SHAH ALAM, 30 June 2009: Provisions in the Federal Constitution and the Islamic laws of Selangor clearly state that all parties to a dispute must be Muslim in order for proceedings to be held in the Syariah Court, the High Court here was told today.
Lawyer K Shanmuga, who is representing the family of deceased Mohan Singh a/l Janot Singh in a legal tussle over his body with the Islamic authorities, told the court this when rounding up his submissions that the dispute should be heard in the civil court as Mohan’s family members are all Sikh.
Shanmuga referred High Court judge Rosnaini Saub to Item 1, List II in the Ninth Schedule of the Federal Constitution which provided for the state to make its own laws regarding “the constitution, organisation and procedure of syariah courts, which shall have jurisdiction only over persons professing the religion of Islam”.
ShanmugaHe also cited Section 61(3)(b) of the Religion of Islam (State of Selangor) Enactment 2003 that the syariah court can “hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims”.
“It’s there, it’s as clear as day,” Shanmuga said. “It is absolutely trite that the syariah courts are in no circumstances to make decisions which affect non-Muslims.”
The High Court has to decide whether the civil court or syariah court should hear the application by Mohan’s family over Mohan’s body.
The family is challenging the Sungai Buloh Hospital’s decision not to release his body to them for cremation according to Sikh rites, and to let the Selangor Islamic Council (Mais) determine if Mohan was Muslim at his time of death.
Mohan, 41, died of a heart attack on 25 May 2009 and his body has been kept at the hospital mortuary pending an outcome of the dispute.
The family is contending that Mohan had never converted to Islam and that he did not practise Islam while he was alive. Mais is claiming that Mohan converted in 1992, citing his certificate of conversion as proof.
Entities are not Muslim
In arguing that only Muslims could appear in the syariah court, Shanmuga said that Mais could not be defined as a Muslim because it was a body corporate.
He also argued that neither could the other respondents, such as the federal government, be defined as Muslim. And since the applicants, Mohan’s family, were Sikh, the syariah court had no jurisdiction to hear the dispute as none of the parties could be defined as Muslims.
Besides Mais, Mohan’s family have named the Health Ministry director-general, the Sungai Buloh Hospital director-general, and the Selangor and federal governments as respondents. The Malaysian Consultative Council for Buddhism, Christianity, Hinduisn, Sikhism and Taoism (MCCBCHST) are also named as respondents, but it has argued in support of Mohan’s family.
Wrong judgments
Earlier, Mais’s lawyer Haniff Khatri Abdulla told the court that past judgements which may have been wrongly decided or which were per incuriam should still be followed.
Balwant Haniff Khatri said this when replying to submissions by the MCCBCHST in support of Mohan’s family. Lawyer for the consultative council, Balwant Singh Sidhu, had said that certain past judgments by the federal courts giving jurisdiction to the syariah court to decide on religious status were “not good authority”.
Balwant had said such judgments had influenced the outcome of the Lina Joy case wrongly, in which the Federal Court rejected her appeal to have the word “Islam” removed from her identity card, and for the syariah court to determine if she was an apostate.
Haniff Khatri cited Dalip Bhagwan Singh vs Public Prosecutor 1997 in which the Federal Court said it was not for a high court to declare any superior court’s decision as having been wrongly decided.
He told the court that even if a higher court’s judgment may have been per incuriam, the court still had to apply the decision and could not depart from it.
Tomorrow, 1 July, will be the final day for the court to round up of submissions and replies from the applicants. Judge Rosnani said she would set a separate date for a decision. 
Yvonne Young says
If a higher court’s judgment is per incuriam, a wise judge of the lower court may refuse to apply the judgment on the basis that the facts differ from those in the present case. This is what the late Lord Dening (UK) would have done. Some of our wise high court judges have done the same.
Why should anyone follow a wrong judgment?