KUALA LUMPUR: A Federal Court decision overrides state law, says constitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi.

He was commenting on the unilateral conversion of the three children of Loh Siew Hong.

“First, a custody order from the courts is binding on all persons and any defiance of the judicial order may amount to contempt of court. Nobody is immune from this law.

“Second, the Federal Constitution is the supreme law of the land and it is superior to all other written laws, including state enactments. Any state law that violates the Constitution can be struck down by the superior civil courts,” he said in a comment piece which appeared in FMT on Friday (Feb 18).

He said thirdly, whenever there is a conflict between any laws or ambiguity in any law, as is almost always the case, the superior courts are the ultimate arbiters of what the law says and means.

“The Constitution is what the courts say it is. No one can arrogate this power to himself.

“It is open to us to express our disagreement with judicial views and visions of the law, but we all have a duty to obey.

“In a democracy we can censure freely, but we must obey promptly,” he said.

He added that his fourth point was the 2018 M Indira Gandhi Federal Court decision, which was binding authority for the proposition that unilateral conversion of minors to another religion without the consent of both parents was unconstitutional.

“The case is also the authority for the ruling that in Article 12(4) the words “parent or guardian” mean both parents and guardians.

This is so because the Constitution in Schedule 11, para 2(95) says “words in the singular include the plural.

The Indira Gandhi verdict has been affirmed in several later decisions,” he said, adding that his fifth point was that if the Perlis state enactment 2016 provides to the contrary, then it needs to be amended and updated to conform to the 2018 apex court decision.

He said even if there is delay in its amendment, all authorities in Perlis are nevertheless bound by the Federal Court decision with effect from 2018.

“In my personal view, the Indira Gandhi decision is also supported by Article 8 on equality before the law and equal protection of the law. Article 8(2) says that “except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion … in any law”,” he said.

He added that in cases where one parent converts to Islam, the other parent does not automatically lose her or his right to an equal right and duty in relation to the child’s upbringing, education and religion.

“The learned mufti of Perlis raised the interesting issue about Article 160B which authorises the Yang di-Pertuan Agong to prescribe a national language translation of the Constitution as the authoritative text.

“The learned mufti relies on a translation in which the word “parent or guardian” in Article 12 is translated as “ibu atau bapa”. However, there is no proof that this translation was officially prescribed and notified in the government gazette,” he said, adding that in any case, Article 160B cannot stand alone.

He said if a translation of the supreme Constitution is done totally outside of Parliament and without the consent of the Conference of Rulers and the Governors of Sabah and Sarawak under Articles 159 and 161E, then it will be open to constitutional challenge.

“Translation is a work of art, not science. If a translation – even if prescribed under Article 160B – violates fundamental rights or the federal-state division of powers, especially the rights of Sabah and Sarawak, or if it does violence to any of the entrenched topics in Article 159(5), its validity will be questioned.

“Article 160B cannot be employed to sweep away in an extra-parliamentary way the delicate compromises that the architects of our Constitution in 1957 and 1963 put into our Basic Law,” he said.