Today’s NST has quite a number of interesting articles on the Moorthy case. The most interesting is the opinions provided by the Malaysian Bar Council president, Mr Yeo Yang Poh and the Syariah Practicising Lawyers Association, En Muhammad Burok. The article in question is linked here.
What I found interesting about Mr Yeo’s position is this:
“Article 121(1A) of the Federal Constitution states that the civil courts do not have jurisdiction in any matter which is in the jurisdiction of the Syariah Court.
“But ‘within the jurisdiction of the Syariah Court’ is subject to interpretation.
“For instance, it is possible to interpret that where one party does not have the right to be heard, then the Syariah Court does not have the jurisdiction.
“Currently, the Syariah Court does not accord the right of audience to non-Muslims. Therefore, the jurisdiction should go to the Civil Courts.”
Contrast this with what En Muhammad Burok says, here:
“This is all a misunderstanding — nothing more than that. Non-Muslims have legal recourse in the Syariah Court. The problem is that not many people know it.
“There is nothing in the law that forbids non-Muslims from bringing a case to the Syariah Court, or being heard by the court. However, they must submit to the Syariah Court’s jurisdiction and accept its judgment.”
There seems to be some confusion here, I believe. I don’t quite know who’s right. In any case, En Muhammad Burok believes that jurisdiction for such a question (on Moorthy’s religious affiliation) lies with the Syariah Court for reasons similar to what I’ve blogged here, i.e. that the case is a matter of “Muslim: Yes or No”, as he says here:
“It is ridiculous to say that jurisdiction should be given to a court other than the Syariah Court. This is not about whether Moorthy was a Buddhist or a Christian. It was about whether he was a Muslim.”
Of course, I believe the above position is disingenuous because the question is, rather, whether Moorthy was Hindu or Muslim, and not merely if he was Muslim or not.
Anyway, En Muhammad’s position appear to be that since the proceedings in Syariah Court was ex-parte, the family was not included in the proceedings. Had, according to him, the proceedings been held inter-parte, then the family would have been included - and presumably given an opportunity to take part. As he has qualified above, however, non-Muslims must accept the Syariah Court decisions to be binding and final. But why?
The above still begs the question on whether Moorthy’s wife has a right to dispute the Syariah Court findings in a secular court because En Muhammad has only allowed for a narrow interpretation of the problematic i.e. whether Moorthy was “Muslim: Yes or No”, in my opinion.
“But at that moment, it is important to remember that at the time the case was being heard at the Syariah Court, there was no issue that Moorthy was not a Muslim. All the papers were in order.”
What if we asked if Moorthy was “Hindu: Yes or No”? Who has a right to adjudicate the latter? Surely not the Syariah Courts. What if an independent body had found sufficient proof that Moorthy was Hindu - how are we to adjudicate between which position is correct? Appeal to civil courts to settle the matter or appeal to the Syariah Courts?
En Muhammad says appeal to the Syariah Courts, which begs me to ask, again where is the Syariah Court’s jurisdiction in declaring Moorthy Muslim when there was sufficient evidence to declare him Hindu? How can the Syariah Courts decide on whether Moorthy was Hindu since it has restricted itself to dealing with matters relating to Islam?
Maybe someone with legal training can sort this mess out, since I’m at my wits end trying to make sense of this.
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[...] I think it’s slightly different but more concise than what I’ve argued here, since if we break it down to “Moorthy is a muslim or Moorthy is not a muslim”, the latter can substantively be replaced with anything, including “Moothy is an polytheist”, since we are thinking of being ‘muslim’ as an exclusive membership. [...]