I applaud the Prime Minister’s recent decision to amend the Law Reform (Marriage and Divorce) Act 1976 (“LRA”).
Being a practising lawyer and involved in several related cases I believe it is also high time for the federal government to reconsider into other significant changes such as amendment to Article 121 (1) of the Federal Constitution.
Previously in 1988 the material part of clause (1) of Article 121 provided that: “… the judicial power of the Federation shall be vested in” the High Court. After 1988, Article 121(1) said that the High Court “shall have such jurisdiction and powers as may be conferred by or under federal law”.
That is to say, before 1988 the courts derived their powers from the Constitution but now from the Parliament.
“In addition to the amendment of the LRA, I think it is also necessary to amend Article 121(1A) as one may still argue that the supreme law takes precedent over the LRA. Otherwise it may lead to another controversial legal dispute after the proposed LRA amendment” Andy emphasised.
The 121(1A) amendement also occurred in 1998 where the powers and jurisdiction of the Syariah courts have been expanded beyond the limits permitted by the Constitution.
Since then Syariah courts gave orders against non-Muslims such as dissolving the civil marriages registered under civil law when only one spouse converted to Islam, and converted infant children to Islam without the knowledge of the non-Muslim parent such as Subashini and Indira Ghandi’s cases.
With the above amendments, it will reflect a truly separation of powers that the Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law.
The courts with a clear jurisdiction can then interpret the laws and see that they are obeyed such as only civil court to decide matters relating to civil marriages.