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“Syariah court’s jurisdiction only over Muslims”

Smiling lawyers
Shanmuga (left) and Rajesh

SHAH ALAM, 19 June 2009: The religious status of deceased film director Mohan Singh must be heard in the civil court based on the most recent court judgements about the syariah court’s jurisdiction and position, the High Court here heard.

Rajesh Kumar, the lawyer for Mohan’s family, told the High Court, which began hearing arguments on jurisdiction today, that all parties to a dispute must be Muslims before the case can be heard in the Syariah Court.

Rajesh referred High Court judge Rosnaini Saub to the Federal Court’s ruling on Latifah Mat Zin vs Rosmawati Shariban & Anor, a case involving inheritance, on 25 July 2007.

“The federal court held that it is not enough that the subject matter of the dispute is within the Syariah Court’s jurisdiction. In addition, it must also be shown that all parties to the dispute professed Islam. The Syariah Court only has jurisdiction if both requirements are fulfilled,” Rajesh said.

He noted that the Latifah decision had come after the Lina Joy case on 30 May 2007, also decided by the Federal Court, which ruled that her renunciation of Islam had to be determined in the Syariah Court.

“Since the Latifah case is the latest, we follow the latest case,” he said.

Mohan’s family, comprising his step-father and sisters, are disputing a claim by the Selangor Islamic Council (Mais) that he was a Muslim when he died on 25 May 2009. Mais has obtained an order from the Shah Alam Syariah High Court which declared that Mohan was a Muslim.

Mohan’s body has been kept at the Sungai Buloh Hospital which will not release it until his religious status is determined.

Mais claims that Mohan, 41, converted to Islam in 1992. However, his family said no one had knowledge of his conversion and that he was a practicing Sikh until his death.

Besides Mais, Mohan’s family is also suing the Health Ministry, the Sungai Buloh Hospital director, the Selangor government and the federal government.

The court only heard submissions from Mohan’s lawyer today. Rosnaini fixed 23 and 24 June to hear submissions from the other respondents.

Position of Syariah Court

Rajesh also cited the High Court judgement on Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron in 2008, which affirmed that the high courts, being creations of the Federal Constitution, had supervisory powers over syariah courts which were “mere courts” established by state law.

“When there is competing jurisdiction between the civil court and syariah court, proceedings in the High Court of Malaya and the High Courts of Sabah and Sarawak must take precedence over the Syariah Court,” Rajesh said.

The 2008 judgement reaffirmed that that the syariah court was an inferior court in legal terms.

“It doesn’t mean that the Syariah Court is a less good court. It only means in legal terms, that it is inferior in the sense that the High Court supervises it,” lawyer K Shanmuga, who is also representing Mohan’s family, told reporters later outside the courtroom.

“Nobody can abolish the High Court. It is in the Federal Constitution. You need a two-thirds majority [in Parliament] to remove and even then, it’s arguable if it can be done.

“But tomorrow, the Selangor state assembly could decide to abolish the Syariah Court as these courts are created by state assemblies,” he said.

Definition of a Muslim

Rajesh also argued that it was unconstitutional to define Mohan as a Muslim under Selangor Islamic law.

He said the State Administration of Islamic Law Enactment which defined a Muslim as one who had converted at any time in their lives, went against the Federal Constitution’s definition of a Muslim.

The Federal Constitution defines a Muslim as one who professes Islam. Mohan’s lawyers are arguing that the literal meaning of the word “profess” refers to the present religion the person claims to believe in.

“Based on case law, and based on the dictionary definition of professed, it means that even if you converted 25 years ago, what is important is what you say today,” Shanmuga told reporters later.

Rajesh had also argued in court that Mohan’s identity card did not bear a Muslim name nor Islam as his religion after he allegedly converted in 1992.

The court was also given Mohan’s marriage certificate and his daughter’s birth certificate as evidence that had married a Christian woman in 1997, who gave birth to his daughter in 2000.

Rajesh pointed out that in both documents, Mohan’s Sikh name was maintained, as was “Sikhism” as his religious status.

Mohan had also performed Sikh burial rites for his mother when she died, and had continued celebrating Vasakhi, the Sikh holiday, even after his alleged conversion, the court was told.

Credibility of witnesses

Appealing to the judge for a fair trial, Rajesh said Mohan’s family members would not be considered credible witnesses if the case was heard in the Syariah Court.

Rajesh cited the Syariah Court Evidence (State of Selangor) Enactment 2003, which stated that non-Muslims could only give bayyinah, the least credible form of evidence under Islamic law.

There are three types of evidence, the strongest being iqrar, a confession given freely by a Muslim, followed by shahadah, the testimony of an eye-witnesses given on oath.

Bayyinah is considered mere evidence and not a testimony on oath.

Muslims who did not fulfil certain criteria in order to give shahadah could only give bayyinah. Such Muslims were those who were considered to be of unsound mind, not of full age, whose credibility was suspect, and who had committed major sins or habitually committed minor sins.

“Non-Muslims as a whole are put together with these categories of persons and are also only allowed to give bayyinah,” said Rajesh.

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