Updated 4.45pm on 6 July 2009
SHAH ALAM, 6 July 2009: The High Court here gave jurisdiction to the Syariah Court to determine if art director Mohan Singh a/l Janto Singh was a Muslim at death, despite his Sikh family’s dispute of his conversion.
Judge Rosnaini Saub said the civil court had no jurisdiction to hear the matter based on the Selangor State Enactment and the Federal Constitution’s Ninth Schedule.
Both laws state that the syariah court has jurisdiction over persons professing Islam and matters that include declaring whether a deceased person was a Muslim or otherwise at the time of death.
With this ruling, the High Court dismissed an application by Mohan’s family challenging the Sungai Buloh Hospital’s decision to withhold his body from them pending confirmation by the Selangor Islamic Council (Mais) on his religious status.
The High Court also dissolved its own injunction issued on 1 June 2009 to stop the hospital’s release of the body to any party pending a decision on jurisdiction.
Mais will now take possession of Mohan’s body from the hospital for burial according to Islamic rites. He will be buried at the Sungai Buloh Muslim cemetery today.
The court also rejected a request by the family’s lawyer, Rajesh Kumar, for a stay of the decision pending an appeal to the Court of Appeals. Despite the rejection, Rajesh said he would file an appeal in Putrajaya today.
Mohan’s family, comprising his step-father and three sisters, were silent when Rosnaini announced her decision. One of the sisters began crying softly.
However, the family was allowed to take the body to their home in Selayang to pay their last respects before they had to hand it over to Mais later, Rajesh said after the court announced its judgement this morning.
Certificate of conversion accepted
Judge Rosnani decided that Mohan’s conversion certificate was acceptable, notwithstanding the dispute by his family.
She found that the purported conversion in 1992 to be a “highly disputed question of fact”, but also said that “the applicants’ averment that they are not aware of the deceased’s conversion to Islam does not mean that the conversion did not take place.”
“It is unfortunate that the deceased [did] not [tell] them,” she said.
Since the court found that the certificate’s existence was “sufficient proof” that he had converted, Rosnaini said that Mohan was therefore a Muslim. His Muslim name, according to the certificate, was Mohammad Hazzery Shah Mohan Abdullah.
She also said that even though the Penang Administration of Muslim Law Enactment 1959, which governed Mohan’s conversion in 1992, did not have a provision to regard a conversion certificate as conclusive, it did not mean that the court could not accept the document.
She said the certificate was issued as an administrative practice to record conversions to Islam, and “in [the] absence of any evidence that the certificate is a forgery or was fraudulent, there is no reason why this court should not accept it as proof of conversion”.
Lifestyle versus the law
Mohan’s family had disputed his conversion through affidavits filed by one of his sisters, Baldi Kaur a/p Janto Singh, who said Mohan had always lived in Selangor. His conversion certificate states that he converted in Penang.
Baldi Kaur also said the family had no knowledge of his conversion as Mohan had lived like a Sikh even after 1992. He married a non-Muslim who bore him a child who was given a Punjabi name. In his marriage register and in his child’s birth certificate, he maintained his Punjabi name and Sikhism as his religion.
He also performed Sikh funeral rites for his mother. And there was no change in his identity card details after his purported conversion.
Judge Rosnani said that even if a convert’s lifestyle was inconsistent with that of a Muslim’s, it “does not alter his status as a Muslim in the eyes of the existing law”.
She ruled that even though Mohan converted in Penang, the Selangor enactment deemed anyone who was registered anywhere else as a Muslim a convert in the state of Selangor unless the syariah court declared otherwise.
She also rejected the submission by the family’s lawyer that Mohan’s conversion was never registered. She cited a letter from the Penang Islamic Religious Affairs Department dated 25 May 2009, the date of Mohan’s death, confirming that he had converted to Islam and was registered in Penang.
Case law
Referring to the case law raised during the arguments on jurisdiction, Rosnaini said that even if not all parties to a dispute were Muslim, it did not mean that the civil court had jurisdiction to hear the matter.
She said this was especially so if the subject matter was within the domain of the syariah court, such as, in this case, the question of whether Mohan died a Muslim.
She said Article 121(1A) of the Federal Constitution prohibits the civil court from interfering in such a matter.
“Therefore, it cannot be a correct proposition of the law when the applicants’ counsel submitted that the civil court shall have jurisdiction over the subject matter because the applicants are non-Muslim,” she said.
During submissions, Mohan’s family’s lawyer had argued based on the case of Latifah Mat Zin v. Rosmawati Sharibun & Anor, in which the judge decided that all parties to a dispute must profess Islam in order for the dispute to be heard in the syariah court.
Where do they go?
Rosnaini acknowledged that Mohan’s family had neither recourse in the syariah court because they were non-Muslims, nor in the civil court because it had no jurisdiction over the subject matter of Mohan’s religious status.
To this, she said the matter had to be resolved by lawmakers and not by the courts.
She cited Tun Abdul Hamid Mohamed, who was the Federal Court judge in the Latifah Mat Zin case, who, in his judgement said that since neither court had jurisdiction based on the state and federal laws which created them, it was up to the legislators to remedy the situation.
“Either court obtains its jurisdiction from statute, not from the fact that the other court does not have jurisdiction over the matter. …Where can the applicants go in such a scenario?…It is not the court’s function to remedy it,” Rosnaini said, quoting Abdul Hamid. 
Nancy says
OK, get ready to have this guy buried as a Muslim, even if he has not been a practising Muslim as claimed by his family members.
At least in Malaysia, we can decide in favour of the official faith of the country.
See what happened to Michael Jackson?
He converted and it was widely publicised.
(http://www.telegraph.co.uk/news/newstopics/celebritynews/3494296/Michael-Jackson-converts-to-Islam-and-changes-name-to-Mikaeel.html)
There is even a Youtube posting.
http://www.youtube.com/watch?v=BD5tqRqkWCI
Let’s see how MJ is buried as it’s too late for any righteous religious authority to claim MJ’s body and ensure it is treated according to the faith he embraced last year.
Azizi Khan says
Passing the buck much ?
My heart goes out to the family. They stand a snowball’s chance in hell to get their way from Syariah Court.
AK.
Ritchie says
No jurisdiction to determine if Mohan Singh died a Muslim? If that is not a statement of the highest hypocrisy, deceit and cowardice, I do not know what is. The civil court does indeed have in its legal framework, jurisdiction and power to investigate the fundamental principles of law. That is to determine or verify evidence if a person was ever a Muslim or not.
To abdicate itself of this and to selectively excuse itself of this responsibility is a great travesty. Is the Syariah Court infallible in such contentions? The questions brought to the civil court was this: Was he a Muslim? Was his conversion genuine? Was it under duress? Did he “convert” for reasons deemed valid under civil and religious tenets or was it out of convenience?
By indiscriminately excusing itself of authority, the civil court has perpetuated four major evils. First, it has violated the trust of non-Muslim Malaysians who seek justice from its office. Second, it has abused the legitimate process, mechanisms and functions of law in dealing with intrinsic issues pertaining the truth or falsehood of the case. Third, by abdicating its authority and responsibility to a religious Muslim Court while the context and concerns is of the rights of a non-Muslim. Fourth, it has elevated the Syariah Court to a status of infallibilty over the judiciary and Courts of Malaysia.
In doing so it has esteemed the Syariah Courts’ powers to a “consummate” status, giving unrestricted power to an individual or community who claims someone to be Muslim. And such proclamations cannot or “will not” be entertained by the Malaysian civil courts. Whether it is out of fear or pressure, Malaysians are increasingly alarmed at such pernicious conduct by the courts.
The scenario now is that any Muslim backed by a religious body can make a claim that someone is Muslim, and such a claim, whether true or false has been enthroned to be superior than any persons refuting it.
This has put every non-Muslim in this country at grave risk, and it is the ultimate mockery of the constitution and its decrees.
Nicholas Aw says
Now that the decision has been made to refer Mohan Singh’s case to the Syariah Court, it has prolonged the matter. The agony of the deceased has ended but the agony of the living still continues.
Unless and until the amendments regarding conversion are expedited by the rulers and then passed by Parliament, there will be no end. No one wins whenever another case in the likes of Mohan Singh, Lina Joy and others are brought to light.
In reality, it creates a lot of unhappiness to the parties involved and obviously the non-Muslim party would be bitter about the whole affair and this ‘misunderstanding’ would paint a very negative picture of Islam. It does not end here as this religious issue would become political in nature and does not do any good for racial harmony.
Therefore, the rulers and the government should make more than a concerted effort to amending the laws to ensure a win-win situation and also put to rest once and for all issues of this nature.
Karcy says
Can someone enlighten us on what the legal implications of this case will be?
Joon says
“It is not the court’s function to remedy it”
“…it was up to the legislators to remedy the situation.”
So, what does the non-Muslim Malaysian do? Are we treated fairly and equally as a Malaysian born here? What’s the solution to this issue? Anyone care?
Hang Tuah 1 says
Rosnaini acknowledged that Mohan’s family had neither recourse in the syariah court because they were non-Muslims, nor in the civil court because it had no jurisdiction over the subject matter of Mohan’s religious status.
—
Malaysia is already an Islamic state.
And in the Islamic state, non-Muslims have no rights.
Civil courts are powerless and inferior.
This is sad and a shame.
My heart and sympathy goes to Mohan’s family.
Religious authorities are heartless.
Islam is again given a bad name.
Today in schools,
Muslim teachers are braver in shaming others,
In school assemblies and in classrooms.
They are eager to convert these students.
Let the painful episode of Mohan and others remind us.
There are Muslims who don’t care if you have genuinely converted.
They don’t care if you want to renounce the religion.
They don’t care if you still believe or practise.
They care when you die – they will take your corpse away,
and leave behind your family in tears and powerlessness.
The courts don’t care if your loved ones drop dead crying.
The syariah court will decree your dead corpse be forcibly removed.
Shame – we must tell non-Muslim Malaysians: such things can happen to you!
Erina Heights says
Just a point of interest. (Want to learn more; no ill intentions meant).
Appreciate if some learned Muslims can enlighten us on this issue.
What happens if a Muslim (converted or otherwise) died and IS NOT accorded a Muslim burial?
Would that diminish his [or her] chances of going to heaven according to the Islamic faith?
I think this is a pertinent matter to consider.
The general public (both Muslims and non-Muslims) is begging to understand the motivation behind the zealousness of the Majlis Agama Islam Negeri-negeri in burying dead people whose religious status is in dispute at their time of death. (Especially when the closest relatives are the ones disputing the religious status.)
Awaiting some kind Islamic souls to enlighten us on this matter.
Cheers.
Right2Choose says
This was timed to coincide with the Manik Urai by-election? With the electorate 99% Muslims, this will surely help BN. Do you think they really give a damn about this guy or his family?
Man says
I hope everyone reads the judgment and reasons of the High Court judge first before making comments, adverse or otherwise.
I understand that the judge gave an elaborate judgment and did consider the evidence produced by Mohan’s family and Mais and also the relevant laws before ruling that, based on existing laws, Mohan is deemed a Muslim as his conversion has been proven by the conversion certificate.
To me, if the law says so, the court has no alternative but to apply it. If the law is unfair, then it is Parliament or the state assembly who made those laws who are to blame. Didn’t the judge just say that it is for the lawmakers to remedy the seemingly unfair situation?
So I think we should try to understand what the law [says] first on this issue before we make any conclusion?
Mike says
So, we are supposed to believe that the guy was a Muslim for SEVENTEEN YEARS, his family NEVER NOTICED, and this was “genuine” faith???
Arion Yeow says
I would like to know what does Mais get from claiming the body. Do they get a percentage of the deceased’s estate as well? I’ve been listening to urban legends of huge amounts of money being raised by Mais from disposing the assets of converts but have no way to verify it.
Azizi Khan says
Let this be a lesson to all non-Muslims [in Malaysia].
Do not buy into any talk that Islamic policies will be fair to you [in Malaysia]. Time and time again, in cases such as this, Islamic departments and legal systems have failed you.
The primary responsibility of these Islamic policies [in Malaysia] is for Muslims. Non-Muslims will always be second rate.
This is why we need to fight to keep Commonwealth law as supreme. Islamic laws have no place in a modern society no matter how well it worked centuries ago.
I am deeply saddened by this story.
AK.
Karcy says
Funny Azizi, I’m a non-Muslim but I don’t see this as a problem related to Islam. I don’t see how the case involves any kind of Islamic theology — not the Quran nor Hadith nor Qias nor Ijma is in place. [The case has] everything to do with the fact that there are loopholes in the legal system that jeopardises the right of the deceased and his or her family.
Moslem says
Salam Alaikum, Peace be upon you all.
Some people have raised the question how can a person not inform others [about his or her faith] for a long time. But I have seen this with several people in India where they have not told other family members that they were Muslims but died as such. One such person never [went] to [the] mosque but had a room where he worshipped alone. He used to read the [translated] Holy Quran and when he died they had to bury him in his farm land as he [disclosed] in the end about his hidden faith.
In other Gulf Muslim countries, this has also happened and the government approves the burial of such deceased persons as per Islamic laws. Why they don’t tell, that is up to them. Maybe the concerned person is very worried about the results of such an open declaration before his family and friends.
There are so many in the world. Even during the time of the Prophet Muhammad (peace be upon him), you will read in the Holy Quran how Allah saved the city of Makkah from fighting between the people. Because Allah declared that there were people who were professing Islamic faith in their hearts because Allah knows everybody’s heart and faith and had the Prophet gone [in an] all out war against the Makkan enemies of Islam, then there would have been killings of Muslims [by] Muslims hands. But Allah averted this with the last moment conversion to Islam by the pagan leader at that time – Abu Sufiyan. He converted to Islam and then there were no leaders to carry on the fight against Islamic forces under the Prophet’s leadership which came from Madinah City to liberate Makkah and Ka’aba from pagan worship […].
I have met a person and so many other persons who are not yet Muslims but they know [they don’t belong to the religion others prescribe on them] and they say Islam is the truth. There is a time when they will declare Islam as truth. That is because Allah has fixed a time for everything and it cannot happen before or after that. Thank you.