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Religious Liberty

Title: The Moorthy Case
Description: Interview with Mr. Lee Min Choon Legal Advisor, NECF and CFM Chairman, NECF Religious Liberty Commission
        Author: ES (Research)

What is the significance of Moorthy’s case?

 

There have been a number of court cases which decided that a Muslim who wished to leave Islam must get a certificate from the Syariah courts and not the civil courts. Moorthy’s case was one where the court decided that if there is a question whether a non-Muslim had become a Muslim or not, it should be decided by the Syariah courts.

 

What problems did Moorthy’s case create for the family?

 

The High Court refused to entertain a suit from Moorthy’s family challenging the conversion of Moorthy even though they had strong evidence. It was not a case where the family was unable to prove that Moorthy conversion to Islam was questionable. What the High Court judge said was “I cannot hear your case. You must go to the Syariah court.” However, Moorthy’s widow was not a Muslim and cannot bring a case in the Syariah court. Therefore, she was denied a right of hearing which is supposed to be a basic tenet of law.

 

Is the mode of burial for Moorthy that important?

 

It may be important from the point of view of family’s religious understanding.  Besides the issue of burial, the family could face other complications arising from the denial of the right and opportunity to challenge his conversion.

 

1) Estate and inheritance. Moorthy as a Muslim can only make a will over one-third of his property. The rest of his property must be administered according to Islamic Law. This also covers his EPF and insurance monies. In the recent case of the Lim family of Malacca, the family was deprived of the convert's estate which fell completely under the administration of the state Islamic trusts. As a result of public outcry, the religious authorities returned half of the estate to the family but only on an ex gratia basis(The Star, 11 October 2005).


2) Religious status of Moorthy's children. Most states have provisions in their administration of Islamic law enactments to define a Muslim as person who has at least one Muslim parent. One of the legal consequences of a person converting to Islam is that his children also automatically become Muslims. Objection from the non-Muslim spouse would not prevent the children from becoming Muslims.


3) Custody and upbringing of infant children. If any of Moorthy's infant children are deemed to be Muslims then their custody falls to be determined by Islamic law. Most states have provisions to say if the Syariah Court is of the opinion that the mother is disqualified from hadanah (right to custody) it can pass custody to other persons and that a woman is entitled to hadanah if she is a Muslim. Therefore, it is possible for
Moorthy's widow or a non-Muslim spouse to lose custody of her children.

 

How are non-Muslims affected, or likely to be affected by Moorthy’s case?

 

If a non-Muslim is identified as a Muslim and it is disputed, a suit cannot be brought in the civil courts to challenge the fact. We see from Moorthy’s case, it is very easy for Muslim quarters to allege that someone has converted to Islam. There were no documents to prove Moorthy’s conversion except for his army colleagues saying so. The Syariah court seemed very willing to certify a person as a Muslim convert without much of a judicial inquiry. However, it is near to impossible for such a person to get out of Islam. More so, if his conversion needs to be challenged, the civil courts will decline to hear the case.

 

There could be a variety of situations where a non-Muslim could be wrongly identitifed as a Muslim. One would be the Moorthy kind of situation. This was a case where there is a serious doubt that a conversion to Islam took place. Moorthy’s widow brought evidence of Moorthy’s state of dementia and his uninterrupted practice of Hindu rites. In his state of mind, Moorthy could have succumbed to his colleagues’ persuasion to become a Muslim in the most informal of ways. He may not have meant or intended to convert to Islam.

 

Another could be where a non-Muslim is caught in a khalwat situation with a Muslim and is pressured or threatened to convert to Islam and to marry the other party.

 

Mistakes in entering data into birth certificates or Mykad could also occur. If a person’s personal documents wrongly say that he or she is a Muslim, then prima facie that person falls under the jurisdiction (or authority) of the Syariah courts and is barred from going to the civil courts.

 

Most states have Islamic enactments prescribing similar provisions for conversion into Islam. The conversion process usually involves reciting of the Shahadat or the Islamic confessional creed. However, free will is a requisite of a valid conversion. In all the above examples, there is no free will or intention to convert to Islam. Such conversions are theoretically invalid. The most obvious place to challenge this conversion is in the civil courts. If it is proved that the alleged Muslim was never a Muslim in the first place, then the Syariah court has no jurisdiction over him in the first place. Therefore, if there is a likelihood that a conversion to Islam will be proved to be invalid, then the proper forum is the court which the person will fall under if he is indeed proved to be not a Muslim.

 

Thus, at the heart of this problem is which court can a person go to in order to prove that he is not a Muslim or if he is a Muslim to prove that he has left Islam? People who say that they are not Muslims or no longer Muslims generally do not wish to get their “exit certificates” from the Syariah court. By submitting to the Syariah court, a person is saying that he is a Muslim. People caught in both situations described above are basically saying that they are not Muslims. Thus, submitting to the Syariah courts will undermine or will be inconsistent with the legal stand which they take.

 

Is it necessary to go to court over this matter?

 

Usually, there is a need to change one’s official documents eg. Mykad, birth certificate, passport, etc. to show that one is not a Muslim. This will be important if a person who says he is a not a Muslim wants to marry a non-Muslim in a civil marriage or register his newly-born children as non-Muslims. However, the National Registration Department will not change a Muslim’s status to non-Muslim unless there is proof that the person was never a Muslim in the first place or that he had converted out of Islam. This proof is usually a certificate or a declaration from the court. Beginning with the Soon Singh case in 1999, the courts have ruled that it is the Syariah courts and not the civil courts that have the jurisdiction to issue such declarations.

 

Why does this legal complication exist?

 

Previously, the High Court has jurisdiction to make judicial declarations on a person’s religious status. However, in 1988 the Malaysian Constitution was amended whereby Article 121 (1A) was inserted to say that the civil courts has no jurisdiction over any matter that fell within the jurisdiction of the Syariah courts.

 

Unfortunately, the civil courts themselves have ruled that whether a person has converted out of Islam is a matter for the Syariah courts to decide. In Moorthy’s case, the courts have gone further to say that whether a person has converted into Islam or not is also a matter for the Syariah courts to decide.

 

Why was this clause inserted during the 1988 constitution amendment?

 

When the British ruled Malaya, they imposed the English legal system upon a population that consisted largely of Muslims and who had their own Muslim customs that applied in a variety of situations. The first judges were British, of course, and in a number of cases they were called on to decide disputes that involved Islamic principles. In 1927, Justice Thorne of the Supreme Court of the Federated Malay States in the case of Ramah binti Ta’at v. Laton binti Malim Sutan made the following observations: (a) that Islamic practices differed from state to state; (b) that state enactments should be passed to deal with certain issues pertaining to Muslims like divorce and inheritance; (c) that special Islamic tribunals should be established to deal with such issues; and (d) that the jurisdiction of the civil courts should be excluded in such cases.

 

The Constitution of Malaya in 1957 incorporated the framework for Islam to be administered on a state-by-state basis. Powers were given to the state legislatures to pass laws to administer Islam on Muslims. Since then, the states of Malaysia have introduced enactments to administer Islam in their territories by establishing Islamic authorities and structures, kadi or Syariah courts, defining religious offences and establishing Islamic trusts.

 

Up to 1988, the High Court could still intervene and reverse decisions of the Syariah courts or Islamic authorities. Finally, in 1988 the final piece of the puzzle was put in place when the Constitution was amended. The new Article 121 (1A) was intended to define clearly the jurisdiction of both the civil courts and the Syariah courts. Thus, the civil courts had no jurisdcition over matters that fell under the jurisdiction of the Syariah courts. The matters that fell under the jurisdiction of the Syariah courts had already be laid down in the 9th Schedule to the Constitution.

 

Has Article 121 (1A) been interpreted correctly?

 

Basically, a dual legal system had been created for Malaysia: the civil law applying generally on the whole population and running side-by-side with it, an Islamic legal system applying Islamic law in restricted situations on Muslims only.

 

In a dual system, there would be people caught in between the two systems. The Islamic law applied to Muslims only. Such people would be (a) non-Muslims mistaken for Muslims; (b) Muslims wanting to get out of Islam; (c) non-Muslim spouses of Muslims; (d) children of Muslim and non-Muslim parents; (e) non-Muslim parents or siblings of Muslims.

 

It is a fundamental principle of any modern legal system that a person must have access to justice. This means that there must be some court to which a person can go to to obtain relief or remedies. By their interpretation of Article 121(1A), the civil courts have surrendered any jurisdiction or responsibility in respect of conversions into and out of Islam. Thus, they forced the people mentioned above to go to the Syariah courts. People wanting to be declared as non-Muslims do not want to go to the Syariah courts as they feel that they will not get a fair hearing. Indeed, to be asked to be declared as having converted out of Islam is to admit to murtad which is an offence punishable under Islamic law (see the Daud bin Mamat and Kamariah Ali’s cases). Non-Muslim family members of Muslims have no locus standi in Syariah courts meaning they cannot bring a suit in Syariah courts because they are not Muslims. The Syariah courts can only hear cases involving Muslims. Therefore, we have a group of people caught in between the two legal systems in a kind of no-man’s land. They cannot go to civil courts or Syariah courts.

 

Is there a need to clarify or to amend Article 121 (1A)?

 

The present interpretation of Article 121 (1A) by the courts is creating serious problems and hardship for many individuals and families. It is unacceptable that under a constitutional form of government, there are Malaysians who do not have access to justice. If the judges are unable for whatever reason to interpret Article 121 (1A) so as to do justice, then Parliament must step in to address the injustice.

 

Parliament must understand the true meaning of freedom of religion. If one is to have free choice, then there must be mechanisms for peaceful entry and exit from religions. Vital issues of conversions must not be entrusted to forums which are partial by reason of their theological nature. Independent arbiters must be appointed to determine questions of conversions into and out of Islam. The civil courts are the best forums for such issues. If a question of Islamic law or principle does arise, the civil courts can seek a fatwa or an opinion from the Syariah courts. Jurisdiction however must be given to the civil courts.

 

Posted March 8, 2006



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