Corrected on 30 June 2009 at 7.50pm
SHAH ALAM, 24 June 2009: The legal battle for Mohan Singh a/l Janot Singh’s body must also consider the right to inheritance of his non-Muslim next-of-kin, the High Court here heard today.
Counsel for the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), Balwant Singh Sidhu, told the High Court that Mohan’s family members were entitled to dispute his conversion to Islam, as it affected their rights to his estate.
“The subject matter is not just the body of the deceased. The rights of inheritance of the non-Muslim beneficiaries of the deceased will also be affected,” Balwant told High Court judge Rosnaini Saub.
The court is in its third day of hearing arguments on jurisdiction as to whether the civil or syariah court should hear an application for judicial review of the Sungai Buloh Hospital’s refusal to release Mohan’s body to his family, who are Sikh.
Mohan’s family has named the Health Ministry director-general, the hospital director general, the Selangor and federal governments, the Selangor Islamic Council (Mais) and MCCBCHST as respondents.
Mohan’s body is at the hospital mortuary pending the conclusion of the judicial review.
Balwant, who took his turn at submissions today, tackled Mais’s claim yesterday that non-Muslim family members of a Muslim deceased have no legal right to claim the body, unless the Syariah Court confirmed the deceased as a non-Muslim.
Mais’s lawyer (corrected) Hanif Khatri Abdulla had submitted on 23 June that the subject matter of the dispute, which is Mohan’s religious status at the time of death, was the priority factor in deciding whether the Syariah Court had jurisdiction.
Balwant today disagreed, saying, “As a matter of common sense, that the parties must all be Muslims, must be the first criteria, and the subject matter or relief/remedy, after that.”
He also said that Mohan’s family had the right to testify that the deceased was not a Muslim. As such, Balwant said only the civil court could hear them, as non-Muslims are not subject to the Syariah Court.
The Syariah Court order that Mais obtained on 4 June to take Mohan’s body from the hospital was also unjust because no one was cited as a respondent in that application.
Since no respondent was named, Balwant said that “the right to be heard” had been forgotten.
“The next-of-kin should properly have been parties, and the only court in which that can happen is the civil court,” he said.
Mohan’s family claims that they never knew he converted to Islam. They said he also never showed any indication of being a Muslim as he had married a non-Muslim woman and had performed Sikh funeral rites for his mother, after his alleged conversion in 1992.
The MCCBCHST is supporting the application by Mohan’s family for a judicial review, and the submissions of the family’s lawyers that the case should be heard in the civil court.
Lawyer for Mohan’s family, Rajesh Kumar, told The Nut Graph later that naming the inter-religious council as a respondent was to enable the council to perform its role on matters that concerned them, such as religious conversions.
“Since they are an interested party on such religious matters, as a respondent they can raise points of interest to the court,” Rajesh said.
In court, Balwant said MCCBHST had filed an affidavit on 16 June 2009 as evidence that Mohan was not a Muslim at his time of death.
The affidavit states that a Chanan Singh a/l Santa Singh, who is the secretary of the Sikh Gurdwara at Selayang Baru, had known Mohan and witnessed him praying at the Gurdwara with his sister during the Vaisakhi festival on 13 April 2009.
The affidavit also stated that Chanan was asked by Mohan’s sister to help arrange his last rites upon being informed of his death.
Past cases “not good authority”
Referring to case law, Balwant said recent judgements concerning jurisdiction had been influenced by the minority judgement in Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam. In this case, the minority ruling was that only the Syariah Court could decide on matters of Islamic law. The majority decision, however, was that the High Court had jurisdiction to declare religious status, after referring to the fatwa committee.
A subsequent conversion case in 1999, Soon Singh v Perkim Kedah, relied on the minority judgement in Dalip Kaur.
Balwant said the Lina Joy majority decision by the Federal Court had also relied on the minority judgement in Dalip Kaur, and the Soon Singh judgement.
“To the extent that later cases such as Lina Joy relied on both Dalip Kaur’s case and Soon Singh’s case, such later cases are also not good authority,” Balwant said.
The court will hear replies from the lawyers of Mohan’s family next week on 30 June and 1 July.