Thursday, July 02, 2009

This is a continuation of the issue below

Decision in Mohan Singh case on 6 July

1 Jul 09 : 9.24PM

By Deborah Loh
deborahloh@thenutgraph.comdeborahloh at thenutgraph dot com

SHAH ALAM, 1 July 2009: The High Court will decide which court has jurisdiction to hear competing claims over the body of Mohan Singh al/l Janot Singh on Monday, 6 July 2009.

High Court judge Rosnaini Saub announced this today after the final round of arguments on the matter was made in court today.

Both Mohan's Sikh family and the Islamic authorities of Selangor are claiming the right to Mohan's body.

In today's final submissions, Mohan's certificate of conversion to Islam, produced by the Selangor Islamic Council (Mais), was disputed.

Rosnaini gave Mais which is contending that Mohan converted and died a Muslim, till the end of this week to file the original certificate with the court or obtain a clearer copy. Mohan's lawyers have said the current copy tendered is illegible.

Lawyer Rajesh Kumar, who is representing Mohan's family, earlier submitted to the court that such a certificate of conversion did not exist. The family contends that Mohan never converted to Islam, and died a Sikh.

Rajesh said that till today, Mais has not produced the original certificate of Mohan's alleged conversion on 11 Aug 1992.

Rajesh said that the photocopy of the certificate bore the chop of "Pulau Pinang", where Mohan had supposedly converted. But, his family contend that Mohan never lived there.

Rajesh also told the court that the law governing Penang Islamic affairs in 1992 — which was the Penang Administration of Muslim Law Enactment 1959 — contained no provisions to enable the register of new converts to be accepted as conclusive proof that they had embraced Islam.

Although the enactment was amended in 1993 to allow for conclusive evidence, Rajesh said the newer law did not apply to Mohan as his alleged conversion was a year earlier.

Lawyer K Shanmuga, who is also counsel for Mohan's family, said that there was no evidence than Mohan was registered as a Muslim.

"The certificate of conversion is not confirmation that his conversion has been registered. There is a letter from the Islamic Affairs Department stating his conversion, but it doesn't state that he has been registered."

Shanmuga also noted that the form which a convert fills before receiving a certificate — the Borang Butiran Maklumat Diri Saudara Baru — only contained the first half of his name, Mohan Singh, and not that he was the son of Janot Singh.

Shanmuga said that the family was also disputing the authenticity of Mohan's signature on the form.

Lifestyle factor

Mohan's family is challenging the Sungai Buloh Hospital's decision not to release his body to them for cremation according to Sikh rites, and to let Mais determine if Mohan was Muslim at his time of death.

Mohan, 41, died of a heart attack on 25 May 2009 and his body has been kept at the hospital mortuary pending an outcome of the dispute.

The family contends that after the date of his purported conversion, Mohan married a non-Muslim woman, and they had a child who was given a Sikh name. He also continued to perform Sikh prayers and observe religious festivals, as well as perform Sikh funeral rites at his mother's death.

Referring to case law on Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor in 1991, Rajesh told the court that the judge in that case held that evidence on whether a person behaved like a Muslim was relevant.

The judge then, Tun Mohd Eusoff Chin, had said that even if a person converted, and then behaved as if he or she were not a Muslim, the religious authorities had to show evidence that he or she repented before dying.

Rajesh also said that a copy of Mohan's conversion certificate must not have been given to the National Registration Department (NRD), as his Sikh name was still maintained on his identity card and marriage certificate.

In reply, Mais's lawyer Haniff Khatri Abdulla said there was no need to give a copy of the certificate to the NRD as a name change was not requisite for new Muslims.

"It's a stretch to say that just because he didn't change his name, that he was not a Muslim," Haniff said.

He also told the court that in a similar and more recent case involving the body of Mount Everest climber M Moorthy, the judge had said that evidence of a deceased convert's lifestyle was irrelevant as the matter concerned Islamic law.

Hanif (left) and Rajesh

Locus standi

Another member of Mohan's family's legal team, Fahri Azzat, rounded up submissions on the family's right to be a party to the dispute for the body.

Fahri was replying to Haniff's earlier argument that the non-Muslim family members could not be a party to the dispute because the core issue was religious status, which only the syariah court could decide.

Fahri said the Ng Wan Chan case, in which a wife challenged the religious council for her Buddhist husband's body, was precedent that the civil courts could determine a person's religious status.

"It shows that the civil court can make a finding of fact on his religious status. It has happened before and can be done."

Fahri added that Mohan's family as next-of-kin were in the best position to give evidence on whether he practiced Islam, and that the only court they could appear in as non-Muslims was the civil court.

Fahri also cited the Federal Constitution's General Orders and the Malaysian Human Tissues Act 1974 which both held that the closest and surviving next-of-kin had a "natural interest" in a deceased person's remains.

Calling Mais a "stranger organisation", he said the council "just wants to do one thing — to bury it [the body]".

Fahri also told the judge that "no one would be prejudiced" if Mohan was not buried as a Muslim.

"It is my submission that howsoever a Muslim is buried is completely irrelevant to the authenticity of their faith or hereafter. Isn't a person judged on what they did when they are living, not after they are dead?" Fahri said.


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