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“Non-Muslims have no locus standi”

Corrected on 30 June 2009 at 7.50pm

SHAH ALAM, 23 June 2009: The non-Muslim family members of Mohan Singh a/l Janot Singh cannot be a party to the dispute over his body as the core issue of his religious status at the time of death can only be determined by the Syariah Court, the High Court here heard.

Lawyer for the Selangor Islamic Council (Mais), (corrected) Hanif Khatri Abdulla, said only “in the event” that the Syariah Court determines Mohan as non-Muslim at death, would his family members have lawful claim over his body.

“The argument of the applicants that they cannot be made a party in the Syariah Court is a non-starter … the applicants do not have locus to be a lawful party on this issue,” Hanif said in his submissions to the court which began hearing arguments on jurisdiction on Friday, 19 June. The court will also continue hearing submissions tomorrow.

Hanif’s submission was adopted in total by the federal government and the Selangor government which are also respondents in the judicial review filed by Mohan’s family, who are all Sikh.

The federal government is represented by senior federal counsel Shamsul Bolhassan and the Selangor government by deputy state legal adviser Md Azhari Abu Hanit.

Mohan’s body is still being held at the Sungai Buloh Hospital mortuary. His family has filed for a judicial review on the hospital’s refusal to release his body to them for burial. The case is being heard by judge Rosnaini Saub.

Besides Mais, and the federal and Selangor governments, Mohan’s family have also named as respondents, the Health Ministry director-general, the Sungai Buloh Hospital director-general, and the Malaysian Consultative Council for Buddhism, Christianity, Hinduism, Sikhism and Taoism.

Film director Mohan, who died of a heart attack on 25 May, had allegedly converted to Islam on 11 Aug 1992.

Mais obtained an order from the Syariah Court on 4 June stating that Mohan was a Muslim at death and that the hospital was to hand over his body to Mais for Muslim burial rites to be carried out.

However, the hospital did not do so as the family obtained a High Court order restraining the release of the body until the judicial review was settled.

The family is disputing the claim that Mohan was a Muslim as he had never informed them of his conversion, he had married a non-Muslim woman, and had continued to perform Sikh rites after his alleged conversion.

Conversion certificate

Hanif said the existence of Mohan’s conversion certificate was conclusive proof that he was Muslim. The lawyer was replying to claims by Mohan’s counsel last Friday that the certificate produced for the family was photocopied and illegible.


Hanif

“It does not matter how or where this certificate was found. It does not matter whether the applicants had knowledge of the conversion or not. What matters is that this certificate exists,” Hanif said.

As such, he said Mais must be allowed to perform its powers and responsibilities as the authority in charge of Islamic matters in Selangor. “Mais has the duty to determine the religious status at time of death.”

He said it followed that Mais was the “only party which will be involved in the determination of this issue before the Syariah Court.”

“The immediate non-Muslim members [of the family] would not by any stretch of imagination be a relevant party on the issue of that determination,” Hanif said.

He gave the court a hypothetical analogy — a Buddhist who converted to Christianity to marry his Christian spouse, and later died, would be buried according to Christian rites. But the Buddhist parents of the converted spouse would have no grounds to challenge the living spouse for the body.

Jurisdiction

Rebutting the use of recent court decisions by Mohan’s lawyers that the case ought to be heard in the civil court, Hanif said Latifah Mat Zin vs Rosmawati Shariban & Anor was not a case about religious status but about inheritance according to Islamic principles.

Mohan’s lawyers Rajesh Kumar and K Shanmuga had cited the Federal Court’s ruling in this case that all parties to a dispute must be Muslim in order for the Syariah Court to have jurisdiction over a matter.

Hanif said: “The first criterion is to see whether the subject matter is vested within the jurisdiction of the Syariah Court. Only then, the second criteria would be to determine legally who is/are the party/parties to the subject matter.”

He said the Latifah Mat Zin case did not specifically address jurisdiction of the civil court over the matter of religious status.

Hanif also rebutted another case cited by Mohan’s lawyers, that of Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron, in which the High Court said that the proceedings of the High Courts of Malaya, and of Sabah and Sarawak, should take precedence over the Syariah Court when there is competing jurisdiction.


Mohan’s lawyers K Shanmuga (left) and Rajesh Kumar

Hanif cited the Federal Court decision in Subashini Rajasingam v Saravanan Thangatoray & Other Appeals last year, where it was ruled that the Syariah Court was separate and independent of the civil court, and was equal in standing under the Federal Constitution.

Hanif also said Mohan’s lawyers had misconstrued Islamic principles on the various types of evidence, and said similar principles differentiating evidence existed in civil law for minors and female complainants in sexual cases.

He said testimony by these persons were subject to corroboration.

“Are we to say that the civil courts are being discriminatory against minors or the female gender? Can the minors and/or female gender claim that the civil court has no jurisdiction over them?” Hanif said.

Last Friday, Mohan’s lawyers said non-Muslims appearing in the Syariah Court would not get a fair hearing as their evidence would be considered less credible than that of a Muslim’s according to the various Islamic categories of witness.

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11 Responses to ““Non-Muslims have no locus standi””

  1. tkwah says:

    I feel sorry for the families who are going through their fights in the courts over dead relatives, children and property.

    However, those cases really open the eyes of many people as to what to expect and makes them more conscious in the way forward.

    Phew!!!

  2. Azizi Khan says:

    This is a fine example why syariah and hudud laws must not be implemented nationally for all as it strips away the rights of the non-Muslims. I believe our existing courts are perfectly capable of hearing cases of this sort without dragging religion into it. It is also a fine example of a High Court which is able to hear a case like this without bias while a Syariah Court has vested interest in Muslims alone.

    In such a case how do non-Muslims gain justice? Already we have seen how biased syariah courts are when it comes to property and divorce laws.

    One thing cannot be denied. Constitutionally the syariah courts are inferior. As such, I believe the High Courts have every right to hear this case.

    But this is Malaysia, we all know justice can be bought at every street corner.

    AK.

  3. Henrie says:

    Have they looked at physical evidence – I mean was he circumcised? I accept that a non-Muslim may also be circumcised for health reasons. But what I’m saying is shouldn’t they eliminate the most obvious things first (in case he wasn’t)?

  4. majeedkareem says:

    Why can’t everybody let the dead rest in peace? After all it does not matter what ever religion a person possesses, when he is dead there is nothing to it. Most important is what he did here when he was alive. He was happy behaving like a Muslim. So why every time somebody who seems or have lived a life as a Muslim, everybody starts yelling when he dies? Let him be buried the way he chose to live.

    For the family concerned, I apologize if they feel offended but please go back to the time when Guru Nanak left this world – there was a dispute over his religion. Learn something from there. Going to hell or heaven is in your deeds, not what you are. I do not mean to offend anybody, but please understand what was actually wanted by the person who has died. May his soul rest in peace.

  5. Gopal Raj Kumar says:

    Critical to the issue of where Mohan or others in his position posthumously lie is not in determining their religion at the time of their death but whether or not there are express rights to any other party other than their immediate family to take possession of their remains or to direct how their mortal remains should be disposed of (providing of course they comply with one of the accepted practices in disposing of the corpse, e.g. burial or cremation).

    In the absence of any argument raised or controverted on this point, are we being led to believe that the body of a deceased convert to Islam belongs to the state’s department of religious (or Islamic) affairs if that’s what Mais is all about?

    If the family accept the assertion based on the weight of legally admissible evidence that Mohan was a Muslim (convert or otherwise) at the time of his death, does that still entitle Mais or any other non family entity to retain and thereafter dispose of his body excluding his family? And if that is the case, are family members allowed to be present and allowed to participate in the rituals that are part of burial according to Islamic rites? Let’s examine these issues in context of the definition of Islam. In particular Sunni Islam.

    The reason we need to expand on the issues relating to this topic is that no one has to date raised the spectre of the family’s rights to collect a body at the time of death.

    Unless the Act in this instance expressly states that his non-Muslim family may not collect his remains, the question arises as to why other Muslims in death are redeemed by their family members for burial according to Islamic rites.

    If these rights do not exist then surely there is the compromise whereby the family members of the deceased can still give the man dignified burial and not be refused the right to attend if they can accept he was Muslim and made that decision as an adult. His wishes must then be respected in death at least where it may not have been so when he was alive.

    Self respect and respect for others are inextricably tied. He is dead. Let him rest in peace, however painful that may be for those who remain.

  6. Fairminded says:

    Frankly I don’t see what the logic Mais had to insist to bury someone according to Muslim rites if the dead person is not a practising Muslim. After all he had given up on being a Muslim when he was alive, so how does it help the Mais chaps to score a brownie point with God (I am not allowed to used “Allah” being a non-Muslim) if this dead chap is after all not a Muslim at heart? I guess we have too many of these officially appointed religious leaders on our tax payroll that they have to show they are doing something even though it is downright silly.

  7. Adam says:

    It is all about property and nothing else. Sad.

  8. One of the key requirements of Justice is that all people are equal before the law, and are afforded equal protection. Any legal system that deprives some citizens (be it on grounds of religion, race, gender or nationality) of “locus standi” in matters that involve themselves and their loved ones, fails this condition, and cannot be adopted as the legal system of an entire nation.

    If we feel really strongly about this, perhaps we should let our government, and people like Zulkifli Noordin, who seems to believe that the Syariah Court can be fair to non-Muslims, and should become the only legal system in Malaysia, know what we feel about this issue.

  9. We should follow the Maldives and amend the constitution making all citizens Muslims by law. That will end all these problems of death, divorce, inheritance, and so forth.

  10. The courts have no choice, because of an amendment to the Federal Constitution, in 1988, to Article 121(1A).

    Article 121(1A) states that the High Courts and inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

    For as long as this article stands as it is, controversies relating to conversions, custody of children if one parent converts and “body snatching” will persist with no remedy for the non-Muslim party as the [civil] court’s hands are tied.

    I have called time and again for this article to be amended and offered other suggestions.

    So to all you MCA, MIC, PPP and other [BN] component party supporters, when your party leaders talk all manner of things about championing your rights, ask them why did they sit silently and allow this article to be amended in 1988.

    The opposition should initiate a call for this article to be amended and the component party’s mentioned should offer support or forever shut up and stop pretending to be concerned everytime these issues come up.

    Repeal Article 121(1A) now!

  11. Karcy says:

    Thank you Vijay. The whole business of Mohan Singh has been very vague with a lot of speculation from the grapevine.

    It’s not really my body that matters, it’s the money that I work hard to accumulate over the years. If I saved enough money for my next-of-kin to inherit, I don’t want to see it squandered by some state-backed organisation (religious or not) simply because of a dodgy certificate that I may or may not have signed once a long time ago.


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