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Friday, August 27, 2010

“Syariah court has no legitimacy for non-Muslims”

Corrected 11.35am on 25 Aug 2010

ON 20 Aug 2010, a three-person bench of the Court of Appeal unanimously denied the application of S Kaliammal, the widow of Mount Everest climber M Moorthy, to determine her late husband’s religious status. Moorthy passed away on 20 Dec 2005 after entering into a coma. Just before his death, Kaliammal was informed he had converted to Islam. Upon his death, the Islamic religious authorities claimed Moorthy’s body for a Muslim burial after the syariah court issued an order declaring him Muslim.

Kaliammal has been fighting for the civil court to determine Moorthy’s religious status, saying he professed to be Hindu shortly before his death. In her judgment, however, Justice Datuk Zainun Ali said the syariah court was the competent authority to determine any matter relating to the conversion to, or renouncement of, Islam. She also said Kaliammal could apply to the syariah court to set aside the order declaring Moorthy a Muslim.

Is it just and reasonable to ask a non-Muslim to go to the syariah court to seek a remedy? The Nut Graph asks lawyer K Shanmuga, who represented Mohan Singh‘s family in a similar case, about the implications of this Court of Appeal decision.

TNG: What are your comments on the Court of Appeal’s decision that the religious authority of a particular religion is better placed to consider whether a person belongs to that religion?

K Shanmuga: Usually, what we are asking the court is to decide what religion a person professed and practised. This is different from what religion he or she is. What they professed involves what they told others about their beliefs and what they acknowledged themselves to be.

In Moorthy‘s case, for example, 11 days before he fell into a coma, he appeared on a TV3 interview explaining how he was going to celebrate Deepavali that year. This was raised in court. The issue is not whether he’s Hindu under Hindu law or Muslim under Islamic law. It’s a question of what he professed himself to be.

What are the effects of the Court of Appeal judgment on Kaliammal and others in a similar position?

Firstly, Kaliammal is denied access to justice. Basically, she’s been told the court cannot help her and can’t even hear her application. They apparently said she can go to the syariah court. But this overlooks the Federal Court decision in R Subashini‘s case, which categorically said non-Muslims cannot go to the syariah court even if they wanted to. The constitution has defined the syariah court’s limits and we cannot enlarge it. So Kaliammal now can’t go to any court for a remedy for this situation.

Financially, in Kalliamal’s case, some settlement was reached in terms of inheritance fromMoorthy‘s estate. In most other cases, because the court refuses to hear them, the widow and family are totally disinherited. The entire estate will go to the state Islamic department underfaraid because there would ordinarily be no Muslim relative. Or if the deceased has a new Muslim family, they will inherit over the non-Muslim family. The non-Muslim family’s entire financial security could be taken away from them by being denied access to court.

Shanmuga

Shanmuga

Justice Zainun said Article 121(1A) of the Federal Constitution places the determination of Moorthy’s religious status with the syariah court. The article states that the civil courts will have no jurisdiction over matters within the syariah court’s jurisdiction. Does that preclude the civil courts completely from deciding on matters such as Moorthy’s religious status?

The Federal Court decision in the Latifah Mat Zin case states that the civil court must examine the various state enactments on whether jurisdiction was given to the syariah court on a particular issue. In Moorthy’s case (which was in the Federal Territory), the Federal Territories legislation at the time did not give the syariah court jurisdiction to determine a Muslim’s religious status.

The Latifah Mat Zin case also states that even if the syariah court had jurisdiction to hear the matter, such as in Selangor after 2003, even then, all parties must be Muslim. If there was a contest between the Islamic department and a non-Muslim family, the syariah court cannot have jurisdiction. Both conditions must be satisfied – namely, the law must expressly grant the syariah court jurisdiction over the dispute, and everyone in the dispute must be Muslim.

(Copy corrected: comment removed because of editorial error)

Why can’t non-Muslims go to the syariah court for relief, as the Court of Appeal suggested to Kaliammal?

The reason why non-Muslims cannot go to the syariah court is simple. Syariah derives its legitimacy from theological law – the Quran and Hadith. This is legitimate for Muslims because they believe it’s the revealed word of God.

Non-Muslims don’t share that belief. We cannot ask non-Muslims to be judged according to a theological law they don’t believe in. Syariah has no legitimacy to them as non-Muslims.

The second point is the constitution just doesn’t allow for it. The courts can’t say, “Why don’t you go there?” That’s up to the people, through Parliament, to decide whether they want to amend the constitution. There are also problems of practicality and perception such as non-Muslim evidence carrying less weight in certain areas. But the basic fundamental reason is that syariah has no legitimacy for non-Muslims.

Article 121(1A) was meant to prevent Muslims who had their matters litigated in the syariah court from coming to the civil courts for a second bite at the cherry. It wasn’t meant to impose Islamic law on non-Muslims, which is the effect of the 20 August Court of Appeal decision.

What should the remedy be to ensure Kaliammal and others in her position have access to justice? Do the civil courts have to step up and assume their proper jurisdiction or must the law be amended?

I think because there have been so many cases and so much uncertainty, ideally, the law ought to be amended to make things clear. The Malaysian Consultative Council of Buddhism, Christianity, Hinduim, Sikhism and Taoism (MCCBCHST) signed a 2007 Note of Protest setting out comprehensively what needs to be amended.

Effectively, they say Article 121(1A) can stay. But they suggest it may also be useful to say that the syariah court should not interfere where non-Muslim rights are affected.

It’s also important to make it clear that the determination of who is a Muslim should belong to that person. Provisions such as in Selangor, which give the syariah court jurisdiction to make that determination, should be removed. Definitions of who is a Muslim should also be removed.

Kuala Lumpur Courts Complex (Pic by Geoff-inOz | Wiki commons)

Kuala Lumpur Courts Complex (Pic by Geoff-inOz | Wiki commons)

At the moment, such definitions in state enactments go beyond the constitution, which says Islamic law applies to “persons professing the religion of Islam”. State enactments define it wider; for example, by stating that a person born to a Muslim or person who converts to Islam is a Muslim for all time.

The problem is the courts have made Article 121(1A) into something it was never intended to be. It was just intended for Muslims who have had their disputes litigated in the syariah courts and were dissatisfied, trying to get a second bite at the cherry in the civil courts. It was to stop that practice. It was not to suddenly create a dual judicial system, nor was it meant to impose Islamic law on non-Muslims, which is the effect of the Court of Appeal decision.

What is the biggest impact of the Court of Appeal’s decision on those such as Kaliammal?

The biggest impact for them is not legal. It’s the emotional trauma they go through that is the most horrible thing about it all. For Kaliammal, her husband had died, and all of a sudden, a big group of people descended on the hospital and took her husband’s body away. She wasn’t able to do prayers and cremate Moorthy’s body in the way she believes is necessary for his soul to achieve peace.

It’s the real human lives that are at stake.

courtesy of Nut Graph

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