the Federal Court despite the lapse of more than a year. - Mkini

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