RIGHTS-MALAYSIA: Forced Islamic Burial of Hindu Shocks Minorities

By Baradan Kuppusamy Reprint | | Print |

Baradan Kuppusamy

KUALA LUMPUR , Dec 29 2005 (IPS) - The forced Islamic burial, this week, of M. Moorthy, Malaysia’s first Everest climber and a born Hindu, was bad enough, but what has shocked people of all faiths was the refusal of a civil court to intervene in a case it deemed fell under Islamic Shariah laws.

After protests and appeals by Kaliammal Sinnasamy, the wife of the dead man, fell on deaf ears, questions have begun to be raised by both Muslims and non-Muslims on the validity of constitutional guarantees to freedom of religion provided to Malaysia’s plural society.

But the ruling has dismayed members of minority groups who are additionally concerned about the lack of fairness and transparency in cases where non-Muslims come into legal entanglement with Islamic laws.

The court ruled that it had no jurisdiction over Islamic matters and dismissed an application by Kaliammal to claim the body of her husband from a hospital mortuary and dispose it according to Hindu rites.

Islamic authorities argued that Moorthy, 36, who died on Dec. 20 of complications arising from a road accident, had converted to Islam and therefore, must be buried as a Muslim. They, however, did not produce any evidence to show conversion had taken place but produced, instead, a declaration by the Shariah court that that he was a Muslim.

Kaliammal argued that Moorthy was born a Hindu and remained a Hindu until his last day. He drank alcohol, ate pork and prayed to Hindu deities throughout his life, she declared. She also said he could not have competently converted because he had fallen into a coma after the accident.

Moorthy was a Hindu when he became a national hero in 1997 as a member of the first Malaysian expedition to scale the world’s highest peak, Mount Everest. And he was known to have been a follower of that faith until he lapsed into a coma after a road accident, in November.

But judge Raus Sharif ruled that not only did civil courts have no jurisdiction over Islamic matters but that non-Muslims have no remedy in the civil court, when entangled with Islamic matters.

“This court cannot undo, vary or overrule any decisions made by the Islamic Shariah court,” Raus said. “We have absolutely no jurisdiction over Islam. This is the purview of the Islamic Shariah court.”

The judgement has shocked Malaysia’s non-Muslims who form about 40 percent of the population of 26 million people. Many moderate Muslims are also upset by the refusal of the civil court to adjudicate and grant remedy to Kaliammal.

Malaysia’s minority groups include Hindus, Buddhists, Christians and Sikhs. However, the official religion is Islam and a Shariah Court system was introduced in the 1980s to apply to Muslims.

The civil courts remained the ultimate arbitrator until 1993 when the constitution was amended to remove their primacy over the Shariah courts.

“The judgement is the greatest setback for non-Muslims in the country,” said A. Sivanesan, counsel for Kaliammal. “The Shariah court decision is final and not to be challenged by any court in this country. Unless there is a change to the law, there are no safeguards for non-Muslims in the country.”

“This is a let down…a great tragedy to secularism, civil society and to the inviolability of the federal constitution,” said lawyer Haris Mohamed Ibrahim, a Muslim, who appeared for the Bar Council in the case.

“I pity the wife… her husband was buried by strangers,” Haris told IPS. “The judgement leaves millions of non-Muslims in the lurch.”

He called it a “frightening proposition” that there is no remedy in the civil court. “The universal principle has always been that relief and remedy were ancillary to a cause of action and not separable.”

“Where there is a right, there is always a remedy. Remedies always follow rights. When one party is a non-Muslim, the forum cannot be the Shariah court because of this principle,” Haris reasoned.

But, Muslim leaders welcomed the judgement saying it removed some ambiguities. “We want the law further amended to prevent non-Muslims from going to civil courts over Islamic matters,” said Mahfuz Omar, a senior leader of the opposition Pan Malaysian Islamic Party or PAS. “It only delays Muslims from performing necessary rites,” he said.

“Non-Muslims can surrender to the jurisdiction of the Shariah court if they want justice in such matters,” argued lawyer Muhamad Burok for the Islamic Affairs Department. “Islam is a religion of justice, which serves Muslims and non-Muslims alike.”

It is an argument rejected by non-Muslims. “The argument is fundamentally flawed,” lawyer A. Kanesalingam told IPS. “We are not Muslims and we can’t go to the Islamic court. But now, after this judgement, we can’t go to the civil courts either.”

The influential Consultative Council of Buddhist, Christian, Hindu and Sikhism said they were “shocked and shaken” by the decision and added that the way out is for the constitution to be amended to allow the civil court to decide on cases of conversion to Islam.

The bone of contention is Article 121 (1A) of the constitution which states that matters pertaining to Islam come under the purview of the Shariah Court. The multi-religious council wants an amendment to allow civil courts to adjudicate where non-Muslims are involved.

“We call on the government to urgently cure this grave defect in our legal system by making the necessary amendments to the federal constitution and all other legislation so that jurisdiction to determine the validity of conversions into and out of Islam are vested in the High Court where all Malaysians can be parties and have equal rights as witnesses,” the council said in a statement.

Council vice-president Harcharan Singh said that while the federal constitution – the country’s supreme law- guarantees freedom of faith, this right has now been usurped by Shariah court.

”The present laws give plenty of protection to the Muslim community whilst non-Muslims have very little protection,” said A. Vaithialingam, president of the Malaysian Hindu Sangam. “The government must seriously review all existing laws to correct the imbalance.”

While minorities demand greater safeguards, Muslim attitudes have hardened, especially among administrators of Islamic affairs.

They favour greater “Islamisation” of the government and the population, political observers say. “There is a strong and pervasive feeling, especially after the Sep. 11, 2001 attacks that Islam is under threat and that Muslims must rally to defend the religion,” the analysts told IPS.

In January, religious police raided a nightclub, rounded up scores of young Muslims and charged them for ‘indecent dressing’, a catch-all-clause. But the charges were dropped following a public uproar.

In August, Islamic authorities brutally tore down the “teapot” commune, a bizarre but harmless sect run by a mystic called Ayah Pin, who claimed divine powers. His Muslim followers were fined heavily and even jailed for participating in a ‘deviant’ cult.

“Feelings of insecurity are probably why the Islamic authorities fought so hard over the dead body of the soldier,” said an academic, who declined to be named.

But the last word has not been heard yet with Kaliammal appealing to a higher court for an order to have the body of her husband exhumed.