Dead Body Battle
By Nga Hock Cheh
Of late religious controversy appears to be a hot topic. Even before the court delivered its decision on the “Lina Joy” and “Moorthy” cases, another dispute over a dead body broke out recently in the case of Rayappan a/l Anthony.
It is ironic that instead of cultivating a life of Godly fear in view of the judgment which one must ultimately face, there has been much misplaced zeal or enthusiasm by certain quarters over the burial rites for the dead body.
To the Christians, the burial rites administered to a deceased’s body carries no real spiritual significance. What is important is that the deceased’s name is written in the Book of Life (Rev 20:15). Jesus remarked to the man who wanted to bury his father first before following Him, “Let the dead bury their own dead, but you go and proclaim the Kingdom of God.”(Luke 9:60)
However, we still need to be concerned about the raging dead body battle because it has tarnished the image of Malaysia as a model of a multi -racial, -religious and -cultural country and shaken the fabric of society.
The apparent lack of wisdom in the handling of the matter by certain religious authorities has caused much grief and trauma to the bereaved family and friends of the deceased whose bodies are being battled over.
How it started
During the first 33 years following Malaysia’s independence, there was apparently no reported case of any tussle between the religious authorities and the bereaved family for dead bodies. It was the introduction of the controversial constitutional amendment of Article 121(1A) of the Federal Constitution in 1988 that gave rise to legal disputes on the jurisdiction of the Civil Court.
The said Article 121(1A) reads: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”.
The first reported case was in 1991. In Ng Wan Chan V Majlis Agama Islam Wilayah Persekutuan & Anor (1991) 3 MLJ 174, the wife of the deceased successfully applied for a declaration that her late husband was a Buddhist during his lifetime and at the time of his death.
The then learned judge, Justice Eusoff Chin, ruled in that case that the activities of the deceased during his lifetime clearly showed that they did not conform to the conduct that may reasonably be expected of a person who professed and practised the Muslim religion, and that there should be proper proof of repentance by the deceased of his apostasy.
The said decision is sound in law, sagacious in wisdom and consonant with justice. If only the religious authorities had applied the said judicial wisdom with greater vigour and candour, the dead body would in all probability emit less legal odour and controversy.
The applicants in subsequent reported cases were not so fortunate or successful. They include Md Hakim Lee V Agama Islam Wilayah Persekutuan, Kuala Lumpur (1998) 1 MLJ 681, Delip Kaur V Pegawai Polis Daerah, Balai Polis Daerah Bukit Mertajam & Anor (1992) 1MLJ1; and Soon Singh V Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah (1994) 1MLJ 690.
When the December 2005 tsunami struck, thousands of people were killed and their dead bodies hardly received a decent burial. In some cases, entire families were wiped out and there was no living person left to mourn them or undertake their burial. Isn’t it a pity, if not tragic, that our country should allow the dead body of a convert or purported convert to become a divisive issue?
Isn’t it a pity, if not
tragic, that our country
should allow the dead body
of a convert or purported convert to become a
divisive issue? |
Ways to ease the battle
In the context of a cosmopolitan country, a major paradigm shift is essential to avoid the creation of unnecessary tension and strife in dealing with the dead body of a convert. In this regard, it is respectfully submitted as follow:
(a) The bereaved family of the deceased should be given the right to decide the burial rites for the deceased. Common sense will tell that the bereaved family would always want to respect the burial rites desired by the deceased. They should be left to mourn for the loss of their loved one with whatever compassion and support friends, relatives and the authorities could extend to them.
(b) To qualify a convert for a burial according to Muslim rites in a Muslim cemetery, the burden of proving that the deceased was at the time of his death a practising Muslim should rest on the deceased’s next of kin to satisfy the religious authorities.
(c) The religious authorities or organisations should perhaps focus their efforts on nurturing the convert in his new faith while he was alive. Wouldn’t it be more noble and praiseworthy if the efforts by the religious authorities to give the deceased a decent burial according to his new-found faith be confined to a situation where the deceased convert had been rejected by his family members because of his conversion? Instead of tussling over the dead body, wouldn’t it be better to attend to the living?
(d) Would it be appropriate or fair to the other deceased Muslims, who have been true to their faith, to be buried in a Muslim cemetery with a deceased convert who has become an apostate? (And what if that apostate had been consuming “haram” food?) Wouldn’t the burial of such an “apostate convert” be a mockery of the purported faith imposed upon him?
Conclusion
Freedom of religion in our country is enshrined in Article 11(1) of the Federal Constitution which reads:
“(1) Every person has the right to profess and practise his religion and subject to Clause (4) to propagate it.”
As foresight appears to have been made a prisoner of political expediency, hopefully hindsight will swiftly prevail to redeem the erosion of the constitutional terrain caused by the constitutional amendment to Article 121 of the Federal Constitution.
Whilst the august Chamber wrestles with the dynamics of the legislative surgery to be undertaken, the judiciary through the apex Court should engage itself in bold judicial procreativity in the light of the country’s constitutional history encased in the Reid Commission Report and the Cobbold Commission Report.
This bold act will help exorcise the ghost of the dead bodies that seem to haunt and daunt our racial and religious harmony and peace.
The Christian community in our country should increasingly attempt to understand the global events and the writings on the wall, including those in our country, against the backdrop of Revelations. Before night overtakes, one must labour with greater urgency for the Kingdom of God while there is still light and be grouded in the Word of God to be an overcomer. |
