|Moorthy Maniam is given a Muslim burial on the outskirts of Kuala Lumpur. Photograph: Reuters|
PUTRAJAYA: The civil court which heard the case of Everest climber L/Kpl M. Moorthy should have examined whether the law stating that all matters relating to Islam should be handled by the Syariah court is constitutional.
Human Rights Commission chairman Tan Sri Abu Talib Othman said the civil court should not have avoided the issue by merely ruling that L/Kpl Moorthy’s conversion to Islam came under the jurisdiction of the Syariah court.
"I think this is a constitutional issue. The individual has the right to choose his or her own religion. Once the person has embraced Islam, he has to act in accordance to the tenets of the religion. Otherwise, there is no meaning or commitment to his conversion.
"Islam is a religion practised according to hukum syarak and the competent person to decide on Islamic matters is the Syariah court.
"But in this case, the civil court should have considered the constitutionality of the amendment to the Federal Constitution, which was presented by the Government and passed by Parliament, and decide whether it is constitutional or not. Because in the matter of constitutionality, the civil court is competent," he said here yesterday.
Unfortunately, however, added Abu Talib, the court had chosen to refrain from doing so.
"Moorthy's widow should have sought a ruling on the constitutionality of the law," he said, adding that even if the case could be heard in the civil court, it would have needed an expert well-versed in hukum syarak to give evidence.
"The Federal Constitution has clearly stated that any case must be dealt with by a court of competent jurisdiction. You cannot have a judge who has not professed to Islam to determine what’s wrong or not wrong in the case of Moorthy," Abu Talib said.
He was commenting on a High Court ruling on Wednesday that it would not disturb the declaration that L/Kpl Moorthy, whose Muslim name was Mohammad Abdullah, was a Muslim because the matter was under the Syariah court's jurisdiction.
Moorthy's widow S. Kaliammal, 30, had sought a declaration that her late husband was a Hindu who had practised the Hindu way of life and that any papers relating to his alleged conversion to Islam were null and void.
She was involved in a tussle with the Federal Territory Religious Department over his body. Moorthy was buried according to Islamic rites on Wednesday.
Various non-Islamic religious leaders had urged the Government to intervene in the issue.
HONG KONG Prime Minister Abdullah Badawi of Malaysia has a well-deserved reputation for integrity and for propagation of "Islam Hadhari" - a moderate, modernist Islam focused on basic principles and the pursuit of knowledge. But official Islam in Malaysia continues to play into the hands of Islamophobes everywhere and upset the 45 percent or so of Malaysia's population who are non-Muslim.
Two current issues suggest that Abdullah will have to invest more of his own limited political capital in bringing a narrow official Islam into line with his own vision of an inclusivist faith that is intellectually alive and can coexist easily with the nation's large Hindu, Christian, Buddhist and other minorities.
In one case this week, a religious court declared that a deceased, M. Moorthy, a member of the first Malaysian team to climb Mount Everest, was a Muslim - and insisted that he be buried according to Muslim rites - despite the fact that he had been born a Hindu and, according to testimony by his wife and family, had never converted to Islam. The powers of the Muslim religious authorities were then confirmed by the High Court, which ruled it could not intervene in a decision by the religious court. In other words, in modern, multiethnic, inclusivist Malaysia, the religious courts are a law unto themselves
This is particularly worrying for non-Muslims. But it has wider implications in a society where all Malays are deemed to be Muslims, whatever they actually believe, and where religious movements by Malays have recently been persecuted on the grounds that they were judged heretical by the religious authorities. One sect that had been declared "apostates" recently saw its headquarters razed to the ground.
In another current case, a new Islamic Family Law has been rammed through Parliament. Although it has the legitimate aim of standardizing the implementation of Shariah, or Islamic law, Muslim women from across the religious/political spectrum see it as a backward step that enhances an already male-biased law. It will, they say, make polygamy and divorce easier for men, and reduce a wife's property and maintenance rights in the event of polygamy.
This legislation is being spearheaded by none other than the Prime Minister's Department. Bowing to old legal interpretations of Shariah on family issues is in contrast to Abdullah's public rhetoric calling for a progressive Islam, constantly reinventing itself in response to contemporary challenges and social conditions. "The notion that the Islamic concept of law is absolute and hence immutable has resulted in intellectual inertia," he has said, noting that "pluralism and diversity" were keys to the universality of the Muslim message.
As ever in Malaysia, the underlying themes may be more about political power struggles than religious beliefs. The governing United Malays National Organization must compete for Malay votes with the fundamentalist Parti Islam. Religion can be a weapon, too, in UMNO's internal politics. As with Christians in the United States, religious pressure groups exert political influence at the margin out of proportion to their numbers and politicians cynically use the groups for their own ends.
Abdullah generally has the trust of non-Malays, and Malays can recognize that his own beliefs are sincere, not the product of political calculation. That cannot be easily said of Anwar Ibrahim, the former deputy prime minister who proclaims liberal principles to receptive Western audiences but increasingly flirts with Islamic fundamentalism as he seeks to return to Malaysian politics.
In reality, Malaysian society is a lot more plural and tolerant than politicians' statements sometimes suggest. Nonetheless, the currents show the difficulty that Abdullah faces in reversing the trends of 20 years under his predecessor, Mahathir bin Mohamad.
While Mahathir's own agenda was an aggressively modernizing nationalism, for political reasons he allowed religious authorities to expand their power at the expense of secular forces. In many areas, including dress, Malay traditions have been abandoned to conform with alien but supposedly more Islamic practices imported from the Middle East.
Natural wealth and a benign history have enabled Malaysia to prosper economically while religious/ethnic divides have grown, at least in peninsular Malaysia. (Things are different in the ethnically more diverse Borneo states).
It may be hard to admit this in Kuala Lumpur, but Malaysia badly needs to look to Indonesia for an example of how to be a modern, multiethnic state. That will eventually require ending the automatic identification of "Malay" with "Muslim" and acknowledging that different interpretations of Islam can coexist within the same predominantly Muslim state. In Indonesia, pluralism and Islam are synonymous, but in Malaysia the links between religious authorities and a state with huge powers of bureaucratic patronage are inhibiting for both.
Unless Malaysia's prime minister tackles the social gap between Muslims and non-Muslims, it will continue to grow, whatever the claims of tourist brochures about Malaysian multiculturalism. Capital will continue to exit the country, and Abdullah's vision of Islam Hadhari will be stillborn.
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