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The Moorthy Maniam case:

Compassion and justice missing

Conflicting legal systems are undermining constitutional safeguards and ethno-religious understanding

by Aliran
Aliran Monthly Vol 25 (2005): Issue 11

start_quote (1K)As for civil society, we have to begin to push for a permanent inter-religious organisation, whatever form it may take.
end_quote (1K)

With one stroke, the Islamic religious authorities, the government and the dual system of administration of justice have undermined recent efforts to promote inter-ethnic and inter-religious understanding.

All that talk of “Deepa Raya”, “Kongsi Raya”, festive season “open houses”, Malaysia being a model of inter-religious tolerance and harmony and of a moderate Muslim nation has come to naught.

All these are meaningless unless there is compassion and mutual respect in our everyday relations with one another. Indeed, the beauty or essence of religion lies in compassion, justice, love and peace. Above all, we must treat others with the dignity that is inherent in us as human beings, as God’s children.

These cherished values were missing in the recent Moorthy Maniam @ Mohammad Abdullah case, which saw a legal tussle over whether he had actually converted to Islam before his death. Instead, what we saw were negative vibes and machinations that brought to the surface all that is ugly in the human race. There was no dignity or empathy for the grieving family in the whole affair. Nor did the religious department distinguish itself and Islam’s deep commitment to justice in this sorry affair.

Consider S Kaliammal, Moorthy’s wife. Here was a woman who had cared for the former mountaineer since he was paralysed in 1998 - only to see her husband suffer a second accident in November 2005, which ultimately caused his death on 20 December. She had said that Moorthy had performed his Thaipusam rites by carrying a paal kodam (milk pot) and celebrated Deepavali in 2005 – as documented by TV3.

In her letter to the Human Rights Commission of Malaysia (Suhakam) in early January, Kaliammal said that ‘if at all Moorthy had converted, it was not of his own free will. Since 1998 when he became paralysed, Moorthy was always ill and had lost his powers of concentration’. The point is Moorthy’s conversion was disputed.

Yet, during the month of December 2005, the Federal Territory Islamic religious authorities had not made any claims to counter this – even though they claimed that he had become a Muslim much earlier and had changed his name to Mohammad Abdullah. Neither did they offer to assist Kaliammal in her hour of need or rally around to console her in her grief.

Instead, when Moorthy died on 20 December 2005, the FT religious department officials quickly claimed the body. Kaliammal went to the civil court for relief but the court was on vacation and her case was fixed for mention at a later date. In the meantime, on 22 December 2005, the religious department went to the Syariah Court, ex parte, and within an hour, obtained an Order giving them the right to the last rites.

When the Appellate and Special Powers division of the High Court finally sat, Senior Federal Counsel Mohd Nasir Isa, after probing by the judge, admitted that Kaliammal “has no remedy”. (The Star, 28 December 2005). Justice Datuk Md Raus Sharif then pronounced on 28 December that the court could not go behind the Syariah Court Order, even though it affected Kaliammal’s rights.

The result: Kaliammah was denied relief without a hearing on the merits of her case in the High Court, which relied on the Syariah Court Order, obtained ex parte, that is without hearing Kaliammal. Moorthy was buried on 28 December 2005 according to Islamic rites.

Larger issues at stake

Since the constitutional amendments of 18 March 1988 to raise the standing of the Syariah Courts to an equal status with the civil law courts, there has been a crisis because of a conflict of laws and two overlapping legal jurisdictions. The inserted Article 121 (1A) states that the civil courts, despite being federal-level courts, shall have no jurisdication in respect of any matter within the jurisdiction of the Syariah courts, which are, in fact, state Islamic courts.

The 1988 Constitutional Amendment Bill was rushed through Parliament without giving adequate time for MPs and the country to study and debate their far-reaching implications. The Bill was tabled in Parliament for first reading on 17 March 1988 and passed the next day on 18 March 1988 by a margin of 142 for and 18 against.

At the time the bill was passed, seven DAP MPs - including some of the most vocal parliamentarians such as Lim Kit Siang, Karpal Singh and Lim Guan Eng as well as the late P Patto and V David - were under ISA detention at the Kamunting Detention Centre following Operation Lalang in October 1987.

Article 121(1A) has since created grave injustices in a string of cases. In the Moorthy case, Kaliammal found herself with no legal remedy. The wife took her case to a civil court, where the judge ruled that the court did not have jurisdiction. The wife’s position was simply untenable. She had no court she could turn to for justice or a remedy, much less to present her evidence.

Surrendering ground

What we have seen in recent years is that although litigants can go to the civil courts for redress regarding their renunciation of Islam or because their spouses had converted, the judges invariably divest the court of jurisdiction to make a ruling and instead surrender ground to the Syariah Courts as the authority in such cases.

In a recent custody case, Shamala Sathiyaseelan had asked the civil court for an order to declare that the conversion (by her estranged husband, who had converted to Islam) of her two infant children to Islam without her consent was null and void. In April 2004, the High Court dismissed the case on the grounds that the civil courts did not have the jurisdiction to hear the matter and only the Syariah Court could decide on such matters. Further, the judge agreed that she did not have the standing to appear in the Syariah Court.

The High Court, however, gave joint custody of the children to Shamala and her husband, who had converted to Islam. But care and control of the children’s daily lives was given to Shamala - but subject to a caveat. The condition was that if Shamala taught her children her Hindu faith or made them eat pork, she would lose the right to actual custody (see AM Vol 24, Issues no 7-9).

In the Lina Joy case in 2005, the civil courts had to decide whether the National Registration Department was right in rejecting her application to have “Islam” deleted from her identity card on the grounds that she had renounced Islam via deed poll.

The Court of Appeal dismissed her case by a majority 2-1 decision on grounds that her renunciation of Islam was not confirmed by the Syariah court or any other Islamic authority. Therefore, the court ruled, the NRD could reject her application to amend her identity card. Justice Datuk Gopal Sri Ram, a non-Muslim, said in a minority decision that the NRD’s decision was null and void and of no effect.

Returning to the Moorthy case, the High Court judge even refused to allow Kaliammal a stay of execution pending appeal to the higher civil courts.

Trapped in nowhere land

Non-Muslim litigants, it now appears, do not have any recourse at all in certain cases. This was made clear in the High Court hearing by the Federal Counsel representing the government as well as by the representatives of the Bar Council and the Malaysian Consultative Council for Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) who were present. In the end, Justice Raus Sharif also similarly ruled. If one does not have a standing in one of the jurisdictions where a case is heard, can there be a fair trial? Is natural justice being denied here?

In all probability, this was the reason why Nazri Aziz, a minister in the Prime Minister’s Office, argued that the civil court should have been allowed to hear the case. ‘Let evidence from both sides be produced. But if a person is a confirmed Muslim without dispute then it goes to the Sharia Court; there is nothing else to be done. The question in Moorthy’s case was whether he was indeed a Muslim in the first place. If we let the Muslim Court decide this, justice might not be served because it would decide in favour of Islam,’ he was quoted as saying in the New Straits Times (29 December 2005)

Indeed, the president of the Syariah Lawyers Association claimed that non-Muslims could seek justice or remedy in any Syariah Court under Section 244 of the Akta Tatacara Mal Mahkamah Syariah (Federal Territories) 1998. This section gives wide powers to the Syariah Court to make any necessary order to ensure that justice is done.

But the larger question is why should non-Muslims go to a court that is based on religion, especially one that is not their own? Why should they have to go and seek redress in an Islamic court and be subject to Islamic religious laws when the civil courts should be the proper avenue for natural justice? When non-Muslims have to subject themselves to Islamic law in the Syariah Courts instead of the civil law for the sake of obtaining justice, does this not mean we now have an Islamic State?

In a sense, this brings us to the heart of the problem. Since 1988, the conflicting jurisdictions between the civil and the syariah courts have become increasingly evident. More and more, these parallel legal systems have further entrenched ethnic-religious divides in our society.

Act now

We must act now before the situation worsens.

The Prime Minister should convene a meeting of legal experts from a broad spectrum who can empathise with these kinds of dilemmas and resolve them so that there will be no more discrimination. The law should facilitate the right of all citizens, regardless of religions, to freely convert from one religion to another, provided they have reached the age of majority, are of sound mind and not pressured by any person or group.

As for civil society, we have to begin to push for a permanent inter-religious organisation, whatever form it may take. Unlike the MCCBCHS – with due respect to the work they are doing – this organisation should include Muslims as well. This will provide a forum where issues like this can be discussed and suggestions put forward to the government for action. No doubt, the matter can be ‘sensitive’, as the prime minister opined in March 2005, when he urged a group of Malaysians of all religious backgrounds who were calling for the formation of an Inter-Faith Commission to drop the issue because the time was not right. Yet, ducking the issue is not going to solve such a “sensitive” problem, is it?

Yet, the current modus operandi of conflict resolution has reached its upper limits especially when it comes to matters of religion. It won’t be long before it fails in a comprehensive sort of way. As responsible citizens, we must ask for something more formal, effective and efficient in dealing with our cultural fissures and, most of all, our faith-lines.

Parliamentary Roundtable on Art. 121 (1A) of Federal Constitution
Date: 5 Jan 2006
Venue: Parliament

Resolutions adopted at the Parliamentary Roundtable on Art 121 (1A) of Federal Constitution:

Resolution 1
Call for restoration of the pre 1988 Art 121of the Federal Constitution and the repeal of Art 121 (1A) of Federal Constitution.

Resolution 2
Call on the Prime Minister to agree to the establishment of a Parliamentary Select Committee on the problems created by Art 121 (1A) of Federal Constitution.

Resolution 3
Civil Society is gravely concerned and dissatisfied with the denial of justice in Moorthy’s case and similar cases.

Resolution 4
This forum expresses grave concern at the manner in which the various state religious authorities enforces Islamic law in particular against non-Muslims.

Resolution 5
Call upon the AG and AG’s Chambers to act in the public interest in Moorthy’s and all similar cases and to represent equally the rights of all citizens with full regards to the entrenched values of equality in the FC irrespective of race and religion.
We also need to consolidate our democratic institutions for they offer the best protection of the rights of all Malaysians, including those from minority groups. Judges must be courageous and dispense justice without fear or favour. Legislators should wake up and challenge bills that are unjust just as the women Senators did recently over amendments to the Islamic Family Law (Federal Territory) in the normally timid Upper House. Lack of familiarity with the matters at hand should not be an excuse for inaction - for there are civil society organisations with the necessary expertise to advise the legislators. Alas, in the family law amendments episode, despite the tearful protests of the women senators, the Bill - though discriminatory of women and still full of flaws - was passed. And yet, were these women senators serious about protecting women’s rights instead of their own positions, they would have rebelled against the ruling coalition’s whip and voted accordingly.

Indeed, there is an urgent need to broaden our understanding of national unity. It is not merely the absence of conflict. “National unity” must be built on stronger foundation. In Aliran’s submission to the Parliamentary Select Committee on National Unity in July 2005 (see AM Vol 25, No 8), we argued that national unity should be propped up by five pillars, namely:

  • A celebration of our diversity
  • A commitment to pluralism
  • Respect for democracy
  • Dedication to justice
  • Solidarity with all in need.
Similarly, the ideas and proposals of participants of the Parliamentary Round-table on Article 121 (1A) of the Federal Constitution (see box) needs to be seriously studied and considered for adoption.

The silver lining in the Moorthy legal battle has been the dissent expressed in the newspapers by Malaysians of all religious backgrounds who disagreed with how the FT Muslim religious authorities have been conducting themselves. The newspapers, for their part, should be commended for publishing such dissenting views and for not fanning religious chauvinism.

This episode provides ample evidence that there is compassion and mutual respect among ordinary Malaysians despite the despicable attempts of religious zealots to stamp on it. But more people must stand up and be counted. After all, did we not give the Barisan Nasional an overwhelming mandate in Parliament in 2004? For, in truth, we get the government we deserve!

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