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There has been great debate recently in Malaysia over the burial of people who Muslims claim “converted” to Islam before their death. Most of the claims come from Muslim family members, thus the case often goes to court, and then it is dragged out for months. This causes the family more pain and suffering than necessary, and the below article discusses how Malaysia and the court system there needs to focus more on the Constitution rather than what the syariah court decides.

The Moorthys and the Mohamad Yas

Malaysia Kini Newspaper (01/05/06)

Umran Kadir

The body of M. Moorthy has become the latest trophy in the religious tug of war. Amidst the legality of whether Moorthy had indeed converted to Islam some have lost sight of the human tragedy of this sorry affair. The two casualties in this episode are undoubtedly his grieving widow and young daughter.

Reflecting on their loss and the unnecessary suffering brought upon them, I cannot help but turn my thoughts to the motives of the instigators of this latest debacle. How could the Federal Territory Islamic Religious Affairs Council and the presiding syariah judge not have realised the trauma that this issue would inflict?

Some of us may like to think their actions were merely misguided, an anomaly perhaps. After all, Islam is supposed to be benevolent and just – surely the arbitrators of syariah law must be too. However, a look at past controversial cases provides alarming contradictions.

As an example, consider the case of the late Mohamad Ya, one of four Ayah Pin followers subjected to incessant persecution by religious authorities in Terengganu. Mohamad Ya died not long after serving two years in jail for “insulting Islam” by his act of renouncing Islam through a statutory declaration.

Drama ensued over his burial when the local authorities prevented his body from being buried in a Muslim cemetery. The syariah system that was so determined to punish him as a Muslim in life was noticeably silent when the opportunity arose to defend his right as a Muslim in death. Eventually he was buried at Kampung Batu 13, Terengganu. His grave was reportedly one of the few monuments left standing after the illegal destruction of the infamous Sky Kingdom structures carried out by government agencies.

But this troubling tale is far from over. On Dec 30, 2005, justice Md Raus Sharif, cited the same tired excuse he used in the Moorthy case (i.e. jurisdictional grounds) to leave two other Ayah Pin followers: Kamariah Ali (widow of Mohamad Ya) and Daud Mamat in legal limbo over their status as Muslims, effectively leaving them open to further persecution by the Terengganu religious authorities.

The cases of M Moorthy and the Ayah Pin followers are polar opposites; yet at their hearts they share the issue of jurisdiction. Schedule IX, List II of the federal constitution limits the jurisdiction of state-defined syariah law to “persons professing the religion of Islam”. Clearly, these Ayah Pin followers and other self-declared apostates no longer fall under that category.

In Moorthy’s case, we find that the Syariah Court decided for itself whether he was a person “professing the religion of Islam”, and therefore under its jurisdiction. In doing so, the court extended its mandate far beyond constitutionally defined boundaries. Syariah courts are today acting ultra vires of the constitution.

The federal constitution is the social contract that is the supreme law of this land. In allowing the constitution and the rights of Malaysian citizens to be undermined, the judiciary has failed miserably in its primary duty.

Both the Malaysian federal constitution and Islamic tenets have been perverted to suit closed minds and the state apparatus has been abused to discriminate against non-Muslims and former Muslims. One need only ask Lina Joy, Nor Aishah Bokhari, Joshua Jamaluddin, Hilmi Mohd Noor, whose harrowing experiences all include abuse of powers by various government authorities.

To prevent further miscarriages of justice clear procedures to enter and leave Islam must be established. These processes must be transparent to family members and guardians and recognised by all branches of government. To ensure impartiality a body independent of syariah courts must be established to process applications from converts and apostates in a timely and unbiased manner.

I strenuously object to the involvement of a state in defining or confining the faith of its citizens. This does not change the fact that Malaysians have the misfortune of living in a society obsessed with the politics of ethnicity. Ethnicity, in defiance of the diverse Malay past, has been artificially linked to faith. Until Malaysians are free of such encumbrances and to prevent future injustices the prevailing legal ramifications necessitate that the above steps be taken.

The continued absence of such procedures will result in more Moorthys and Mohamad Yas, increased inter-communal tension and, deservedly, an increase in negative international publicity for Malaysia . All of which, from both economic and social aspects, amount to a potentially calamitous recipe.