Lawyers familiar with cases of conversion say the Negri Sembilan Islamic Affairs Department (JHEAINS) cannot cite the family of the late Lawrence Selvanathan for contempt of the syariah court for cremating his remains.
According to noted syariah lawyer Muhamad Burok, this is because the family is Christian and they therefore do not fall under the jurisdiction of the syariah court.
"The jurisdiction of the syariah court, according to the Administration of the Religion of Islam (Negri Sembilan) Enactment 2003, only extends to cases where all parties are Muslim.
"This is the law, but if there is a clause that allows (the contempt action) then let me know," Muhamad (right) said when contacted.
Agreeing with him, lawyer M Kulasegaran said the federal constitution, through the inclusion of clause (1A) into Article 121, clearly states that Malaysia practices two parallel legal systems.
The clause states that the High Courts has "no jurisdiction in respect of any matter within the jurisdiction of the syariah court".
It also states that the syariah court has jurisdiction only "over persons professing the religion of Islam".
"In view of this, the law does not apply to non-Muslims, subpoenas don't apply and it is my view that contempt also does not apply," Kulasegaran said.
This would therefore extend to the syariah court order obtained by JHEAINS to stop Lawrence's funeral on Sept 22 as well, added Kulasegaran, who is also DAP's Ipoh Barat MP.
"The family can look at all this with impunity," said the lawyer, who acted for the late Everest mountaineer M Moorthy's wife in the controversial body snatching case in 2005.
In that matter, S Kaliammal (right), the widow of Everest climber Sgt M Moorthylost her final legal redress in the Federal Court in January this year to obtain a declaration that her late husband was still a Hindu prior to his death five years ago and that he be accorded a burial according to Hindu rites.
Agreeing with the position taken by Kulasegaran, Muhamad, argued that the Syariah Court order would not hold up as it was served on non-Muslim parties.
In cases where Islamic departments find that a deceased person has converted without the family's knowledge, the department could only try to persuade the family to allow him or her to be buried according to Islamic rites.
"Syariah lawyers get frustrated as the court's jurisdiction is narrow, but that is the law. The law does not allow action (in such matters)," Muhamad said.
However, another syariah lawyer, Zulkifli Che Yong said the syariah court has jurisdiction in such matters, even though the parties involved are non-Muslim.
"It depends on the subject matter. In this case, the subject is a man who is said to have converted to Islam," he said, adding that the situation may be less clear in the case of citing the family for contempt.
Political will lacking?
JHEAINS claims that it has a certificate and a video recording proving that Lawrence, 33, had converted to Islam three days before his death and had taken the name Zairy Abdullah.
The agency had at 12.40am on Sept 22, the day of his funeral, served the court order on the family stopping them from proceeding with the funeral, which was to take place at 3pm in Lukut, Port Dickson.
JHEAINS also stopped the family while they were on the way to the funeral mass, but the deceased's friends took matters into their own hands and cremated the body.
In 2009, the governmentannounced that it would amend the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act 1984 to deal with disputes over matters of conversion.
The amendments have yet to go through.
According to Kulasegaran (left), the government had formed a committee headed by Minister in the Prime Minister's Department Koh Tsu Koon, and the matter was then referred to the rulers.
"Nothing has gone through. At the end of the day it's the fault of the government for not addressing this issue, which it feels is politically challenging and sensitive.
"But a pragmatic and realistic government will look at the bigger picture and see the emotional stress and fractures in families caused by this... it shows a lack of willpower by the government," Kulasegaran added.
According to noted syariah lawyer Muhamad Burok, this is because the family is Christian and they therefore do not fall under the jurisdiction of the syariah court.
"The jurisdiction of the syariah court, according to the Administration of the Religion of Islam (Negri Sembilan) Enactment 2003, only extends to cases where all parties are Muslim."This is the law, but if there is a clause that allows (the contempt action) then let me know," Muhamad (right) said when contacted.
Agreeing with him, lawyer M Kulasegaran said the federal constitution, through the inclusion of clause (1A) into Article 121, clearly states that Malaysia practices two parallel legal systems.
The clause states that the High Courts has "no jurisdiction in respect of any matter within the jurisdiction of the syariah court".
It also states that the syariah court has jurisdiction only "over persons professing the religion of Islam".
"In view of this, the law does not apply to non-Muslims, subpoenas don't apply and it is my view that contempt also does not apply," Kulasegaran said.
This would therefore extend to the syariah court order obtained by JHEAINS to stop Lawrence's funeral on Sept 22 as well, added Kulasegaran, who is also DAP's Ipoh Barat MP.
"The family can look at all this with impunity," said the lawyer, who acted for the late Everest mountaineer M Moorthy's wife in the controversial body snatching case in 2005.
In that matter, S Kaliammal (right), the widow of Everest climber Sgt M Moorthylost her final legal redress in the Federal Court in January this year to obtain a declaration that her late husband was still a Hindu prior to his death five years ago and that he be accorded a burial according to Hindu rites. Agreeing with the position taken by Kulasegaran, Muhamad, argued that the Syariah Court order would not hold up as it was served on non-Muslim parties.
In cases where Islamic departments find that a deceased person has converted without the family's knowledge, the department could only try to persuade the family to allow him or her to be buried according to Islamic rites.
"Syariah lawyers get frustrated as the court's jurisdiction is narrow, but that is the law. The law does not allow action (in such matters)," Muhamad said.
However, another syariah lawyer, Zulkifli Che Yong said the syariah court has jurisdiction in such matters, even though the parties involved are non-Muslim.
"It depends on the subject matter. In this case, the subject is a man who is said to have converted to Islam," he said, adding that the situation may be less clear in the case of citing the family for contempt.
Political will lacking?
JHEAINS claims that it has a certificate and a video recording proving that Lawrence, 33, had converted to Islam three days before his death and had taken the name Zairy Abdullah.
The agency had at 12.40am on Sept 22, the day of his funeral, served the court order on the family stopping them from proceeding with the funeral, which was to take place at 3pm in Lukut, Port Dickson.
JHEAINS also stopped the family while they were on the way to the funeral mass, but the deceased's friends took matters into their own hands and cremated the body.
In 2009, the governmentannounced that it would amend the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act 1984 to deal with disputes over matters of conversion.The amendments have yet to go through.
According to Kulasegaran (left), the government had formed a committee headed by Minister in the Prime Minister's Department Koh Tsu Koon, and the matter was then referred to the rulers.
"Nothing has gone through. At the end of the day it's the fault of the government for not addressing this issue, which it feels is politically challenging and sensitive.
"But a pragmatic and realistic government will look at the bigger picture and see the emotional stress and fractures in families caused by this... it shows a lack of willpower by the government," Kulasegaran added.
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