The Moorthy Case

The Moorthy Case
18 Jan 2006, Sangkancil-net


Interview with Mr. Lee Min Choon

Legal Advisor, NECF and CFM

Chairman, NECF Religious Liberty Commission





What is the significance of Moorthy's case?



There have been a number of court cases, which ruled that a Muslim who

wished to leave Islam must get a certificate from the Syariah courts and

not the civil courts. In Moorthy's case, the civil court ruled that if

there is a question on whether a non-Muslim had become a Muslim, the

case should be decided by the Syariah courts.



What problems did Moorthy's case create for the family?



The High Court refused to entertain a suit from Moorthy's family

challenging his conversion to Islam even though the family presented

convincing evidence that he did not convert. It was not a case whereby

the family was unable to prove that Moorthy's conversion to Islam was

questionable. What the High Court judge said was, "I cannot hear your

case. You must go to the Syariah court." The problem is that Moorthy's

widow is not a Muslim and thus, she cannot bring her case to the Syariah

court. Therefore, she was denied a right of hearing, which is a basic

tenet of law.



Is the mode of burial for Moorthy that important?



It may be important from the family's religious understanding. Besides

the issue of burial, the family could face other complications arising

from the denial of the right and opportunity to challenge his

conversion.



What are the complications?



Let me outline four complications:



1) Estate and inheritance



Moorthy as a Muslim can only make a will on one-third of his property.

The rest of his property must be administered according to Islamic Law.

This also covers his EPF and insurance monies. In the recent case of the

Lim family of Malacca where the husband secretly converted to Islam

before his death, the family was deprived of his estate, which fell

completely under the administration of the state Islamic trusts. As a

result of public outcry, the religious authorities gratuitously donated

half of the estate to the family (The Star, 11 Oct 2005).



2) Religious Status of Moorthy's children



I don't know which state Islamic law would apply to Moorthy. Most

states, except for PAS-controlled ones, have uniform Islamic enactments.

If his family was unfortunate to come from my state (Selangor), then all

his minor children (aged 18 and below) will be automatically converted

to Islam as a result of his conversion (Section 70, Selangor

Administration of Islamic Law Enactment 1989). Objection from the

non-Muslim spouse would not prevent the children from becoming Muslims.



2) Religious status of post-conversion issue and relatives



Section 2 of Selangor's Enactment defines a Muslim as "a person either

or both of whose parents or a member of his family were, at the time of

the person's birth, a Muslim." This means that not only any children

born to Moorthy after his conversion would automatically be Muslims but

also any of his nephews, nieces or any other relatives born after his

conversion would also be Muslims.



3) Custody and upbringing of infant children



If any of Moorthy's infant children are deemed to be Muslims, then their

custody will be determined by Islamic law. Most states have provisions

similar if not identical to Selangor's Islamic Family Enactment 1984.

Under Section 81(2), if the Syariah Court is of the opinion that the

mother is disqualified from hadanah (right to custody), it can pass

custody to other persons. Section 82 says that a woman is entitled to

hadanah if she is a Muslim. It is possible for Moorthy's widow to lose

custody of her children.



How are non-Muslims affected, or likely to be affected by Moorthy's

case?



If a non-Muslim is identified as a Muslim and it is disputed, a suit

cannot be brought in the civil courts to challenge the fact. As we see

from Moorthy's case, it is very easy for Muslim quarters to allege that

someone has converted to Islam. There were no documents to prove

Moorthy's conversion, only the words of his army colleagues. The Syariah

court seemed very willing to certify a person a Muslim convert without

much of a judicial inquiry. However, it is near to impossible for such a

person to get out of Islam. More so, if his conversion needs to be

challenged, the civil courts will decline to hear the case.



There could be a variety of situations where a non-Muslim could be

wrongly identified as a Muslim. One would be the Moorthy kind of

situation. This is a case where there is serious doubt that a conversion

to Islam had taken place. Moorthy's widow brought evidence of Moorthy's

state of dementia and his uninterrupted practice of Hindu rites. In his

state of mind, Moorthy could have succumbed to his colleagues'

persuasion to become a Muslim in the most informal of ways. He may not

have meant or intended to convert to Islam.



Another could be where a non-Muslim is caught in a khalwat situation

with a Muslim and is pressured or threatened to convert to Islam and to

marry the other party.



Mistakes in entering data into birth certificates or Mykad could also

occur. If a person's personal documents wrongly say that he or she is a

Muslim, then prima facie on that person falls under the jurisdiction (or

authority) of the Syariah courts and is barred from going to the civil

courts.



Most states have Islamic enactments prescribing similar provisions

for conversion into Islam (e.g. sections 81-87 of the Selangor

Administration of Islamic Law Enactment 1989). The conversion process

usually involves reciting of the Shahadat or the Islamic confessional

creed. However, free will is a requisite of a valid conversion (section

68(1)(c) of the Selangor Enactment). In all the above examples, there is

no free will or intention to convert to Islam. Such conversions are

theoretically invalid. The most obvious place to challenge this

conversion is in the civil courts.



If it is proved that the alleged Muslim was never a Muslim in the

first place, then the Syariah court has no jurisdiction over him in the

first place. Therefore, if there is likelihood that a conversion to

Islam will be proved to be invalid, then the proper forum is the court,

which the person will fall under if he is indeed proved to be a

non-Muslim.



Thus, at the heart of this problem is: Which court can a person go to

in order to prove that he is not a Muslim, or if he is a Muslim, to

prove that he has left Islam? People who say that they are not Muslims

or no longer Muslims generally do not wish to get their "exit

certificates" from the Syariah court. By submitting to the Syariah

court, a person is saying that he is a Muslim. People caught in both

situations described above are basically saying that they are not

Muslims. Thus, submitting to the Syariah courts will undermine or will

be inconsistent with the legal stand which they take.



Is it necessary to go to court over this matter?



Usually, there is a need to change one's official documents ? such as

Mykad, birth certificate, passport ? to show that one is not a Muslim.

This will be important if a person who says he is a not a Muslim wants

to marry a non-Muslim in a civil marriage or register his newly-born

children as non-Muslims. However, the National Registration Department

will not change a Muslim's status to non-Muslim unless there is proof

that the person was never a Muslim in the first place or that he had

converted out of Islam. This proof is usually a certificate or a

declaration from the court. Beginning with the Soon Singh case in 1999,

the courts have ruled that it is the Syariah courts and not the civil

courts that have the jurisdiction to issue such declarations.



Why does this legal complication exist?



Previously, the High Court has jurisdiction to make judicial

declarations on a person's religious status. However, in 1988 the

Malaysian Constitution was amended to include Article 121 (1A) that says

civil courts have no jurisdiction over any matter that falls within the

jurisdiction of the Syariah courts.



Unfortunately, the civil courts themselves have ruled that cases on

conversion out of Islam is a matter for the Syariah courts to decide. In

Moorthy's case, the court went further to say that whether a person has

converted into Islam or not is also a matter for the Syariah courts to

decide.



Why was this clause inserted during the 1988 constitution amendment?



When the British ruled Malaya, they imposed the English legal system

upon a population that consisted largely of Muslims and who had their

own Muslim customs that applied in a variety of situations. The first

judges were British, of course, and in a number of cases they were

called on to decide disputes that involved Islamic principles. In 1927,

Justice Thorne of the Supreme Court of the Federated Malay States in the

case of Ramah binti Ta'at v. Laton binti Malim Sutan made the following

observations: (a) that Islamic practices differed from state to state;

(b) that state enactments should be passed to deal with certain issues

pertaining to Muslims like divorce and inheritance; (c) that special

Islamic tribunals should be established to deal with such issues; and

(d) that the jurisdiction of the civil courts should be excluded in such

cases.



The Constitution of Malaya in 1957 incorporated the framework for

Islam to be administered on a state-by-state basis. Powers were given to

the state legislatures to pass laws to administer Islam on Muslims.

Since then, the states of Malaysia have introduced enactments to

administer Islam in their territories by establishing Islamic

authorities and structures, kadi or Syariah courts, defining religious

offences and establishing Islamic trusts.



Up to 1988, the High Court could still intervene and reverse

decisions of the Syariah courts or Islamic authorities. Finally, in 1988

the final piece of the puzzle was put in place when the Constitution was

amended. The new Article 121(1A) was intended to define clearly the

jurisdiction of both the civil courts and the Syariah courts. Thus, the

civil courts had no jurisdiction over matters that fell under the

jurisdiction of the Syariah courts. The matters that fell under the

jurisdiction of the Syariah courts had already been laid down in the 9th

Schedule to the Constitution.



Has Article 121(1A) been interpreted correctly?



Basically, a dual legal system had been created for Malaysia: the civil

law applying generally on the whole population and running side-by-side

with it, and an Islamic legal system applying Islamic law in restricted

situations on Muslims only. The Islamic law applied to Muslims only.



In a dual system, there would be people caught in between the two

systems. Such people would be (a) non-Muslims mistaken for Muslims; (b)

Muslims wanting to get out of Islam; (c) non-Muslim spouses of Muslims;

(d) children who have one parent that is a Muslim and the other a

non-Muslim; and (e) non-Muslim parents or siblings of Muslims.



It is a fundamental principle of any modern legal system that a

person must have access to justice. This means that there must be some

court to which a person can go to obtain relief or remedies. By their

interpretation of Article 121(1A), the civil courts have surrendered any

jurisdiction or responsibility in respect of conversions into and out of

Islam. Thus, they forced the people mentioned above to go to the Syariah

courts. People wanting to be declared non-Muslims do not want to go to

the Syariah courts as they feel that they will not get a fair hearing.



Indeed, to be asked to be declared as having converted out of

Islam is to admit to murtad, which is an offence punishable under

Islamic law (see the Daud bin Mamat and Kamariah Ali's cases).

Non-Muslim family members of Muslims have no locus standi in Syariah

courts, meaning they cannot bring a suit in Syariah courts because they

are not Muslims. The Syariah courts can only hear cases involving

Muslims. Therefore, we have a group of people caught in between the two

legal systems in a kind of no-man's land. They cannot go to civil courts

or Syariah courts.



Is there a need to clarify or to amend Article 121(1A)?



The present interpretation of Article 121 (1A) by the courts is creating

serious problems and hardship for many individuals and families. It is

unacceptable that under a constitutional form of government, there are

Malaysians who do not have access to justice. If the judges are unable

for whatever reason to interpret Article 121(1A) so as to administer

justice, then Parliament must step in to address the injustice.



Parliament must understand the true meaning of freedom of religion.

If one is to have free choice, then there must be mechanisms for

peaceful entry and exit from religions. Vital issues of conversions must

not be entrusted to forums, which are partial by reason of their

theological nature. Independent arbiters must be appointed to determine

questions of conversions into and out of Islam. The civil courts are the

best forums for such issues. If a question of Islamic law or principle

does arise, the civil courts can seek a fatwa or an opinion from the

Syariah courts. Jurisdiction however must be given to the civil courts.



Parliament must understand the true meaning of freedom of religion. If

one is to have free choice, then there must be mechanisms for peaceful

entry and exit from religions.



If a question of Islamic law or principle does arise, the civil courts

can seek a fatwa or an opinion from the Syariah courts. Jurisdiction

however must be given to the civil courts.