Thursday, December 29, 2005

Climber left widow an emotional Everest to surmount

Can some kind lawyer or legal expert help here?

I am a bit confused over the case of Everest climber M Moorthy, who passed away recently. The problem of his burial became an issue because of his religion, where his widow insisted that he had remained a Hindu while his brother and friends claimed he had converted to Islam. BTW, his brother is a Muslim convert. Prior to his death he was paralysed and in a coma and naturally couldn’t provide final instructions.

Naturally the widow took the case to court, where the Appellate and Special Powers High Court has ruled that it will not disturb the Syariah Court declaration the late Moorthy was a Muslim at the time of his death. The Appellate Court said that it doesn’t have the power to make a judicial review on the Syariah Court order, nor to ignore or nullify it.

That’s fine and straightforward. But wouldn’t that ruling be dependent on the late Moorthy being confirmed as a Muslim first? But how could he be confirmed if the Civil court said they won’t? That’s where my confusion lies. Surely we must remember that the Syariah court may only decide on matters that involve a Muslim, and not a non-Muslim as the widow has challenged.

My query is, shouldn’t the Syariah court only have jurisdiction over the Moorthy case when it has been proven that the late Moorthy was a Muslim. That's all the family wanted. And that's why they went to the Civil court.

And shouldn’t the Syariah court itself say exactly what the Appellate court declared, that it doesn’t have the power to make a judicial decision on a case where the man’s religion is still in doubt, and thus a civil case to be decided by a Civil court?

The widow took that query to the Civil court for a decision – was Moorthy a Hindu or a Muslim based on evidence? But the Civil court has basically said it won't decide because it has already been decided by the Syariah court. We are backed to square one!

This reminds me of another case involving cross religious jurisdiction. Some years ago, a young Chinese Malaysian girl of non-Muslim faith, aged around 13 and therefore still a ‘minor’, ran off with her Malay (and thus Muslim) teacher. I believe they scooted off to Kelantan where she converted to Islam. I can’t recall whether the police was involved but we may safely assume they weren’t or didn’t want to because the parents had to take the issue to court.

Yes, the outraged parents had to take the case to the civil court about their ‘minor’ daughter, because everywhere they turned to for recourse they met a blank wall. Many thought the case was straightforward where an adult had unduly influenced and even abducted a ‘minor’ who due to her immature age had converted to a different religion without a full understanding of the implications and her responsibilities. Basically, she should be returned to the care of her parents until she reached adulthood.

But the shocked parents were told by the Civil court that they couldn’t do anything because she had converted to Islam and the matter was under the jurisdiction of the Syariah court. Case closed!

Of course words got fairly ugly with many Chinese condemning the underaged and underhanded proselytization as an act of robbing the cradle, and they had very very nasty words about the court’s deferring to the Syariah court on a matter involving a non-Muslim 'minor'. As far as they were concerned, her conversion to the Islamic faith was both legally and morally questionable given her tender age. But they were utterly shocked by the Civil court's inability to see that.

Back to the Moorthy's case, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism feels very disturbed by the Civil court’s ruling. It considers the Civil court’s refusal to hear the facts that the plaintiff (Moorthy’s widow) wanted to present to the court as a serious crisis for non-Muslims because like Moorthy's widow, they would seemingly now be denied legal remedy on such cross religious complications.

They have formed the frightening impression that once the Syariah court choose to make a ruling, that ruling becomes legally paramount and unquestionable, even for non-Muslims, regardless of what facts they may want to present to the Civil court. Thus, many non-Muslim Malaysians found it very hard to accept the Appellate court’s decision, and let me tell you, that's putting it very mildly.

Since the Civil court has refused to make a ruling, the Council called on the Prime Minister and relevant parties to look into what is basically a constitutional matter, namely the jurisdiction to determine the validity of conversions into and out of Islam be codified as vested in the High Court where all Malaysians can be parties and have equal rights as witnesses.

One of Mrs Moorthy’s lawyers A. Sivanesan echoed the Council's observations: “This decision is a setback for non-Muslims. It looks like there is absolutely no remedy in any court.”

Her other lawyer showed the degree of frustration he must felt by sniping sarcastically: “We Hindus believe whatever decision by the court is just in the world. The ultimate decision is by God.’’

For another cross religious case, please peruse Jeff Ooi's Screenshots posting on the Shamala Sathyaseelan story.


  1. Non muslims be forewarned. Check your religious status in your MyCard. Should you die suddenly you may cause unnecessary emotional stress to your family.

  2. Why bother checking your mykad. Even if it says Hindu they still tanam you as a Muslim. Hope the poor stiff doesn't get buried next to the suicide bombmaker whos also in Muslim cemetary.

  3. I think there's a very fine line here concerning the High Court's decision. The application to the High Court was to set aside the order by the Syariah Court for JAWI to seize the body of Moorthy and bury him in accordance to Islam. Bear in mind that the court can only grant reliefs pleaded for specifically in the pleadings, i.e., if a relief is not specified in the application to the court, the court cannot grant it (the court cannot mould reliefs). The court in Moorthy'a case was asked to set aside a Syariah Court order. The Constitution clearly does not allow this. And since the High Court may not initiate an application to declare that Moorthy was or was not a Muslim at the time of his death, the High Court could only decline to hear the case to set aside the Syariah Court order.

  4. Thanks for the legal explanation.