Lina, Why the controversy? : Who can pass apostasy laws, and how? (1)

Posted on June 21, 2007

5


many-colours-one-dream.jpg

In the ‘What’s not the controversy’ post, I promised to discuss the cases of Ng Wan Chan and Dalip Kaur.

Both reported judgments are fairly short and make for interesting reading. I would urge you to read both in full.

Ng Wan Chan

A dispute arose between a widow and the Islamic religous authorities over the religious status of the recently deceased husband, the widow claiming he died a Buddhist whilst the religious authorities claimed he died a Muslim.

The religious authorities claimed he had converted to Islam whilst the widow contended that right up to his death, the deceased, in his daily life, engaged in practises that evidenced he was not a Muslim.

The issue before the court : was the deceased a Muslim or non-Muslim at the time of his death?

You must also know that when this case came before the civil High Court, Article 121(1A), was already in force.

Unlike Lina’s case, the subject-matter in this case whose religious status was in dispute could not say what he professed. This would have to be decided by a court of law, after considering all the evidence and the relevant law.

The religious authorities in Ng Wan Chan objected to the civil High Court hearing this case on grounds of jurisdiction. This does not appear in the report linked here but in another report. 

Lawyers will often refer to this kind of objection as ‘taking a preliminary objection’. 

The religious authorities argued that because of Article 121(1A), jurisdiction to hear this case was with the Syariah Court and not the civil High Court. Lawyers will sometimes refer to this as a ‘jurisdictional issue’.

Combine ‘preliminary objection’ with ‘jurisdictional issue’ and you have a ‘preliminary objection on grounds of jurisdiction’.

This was the objection that the religious authorities took. This is the objection that the religious authorities and the AG’s Chambers have been consistently taking since at least 1996.

When this sort of objection is taken, the court cannot look at the evidence of the parties and decide the issue based on that evidence and the relevant law. Lawyers commonly refer to this ‘evidence-taking’ and then deciding as ‘ hearing the case on its merits’.

Instead, the court must first consider whether it has jurisdiction. It has to ‘hear the jurisdictional question’.

Please keep in mind the distinction between ‘hearing the case on its merits’ and ‘hear the jurisdictional question’.  

The judge in Ng Wan Chan, Justice Eusoff Chin, heard and dismissed the preliminary objection on grounds of jurisdiction. The judge made specific reference to Article 121(1A) and then said:

On the preliminary objection, I would make a ruling that since there is nothing to show that the syariah court has the jurisdiction conferred on it by written law to determine the issue of whether a person is or is not a Muslim at the time of his death, this High Court is not precluded from determining that issue, and consequently to hear this application”.

Please note the judge’s grounds. There was no written law conferring jurisdiction on the Syariah Court to determine the issue. 

The judge having dismissed the preliminary objection on grounds of jurisdiction, then proceeded to hear the case on its merits. This can be seen in the linked report.

Look at the reported judgment, from paragraph e at page 331 until paragraph e at page 332. You will see that the judge considered the evidence of fact of the disputing parties.

At paragraphs f and g on page 332, the judge then proceeded to consider evidence of expert opinion as to the position in Islam on the issue of apostasy.

The judge concluded, on the evidence, that the deceased was not a Muslim at the time of his death. To fully appreciate the approach he took, please read from paragraph h at page 332 until e at page 333.

The judgment is reported as delivered on 26/6/1991.

Please note the following very important points from this case when we consider the later decisions.

  1. The judge found that the civil High Court had jurisdiction to hear and determine, on its merits, the issue whether the deceased was or was not a Muslim.
  2. Jurisdiction in this matter could only vest in the Syariah Court by the provision of some written law. There was none.
  3. The civil High Court took into consideration opinion evidence on the position in Syariah on the question of apostasy.
  4. The civil High Court heard a dispute between a non-Muslim and a statutory body and a statutory officer ( the Majlis Agama Islam Wilayah Persekutuan and the DG of the General Hospital, KL ).

Before I leave Ng Wan Chan, I want to draw your attention to one observation made by Justice Eusoff Chin. As you read it, think of Moorthy’s widow and how the civil High Court dealt with her.

“I agree with Encik Karpal Singh that the person who really and best knew the deceased well during his life time, is his widow, the plaintiff”.  

You will find this observation at b on page 332.

Next : Dalip Kaur.