SHAH ALAM, 23 June 2009: The non-Muslim family members of Mohan Singh a/l Janot Singh cannot be a party to the dispute over his body as the core issue of his religious status at the time of death can only be determined by the Syariah Court, the High Court here heard.
Lawyer for the Selangor Islamic Council (Mais), Hanif Khatri Abdullah, said only "in the event" that the Syariah Court determines Mohan as non-Muslim at death, would his family members have lawful claim over his body.
"The argument of the applicants that they cannot be made a party in the Syariah Court is a non-starter ... the applicants do not have locus to be a lawful party on this issue," Hanif said in his submissions to the court which began hearing arguments on jurisdiction on Friday, 19 June. The court will also continue hearing submissions tomorrow.
Hanif's submission was adopted in total by the federal government and the Selangor government which are also respondents in the judicial review filed by Mohan's family, who are all Sikh.
The federal government is represented by senior federal counsel Shamsul Bolhassan and the Selangor government by deputy state legal adviser Md Azhari Abu Hanit.
Mohan's body is still being held at the Sungai Buloh Hospital mortuary. His family has filed for a judicial review on the hospital's refusal to release his body to them for burial. The case is being heard by judge Rosnaini Saub.
Besides Mais, and the federal and Selangor governments, Mohan's family have also named as respondents, the Health Ministry director-general, the Sungai Buloh Hospital director-general, and the Malaysian Consultative Council for Buddhism, Christianity, Hinduism, Sikhism and Taoism.
Film director Mohan, who died of a heart attack on 25 May, had allegedly converted to Islam on 11 Aug 1992.
Mais obtained an order from the Syariah Court on 4 June stating that Mohan was a Muslim at death and that the hospital was to hand over his body to Mais for Muslim burial rites to be carried out.
However, the hospital did not do so as the family obtained a High Court order restraining the release of the body until the judicial review was settled.
The family is disputing the claim that Mohan was a Muslim as he had never informed them of his conversion, he had married a non-Muslim woman, and had continued to perform Sikh rites after his alleged conversion.
Conversion certificate
Hanif said the existence of Mohan's conversion certificate was conclusive proof that he was Muslim. The lawyer was replying to claims by Mohan's counsel last Friday that the certificate produced for the family was photocopied and illegible.
Hanif
"It does not matter how or where this certificate was found. It does not matter whether the applicants had knowledge of the conversion or not. What matters is that this certificate exists," Hanif said.
As such, he said Mais must be allowed to perform its powers and responsibilities as the authority in charge of Islamic matters in Selangor. "Mais has the duty to determine the religious status at time of death."
He said it followed that Mais was the "only party which will be involved in the determination of this issue before the Syariah Court."
"The immediate non-Muslim members [of the family] would not by any stretch of imagination be a relevant party on the issue of that determination," Hanif said.
He gave the court a hypothetical analogy — a Buddhist who converted to Christianity to marry his Christian spouse, and later died, would be buried according to Christian rites. But the Buddhist parents of the converted spouse would have no grounds to challenge the living spouse for the body.
Jurisdiction
Rebutting the use of recent court decisions by Mohan's lawyers that the case ought to be heard in the civil court, Hanif said Latifah Mat Zin vs Rosmawati Shariban & Anor was not a case about religious status but about inheritance according to Islamic principles.
Mohan's lawyers Rajesh Kumar and K Shanmuga had cited the Federal Court's ruling in this case that all parties to a dispute must be Muslim in order for the Syariah Court to have jurisdiction over a matter.
Hanif said: "The first criterion is to see whether the subject matter is vested within the jurisdiction of the Syariah Court. Only then, the second criteria would be to determine legally who is/are the party/parties to the subject matter."
He said the Latifah Mat Zin case did not specifically address jurisdiction of the civil court over the matter of religious status.
Hanif also rebutted another case cited by Mohan's lawyers, that of Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron, in which the High Court said that the proceedings of the High Courts of Malaya, and of Sabah and Sarawak, should take precedence over the Syariah Court when there is competing jurisdiction.
Mohan's lawyers K Shanmuga (left) and Rajesh Kumar
Hanif cited the Federal Court decision in Subashini Rajasingam v Saravanan Thangatoray & Other Appeals last year, where it was ruled that the Syariah Court was separate and independent of the civil court, and was equal in standing under the Federal Constitution.
Hanif also said Mohan's lawyers had misconstrued Islamic principles on the various types of evidence, and said similar principles differentiating evidence existed in civil law for minors and female complainants in sexual cases.
He said testimony by these persons were subject to corroboration.
"Are we to say that the civil courts are being discriminatory against minors or the female gender? Can the minors and/or female gender claim that the civil court has no jurisdiction over them?" Hanif said.
Last Friday, Mohan's lawyers said non-Muslims appearing in the Syariah Court would not get a fair hearing as their evidence would be considered less credible than that of a Muslim's according to the various Islamic categories of witness
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