Friday, December 01, 2006

JAIS, Body Snatching, Conversion, Apostates and the Courts

The Selangor Religious Department (JAIS) is at it again. Fighting over the bodies of dead people with their families.

Read about the details here:

NST Online: Religious dept and family in tussle over body
Sun2Surf: Family, JAIS in tussle over body
We seem to be digging deeper and deeper into these pits of religious conflict. There was Moorthy, then Shamala and now, Rayappan. The circumstances of each case are slightly different, Moorthy - a deathbed conversion disputed by his family, Shamala - a case where the husband converted himself and his kids without his wife's knowledge and this one - the convert has reverted to his original religion.

One thing each case has in common, is the fact that there were unhappy conversions involved.

Back in July, after the whole mess with the aborted Article 11 forums, I wrote an article about how tightening up the conversion procedures would be beneficial in preventing all this unpleasantness.
Refer to my blog here: A Solution to the Article 11 Impasse
Recently, in a sometimes heated discussion in Ipoh forums, I found out that it's an obligation for Muslims to welcome new converts as long as they are willing. This point was clear. And I accept that. As long as a person is an adult of sound mind, the decisions they make are binding, no matter how stupid those decisions are. When you knowingly buy a one way ticket, you stay on the train no matter what happens.

Having said that, my original framework articulated in A Solution to the Article 11 Impasse must still apply. A self imposed difficulty in rejecting willing converts is no excuse for turning a blind eye to obvious injustices perpetrated, unintentionally or otherwise with an express intention to manipulate Malaysia's intersecting civil-religious framework for personal gain.

One area where the religious/conversion environment is somewhat unsatisfactory to me - is the position of minor children. It amazes me how the conversion of a minor can be upheld by a court of law when one of the two parents was not even aware of the conversion. Seems to me like the court hereto ignores Section 5 of the Guardianship of Infants Act 1961, which states that:
(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

(2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.
In the Shamala case, the high court upheld the conversion of minor children, even when they were converted by only the father, without the mother's knowledge. When asked to form a judgement whether an alleged conversion of a minor could be invalidated by a contravention of equal parental rights legislation (such as Section 5 of the Guardianship of Infants Act 1961 above), the civil court experienced osteoporosis of courage (ie. spinelessness) and without so much as a whimper, surrendered all jurisdiction to the Syariah court, on the strength of Article 121 of the Constitution.

To me, the civil court put the cart before the horse. Yes, Article 121 gives jurisdiction to the Syariah court in all matters concerning Muslims and Islam. But if we have reason to believe that the minor children were not legally converted (by the absence of the agreement of both parents), aren't they still non-Muslims until there is a [civil] judgement on the legality of a single-parent conversion of a minor child?

And to reinforce the partial jurisdiction of the civil courts in matters of conversion, we have to remember that a conversion is a 2 stage process:

1. The conversion out of a non-Muslim religion (civil jurisdiction), and
2. The conversion in to Islam (syariah jurisdiction).

If the conversion is being challenged at stage 1, shouldn't a judgement on stage 1 be issued first before proceeding to stage 2?

For reference, read this interesting article on the Shamala case:

Justice and jurisdictions
The Shamala Sathiyaseelan v. Dr Jeyaganesh C Mograrajah (Muhammad Ridzuan) custody case.

Rizal bin Chek Hashim
Aliran Monthly 2004:7

And just in case you were wondering, the resolution to Rayappan's case is simple to me. There is a set process of apostasy in order for a Muslim to renounce Islam. Did Rayappan fulfil and complete the process? It's that easy.

1 comment:

Anonymous said...

Rayappan to be buried as a Muslim
02 Dec 2006
V. Shuman, Leslei Kevin, Rita Jong and Arman Ahmad

KUALA LUMPUR: Rayappan Anthony will be buried according to Muslim rites as he had converted in 1990.

This was decided by the Shah Alam Syariah High Court which issued an ex-parte order to release his body to the Selangor Islamic Affairs Council (MAIS).

Syariah High Court judge Datuk Abu Zaky Mohammad granted the order to MAIS officer Juraish Kamaruddin after he produced supporting documents to prove the former van driver had embraced Islam.

The 55-minute proceedings was heard in chambers.

But it is learnt that MAIS can only claim the body on Monday after it obtains an endorsement from the Kuala Lumpur Syariah High Court.

(This is because the order was issued in a different state. Every state is governed by different Syariah rules).

Counsel for Rayappan’s family, A. Sivanesan, said the family will file a civil suit on the matter at the High Court in Wisma Denmark on Monday.

A MAIS spokesman said the council was willing to allow Rayappan’s family to perform last rites according to the Catholic faith.

"There have been previous cases on special request where the council allowed the family of deceased converts to perform last rites according to their own beliefs, provided they promised to surrender the body to us to be buried according to Muslim rites.

"In Rayappan’s case, we are also open to negotiation," he said.

Rayappan, 71, died at Kuala Lumpur Hospital at 4.30pm on Wednesday of complications from diabetes.

He converted after marrying a Muslim as his second wife and was officially known as Muhamad Rayappan Abdullah.

However, Rayappan returned to his first wife, M. Lourdesmary, 65, and his family, nine years later.

His family claimed that he was a practising Catholic until the day he died.

They claimed that Rayappan had returned to the Catholic faith as he had changed his name and renounced Islam by signing a "deed poll" with the National Registration Department (NRD) on May 10, 1999.

In the deed poll, Rayappan had stated that he wished to renounce Islam and that he would be using the name "Rayappan Anthony" in all documents.

Even the religious status in his Mykad stated he was a Christian.

His family was prevented from claiming his body after Jabatan Agama Islam Selangor (JAIS) officials said that he would be buried a Muslim.

It is learnt that his burial became an issue after one of Rayappan’s neighbours at Kampung Wardieburn, Setapak, alerted JAIS after his death.

Rayappan’s family lodged a police report at the Setapak police station on Thursday.

Meanwhile, an NRD spokesman said the department had no power to change the religion of a person, even if a deed poll had been submitted.

A deed poll, she said, was usually used to change a person’s name.

"This can be done by the person himself, without going to a commissioner for oaths. It is basically a letter which is just signed by the person," she said.

She said the department was allowed to change particulars like a person’s name as this was allowed under the National Registration Act 1959 (Act 78 and Regulations).

"Regulation 14 of this Act allows the change of names and correction of particulars," she said.

The spokesman said the department had no power to change a person’s religion even if someone submitted a deed poll.

She said the issue of a Muslim wanting to return to his original faith was in the hands of the respective Islamic religious authorities.

"Once they approve the change, the religious authorities can inform the NRD," she said.