(Malaysiakini) In the ongoing battle surrounding Mount Everest climber S Moorthy who was buried as a Muslim despite his widow objections, the lawyers of the bereaved S Kaliammal has accused the Federal Territory Religious Council (MAIWP) of acting in bad faith (mala fide) when it obtained an ex-parte (based on a single party) order from the Syariah Court to declare the deceased a Muslim.
Counsel M Manoharan told the Court of Appeal today that MAIWP's application was made suddenly and with haste, on Dec 21, 2005 just one day after Moorthy's death without informing his client Kaliammal (right, in photo), thus depriving her of her right to be heard. Manoharan said this during submissions for Kaliammal's application to reverse an earlier High Court decision in Devember 2005 to dismiss her bid for a declaration that Moorthy was a Hindu at the time of his death.
"This ex-parte order may also cause the non-Muslims to fear, because the Syariah Court seems to be trespassing in areas which it has no jurisdiction. In this case it has denied Kaliammal her rights," said Manoharan when approached by Malaysiakini after the conclusion of the Appeals Court hearing today.
The earlier High Court decision was made by judge Mohd Raus Sharif based on the ex-parte order from Kuala Lumpur Syariah High Court, which ruled that Moorthy, also known Mohamad Abdullah, was a Muslim and thus his religious status was out of the Civil Court's jurisdiction.
The earlier High Court decision was made by judge Mohd Raus Sharif based on the ex-parte order from Kuala Lumpur Syariah High Court, which ruled that Moorthy, also known Mohamad Abdullah, was a Muslim and thus his religious status was out of the Civil Court's jurisdiction.
Kaliammal filed an application for a judicial review of the decision in January 2006, but had to wait nearly two years because M Manoharan had subsequently been detained under the Internal Security Act.
"We want the case to be sent back to the High Court and be heard again based on merit," said Manoharan.
He contends that as Kaliammal is a non-Muslim, the Civil Court must be the court to try the case, and not the Syariah Court which is exclusively for Muslims.
"She wants to (establish) the religious status of her husband at the time of his death," he explained.
Manoharan (left) in his submission criticised the MAIWP for using the "the back door" ruling of obtaining the ex-parte order, when they really should have brought their evidence - that Moorthy has converted to Islam - to the Civil Court to be heard and ruled on
At this juncture the bench requested the lawyer to rephrase his words, whereupon he changed the term "back door" to "without telling anyone", to stress what he maintained was the stealth of the move by the MAIWP.
Manoharan also claimed that they have evidence in the form of affidavits that will prove that "at all material times" Moorthy was a Hindu, evidence which he says was never heard by the High Court in making its earlier dismissal of their application.
'Only doing our job'
However Sulaiman Abdullah, the lead counsel for MAIWP, which is named as the first respondent in the appeal, strongly refuted Manoharan's allegation that the council had any bad intentions.
"The council was only trying to do its job in difficult circumstances," said the counsel.
Sulaiman also argued that Mohd Raus had ruled correctly in declining jurisdiction, as the matter of the religious conviction of a Muslim ultimately falls under the powers accorded to the Syariah Court, as provided for by the constitution under 'powers accorded to the state'.
Senior Federal Counsel Mohamad Nasir Bin Disa, lead counsel for the Kuala Lumpur General Hospital and the federal government – the second and third respondents respectively - also denied that the application for the Syariah Court order was made without Kaliammal's knowledge, saying that nothing in her affidavit said that she was unaware of the matter.
Counsels for both the government and the religious council maintained that they have informed Kaliammal of their intention to seek the order, but she "did not avail herself" to cooperate with them.
"We met her and told her that we are going to get the order, but she and her lawyers said that they will not have anything to do with the Syariah Court," he added when met by Malaysiakini after the court had adjourned.
"We want the case to be sent back to the High Court and be heard again based on merit," said Manoharan.
He contends that as Kaliammal is a non-Muslim, the Civil Court must be the court to try the case, and not the Syariah Court which is exclusively for Muslims.
"She wants to (establish) the religious status of her husband at the time of his death," he explained.
Manoharan (left) in his submission criticised the MAIWP for using the "the back door" ruling of obtaining the ex-parte order, when they really should have brought their evidence - that Moorthy has converted to Islam - to the Civil Court to be heard and ruled onAt this juncture the bench requested the lawyer to rephrase his words, whereupon he changed the term "back door" to "without telling anyone", to stress what he maintained was the stealth of the move by the MAIWP.
Manoharan also claimed that they have evidence in the form of affidavits that will prove that "at all material times" Moorthy was a Hindu, evidence which he says was never heard by the High Court in making its earlier dismissal of their application.
'Only doing our job'
However Sulaiman Abdullah, the lead counsel for MAIWP, which is named as the first respondent in the appeal, strongly refuted Manoharan's allegation that the council had any bad intentions.
"The council was only trying to do its job in difficult circumstances," said the counsel.
Sulaiman also argued that Mohd Raus had ruled correctly in declining jurisdiction, as the matter of the religious conviction of a Muslim ultimately falls under the powers accorded to the Syariah Court, as provided for by the constitution under 'powers accorded to the state'.
Senior Federal Counsel Mohamad Nasir Bin Disa, lead counsel for the Kuala Lumpur General Hospital and the federal government – the second and third respondents respectively - also denied that the application for the Syariah Court order was made without Kaliammal's knowledge, saying that nothing in her affidavit said that she was unaware of the matter.
Counsels for both the government and the religious council maintained that they have informed Kaliammal of their intention to seek the order, but she "did not avail herself" to cooperate with them.
"We met her and told her that we are going to get the order, but she and her lawyers said that they will not have anything to do with the Syariah Court," he added when met by Malaysiakini after the court had adjourned.
Judgement on Aug 6
Both the counsels for the religious council and the government are asking that the court set aside the appeal, but has decided not to ask for costs.
After hearing the submissions from both sides, the Appeal Court judges who presided over the case - Zainun Ali, Wahab Patail and Clement Alan Skinner - fixed Aug 6 to announce their judgement.
"We have listened to all the points, but it will take several days of deliberation for us," said Zainun.
After hearing the submissions from both sides, the Appeal Court judges who presided over the case - Zainun Ali, Wahab Patail and Clement Alan Skinner - fixed Aug 6 to announce their judgement.
"We have listened to all the points, but it will take several days of deliberation for us," said Zainun.
Moorthy was part of Malaysia's 1997 Mount Everest team and one of two members who reached the peak.
His death and subsequent Muslim burial in 2005 sparked an ugly row among Muslims and non-Muslims, exposing conflicts in Malaysia's dual-track civil and syariah law.
His death and subsequent Muslim burial in 2005 sparked an ugly row among Muslims and non-Muslims, exposing conflicts in Malaysia's dual-track civil and syariah law.
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