Recently, a lady passed away, and her family members want her to be buried according to Chinese rites. The problem is that she was born a Malay, but married a Chinese in 1936.
Here in Malaysia things sit in uneasy equilibrium, with the possibility of name calling and mud slinging exploding at any time. The recent case of Moorthy and his widow Kaliammal's petition for the burial of her husband according to Hindu rites, has made the situation delicate. A sort of compromise was reached when Moorthy's brother relinquished all claims on his pension funds, etc. and gave them up to his brother's widow. Perhaps, this is an indication of how stare decisis is quietly set in Malaysia while at the same time making sure that those who have the locus standi do not stand up to upset the decision of the deciding court. (It is similar to when companies negotiate "out-of-court" to avoid setting stare decisis, which could "open the floodgates" to hundreds of liability claims.)
The Shariah Court of Negri Sembilan will hear her family's petition tomorrow. The story has been covered by multiple newspapers in Malaysia. For the benefit of the public, here is the article from the New Straits Online.
Another tussle over religious status
TAMPIN, Jan 20: The death of an 89-year-old woman, who was born a Malay Muslim, has sparked off a controversy as the family wishes to perform her burial rites according to the Buddhist faith.
The burial of Nyonya Tahir, who died of old age at her house in Taman Indah here about 4am yesterday, is scheduled to take place on Sunday.
The family reported her death to the police who then referred the case to the Negri Sembilan Religious Affairs Department (JHEAINS).
According to family members, the woman married a Chinese man of the Buddhist faith, named Chiang Meng in 1936, who has since died, and had 13 children.
Nyonya is alleged to have lived according to the Buddhist faith since her marriage.
Meanwhile, JHEAINS director Datuk Zaharudin Shariff said investigations revealed that Nyonya was a Malay and was from Simpang Ampat, Alor Gajah in Malacca.
He said JHEAINS obtained a Syariah court order yesterday to postpone Nyonya's burial according to the Buddhist faith until the case was heard in the Syariah high court on Monday.
"After discussing the matter with her family, they have agreed that Nyonya's body be placed at the Tampin Hospital mortuary while waiting for the court decision."
Nyonya’s son, Chiang Ah Fatt, 40, said the family would accept the decision of the court.
Preliminary questions:
1. Her actions predate the establishment of even the Federation of Malaya (1948) and the Malayan Union (1946). Is there a question of genuine legitimate expectation?
2. Besides that, in Islam, there is no retrospective application of laws.
3. Another important question is the status of her offspring: If she was Muslim, would her children have to be also viewed as Muslim? Under previous Malaysian laws, paternity of a child below 18 years of age follows that of the father. (Ref: The Susie Teoh case, aka Teoh Eng Huat's case.) However the recent decision of the family High Court (Justice Faiza Thamby Chik) in Shamala Sathyaseelan v Dr Muhammad Ridzwan Mogarajah has changed that equation. (Read more)
4. Does the Syariah Court have power to issue an order to postpone the burial? What section or power is the Syariah Court acting under?
5. What is the locus standi of the Religious Affairs Department?
Further from the same article, it is stated:
In Putrajaya, the Islamic Development Department (Jakim) is coming up with a system enabling conversion particulars of non-Muslims who embrace Islam to be documented at the Federal level.
Its director-general Datuk Mustafa Abdul Rahman said this would be discussed at the state Religious Department heads forum in March.
He said there would be a re-look at existing administrative procedures at the state- level and efforts to streamline them would be discussed.
This, he said, included the transfer of converts’ details to Jakim, that would help in the event of doubts and problems surrounding converts.
At present, he said as Islamic matters were under state governments’ jurisdiction, Jakim did not have records of converts unless it requested for them.
A move for the automatic documentation of converts’ details by the Islamic Affairs Council and the National Registration Department is also on the cards.
Under the plan, those who embrace Islam through Yayasan Dakwah Islamiah Malaysia (Yadim) or Pertubuhan Kebangsaan Islam Malaysia (Perkim) will have to make known or register their conversion with the Islamic Affairs Councils in their states.
When the conversion is formalised, council officers are required to inform their counterparts in the NRD for immediate documentation.
Mustafa said this could provide a clearer picture about one’s religious status and also avoid conflicts, which could arise if documentation of conversion of faith was not done.
The problem is that the NRD is actually sidelined in the quest for non-Muslim status, as has been shown in the recent case of Lina Joy. At the Court of Appeal, only Justice Gopal Sri Ram was able to say for certain that the National Registration Department ( NRD ) has no right to pass the onus of determining a person's religious status to the Syariah Court.
The other problem is that a convert might have genuinely embraced another faith, or might have reverted to his/her original faith. Such reversion or re-conversion is genuine. But the NRD will transfer the registration of the matter to the Syariah Court for its adjudication. The Syariah Court will put the matter on hold and drag its feet about it. So, in the eyes of the law, the convert's faith will remain Islam. The problem affects property rights, because the property of a Muslim cannot be inherited by a non-Muslim.
We have to ask ourselves if the convert has already converted out of Islam, will the NRD even make documentation of his post reversion / re-conversion lifestyle? This is in view of the Federal government's plan to "avoid conflict" by going solely on the documented status by the National Registration Department. In fact, taken together, the National Registration Department can be viewed as a tool to stall the re-conversion process, effectively getting converts stuck without an avenue out by submitting the matter to the Syariah court. The Syariah courts will, in the process of adjudicating conversion cases, refer to documentation by the National Registration Department. It is a merry go round, and ultimately one can be assured that all reversion cases (to original religion) submitted to the National Registration Department stand a good chance of being put "on hold" indefinitely!
The same story is documented at Berita Harian Online.
Waris dakwa ada bukti Nyonya Tahir keluar Islam
TAMPIN: Keluarga seorang wanita berusia 89 tahun yang meninggal dunia Khamis lalu dan mencetuskan kontroversi berhubung pengebumiannya mendakwa mempunyai bukti bahawa ibu mereka, Nyonya Tahir sudah keluar daripada agama Islam.
Bukti yang didakwa mereka ialah ibu mereka sudah membuat surat akuan sumpah sudah keluar dari agama Islam di hadapan Pesuruhjaya Sumpah, Chong Yong Mok bertarikh 19 Julai 1991.
Dalam surat akuan sumpah itu juga, Nyonya mengaku sejak kecil dipelihara mengikut asuhan dan didikan orang Cina. Dia juga meminta sekiranya mati, dia hendaklah dikebumikan mengikut adat istiadat agama Buddha.
Bukti kedua ialah dokumen yang dikeluarkan Pejabat Agama Islam dan Mahkamah Kadi Daerah Alor Gajah, Melaka bertarikh 7 Mei 1991 yang ditandatangani Pemeriksa Hal Ehwal Agama 1, Ab Azit Abdullah.
Dokumen itu menyebut, siasatan dijalankan Pejabat Agama Islam dan Mahkamah Kadi Daerah Alor Gajah, Melaka mendapati Nyonya sudah berkahwin dengan Chiang Meng pada 1936 dan suaminya tidak pernah memeluk agama Islam serta mereka menjalani kehidupan bersama 13 anak dengan mengamalkan agama Buddha.
Dokumen itu turut menyebut Nyonya tidak berniat hendak kembali kepada Islam dan membuat perakuan akan terus hidup mengikut tradisi orang Cina dan jika mati hendaklah ditanam mengikut upacara Buddha.
Sehubungan itu, keluarga wanita itu meminta bantuan daripada Jawatankuasa Biro Agama MCA Pusat bagi membantu mereka menyampaikan dokumen itu kepada Mahkamah Tinggi Syariah Seremban, yang akan mendengar kes itu esok.
Timbalan Pengerusi Biro Agama MCA Pusat, Koo Chin Nam, yang juga seorang Peguam Syarie berkata, pihaknya akan menyampaikan segala dokumen yang dikemukakan keluarga wanita itu kepada mahkamah untuk dipertimbangkan dan diteliti.
Kelmarin, Berita Harian melaporkan kematian Nyonya mencetuskan kontroversi apabila keluarganya ingin menjalankan upacara pengebumian mengikut adat istiadat Buddha sedangkan wanita itu berketurunan Melayu dan Islam.
It seems that the Malay papers have given some information that the English papers have left out. The lady has evidence of her conversion out. Now she is dead, will the Court receive the evidence "as is" or will the Court decide otherwise? One must also remember that the Court will be in error if it applies today's laws (2006) in deciding whether she had indeed complied with procedure in 1991. More importantly, is it even possible for the Court to give an unbiased judgment? I submit that there has not been a single case when the Court has given judgment in favour of conversion out of Islam, or ruled that there is such right. It has always been given on technical grounds, never "as of right". Readers are welcome to prove me wrong by giving me citation of cases that have shown otherwise. As I have said before, it is one big conspiracy by the religious authorities.
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