Who was Mohan Singh?
By Deborah Loh
deborahloh@thenutgraph.comdebo
Mohan, seen here on a production set (All pics courtesy of Baldi Kaur, J Belvikohr and Jaswant Kaur)
PETALING JAYA, 29 June 2009: In life, Mohan Singh a/l Janot Singh worked behind the scenes as an art director for films and television commercials.
In death, he is centre stage in a legal battle between Islamic authorities who claim he died a Muslim, and his family who claims he was Sikh till the end.
Mohan worked on many films, including popular ones like the local horror movie Susuk. He also worked on Hollywood productions that were shot in Malaysia namely, Anna and the King and Entrapment, and Bollywood hit Don.
One of the last films he worked on before his death was Yasmin Ahmad's Talentime.
Mohan, 41, was the only boy in a family of five children, and had three sisters before him — Baldi Kaur, J Belvikohr and Jaswant Kaur. The sisters and their stepfather, Nagamuthu Punnusamy, are the applicants in a judicial review of the Sungai Buloh Hospital's refusal to release Mohan's body to them because of a counter-claim to his body by the Selangor Islamic Council (Mais).
The Shah Alam High Court is currently hearing arguments on jurisdiction as to whether the judicial review should be heard in the civil or syariah court.
"We are a very close-knit family. He's the only boy, younger than all of us, our baby. How can we let go of our baby brother just like that?" said older sister Jaswant.
Anxious to cremate
The sisters, their stepfather, and their aunt who only wanted to be known as Eleena, agreed to talk to The Nut Graph about Mohan after a session at the Shah Alam High Court on 24 June.
The family is anxious to cremate Mohan. Sikh rites demand that the body be cremated within 24 hours of a person's death, and that prayers be said for the deceased's soul after 16 days, said Jaswant.
"It is more than a month already," she said. Mohan died of a heart attack in his Damansara Damai apartment on 25 May 2009. His body was found at 1am on that date.
"We need to cremate him and then scatter his ashes in the river. Then he is really gone for us. Now he is lying in the freezer and we cannot do anything. A part of us is lying there with him and we can't do anything about it," said Baldi.
At work, on location
Unable to grieve
The family has visited Mohan in the Sungai Buloh Hospital mortuary three times since his death. Eleena said that was the least they could do, since they have no body to grieve over.
"It smells. He is deteriorating. We've asked the hospital to put more effort into ensuring that they preserve the body," said Baldi.
Jaswant said the hospital is keeping Mohan's body in the non-Muslim section of the mortuary. She cannot understand how Mais can still claim her brother's body if it's being kept in the non-Muslim section.
"We wouldn't mind that he is buried like a Muslim if he really had a Muslim wife and kids, and had to convert because he married a Muslim," Eleena said. But she insisted that there was no Muslim wife or kids, not that the family knew of in any case.
In court, the family is contending that Mohan was not a Muslim at the time of his death because he married a non-Muslim woman in 1997, after his alleged conversion in 1992.
Mohan's lawyer Rajesh Kumar has submitted that the marriage certificate and the birth certificate of Mohan's daughter born in 2000 bore his Punjabi name, and Sikhism as his religion. Mohan and his wife separated in 2002.
Disbelief
The family said Mohan never told them about his conversion. He had prayed with them at the gurdwara and observed Sikh festivals. According to the submissions in court, Mohan also performed Sikh rites for his mother when she died in 2005.
Mohan's family are still in disbelief and wonder why Mais did not intervene when Mohan married the non-Muslim woman and when he made a new MyKad last October.
"When he was getting married, they put up his photo for display at the jabatan (National Registration Department) for three weeks for objections to the marriage to be made. How come Mais never said anything then?" said Eleena.
With daughter Sharon Simran Kaur from his 1997 marriage Mohan's stepfather Nagamuthu said Mohan lost his MyKad last October when his wallet was stolen.
"He made a new one with his own name, Mohan Singh a/l Janot Singh, and no 'Islam' on the card. Why didn't Mais say anything?" Nagamuthu said.
The family said they also doubt the authenticity of Mohan's signature on the conversion certificate used by Mais to lay claim to the body.
"We compared it with his signature for his other documents and it doesn't look the same," Nagamuthu claimed.
The sisters said they feel guilty about not being able to accord Mohan his last rites. They are frustrated that "strangers" are adamant about claiming his body based on a "piece of paper", the conversion certificate.
"For them, it's just about winning the case. Do they even know who Mohan was?" Baldi said.
“Syariah court’s jurisdiction only over Muslims”
By Deborah Loh
deborahloh@thenutgraph.comdebo
Shanmuga (left) and Rajesh
SHAH ALAM, 19 June 2009: The religious status of deceased film director Mohan Singh must be heard in the civil court based on the most recent court judgements about the syariah court's jurisdiction and position, the High Court here heard.
Rajesh Kumar, the lawyer for Mohan's family, told the High Court, which began hearing arguments on jurisdiction today, that all parties to a dispute must be Muslims before the case can be heard in the Syariah Court.
Rajesh referred High Court judge Rosnaini Saub to the Federal Court's ruling on Latifah Mat Zin vs Rosmawati Shariban & Anor, a case involving inheritance, on 25 July 2007.
"The federal court held that it is not enough that the subject matter of the dispute is within the Syariah Court's jurisdiction. In addition, it must also be shown that all parties to the dispute professed Islam. The Syariah Court only has jurisdiction if both requirements are fulfilled," Rajesh said.
He noted that the Latifah decision had come after the Lina Joy case on 30 May 2007, also decided by the Federal Court, which ruled that her renunciation of Islam had to be determined in the Syariah Court.
"Since the Latifah case is the latest, we follow the latest case," he said.
Mohan's family, comprising his step-father and sisters, are disputing a claim by the Selangor Islamic Council (Mais) that he was a Muslim when he died on 25 May 2009. Mais has obtained an order from the Shah Alam Syariah High Court which declared that Mohan was a Muslim.
Mohan's body has been kept at the Sungai Buloh Hospital which will not release it until his religious status is determined.
Mais claims that Mohan, 41, converted to Islam in 1992. However, his family said no one had knowledge of his conversion and that he was a practicing Sikh until his death.
Besides Mais, Mohan's family is also suing the Health Ministry, the Sungai Buloh Hospital director, the Selangor government and the federal government.
The court only heard submissions from Mohan's lawyer today. Rosnaini fixed 23 and 24 June to hear submissions from the other respondents.
Position of Syariah Court
Rajesh also cited the High Court judgement on Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron in 2008, which affirmed that the high courts, being creations of the Federal Constitution, had supervisory powers over syariah courts which were "mere courts" established by state law.
"When there is competing jurisdiction between the civil court and syariah court, proceedings in the High Court of Malaya and the High Courts of Sabah and Sarawak must take precedence over the Syariah Court," Rajesh said.
The 2008 judgement reaffirmed that that the syariah court was an inferior court in legal terms.
"It doesn't mean that the Syariah Court is a less good court. It only means in legal terms, that it is inferior in the sense that the High Court supervises it," lawyer K Shanmuga, who is also representing Mohan's family, told reporters later outside the courtroom.
"Nobody can abolish the High Court. It is in the Federal Constitution. You need a two-thirds majority [in Parliament] to remove and even then, it's arguable if it can be done.
"But tomorrow, the Selangor state assembly could decide to abolish the Syariah Court as these courts are created by state assemblies," he said.
Definition of a Muslim
Rajesh also argued that it was unconstitutional to define Mohan as a Muslim under Selangor Islamic law.
He said the State Administration of Islamic Law Enactment which defined a Muslim as one who had converted at any time in their lives, went against the Federal Constitution's definition of a Muslim.
The Federal Constitution defines a Muslim as one who professes Islam. Mohan's lawyers are arguing that the literal meaning of the word "profess" refers to the present religion the person claims to believe in.
"Based on case law, and based on the dictionary definition of professed, it means that even if you converted 25 years ago, what is important is what you say today," Shanmuga told reporters later.
Rajesh had also argued in court that Mohan's identity card did not bear a Muslim name nor Islam as his religion after he allegedly converted in 1992.
The court was also given Mohan's marriage certificate and his daughter's birth certificate as evidence that had married a Christian woman in 1997, who gave birth to his daughter in 2000.
Rajesh pointed out that in both documents, Mohan's Sikh name was maintained, as was "Sikhism" as his religious status.
Mohan had also performed Sikh burial rites for his mother when she died, and had continued celebrating Vasakhi, the Sikh holiday, even after his alleged conversion, the court was told.
Credibility of witnesses
Appealing to the judge for a fair trial, Rajesh said Mohan's family members would not be considered credible witnesses if the case was heard in the Syariah Court.
Rajesh cited the Syariah Court Evidence (State of Selangor) Enactment 2003, which stated that non-Muslims could only give bayyinah, the least credible form of evidence under Islamic law.
There are three types of evidence, the strongest being iqrar, a confession given freely by a Muslim, followed by shahadah, the testimony of an eye-witnesses given on oath.
Bayyinah is considered mere evidence and not a testimony on oath.
Muslims who did not fulfil certain criteria in order to give shahadah could only give bayyinah. Such Muslims were those who were considered to be of unsound mind, not of full age, whose credibility was suspect, and who had committed major sins or habitually committed minor sins.
"Non-Muslims as a whole are put together with these categories of persons and are also only allowed to give bayyinah," said Rajesh.“Non-Muslims have no locus standi”
By Deborah Loh
deborahloh@thenutgraph.comdebo
SHAH ALAM, 23 June 2009: The non-Muslim family members of Mohan Singh a/l Janot Singh cannot be a party to the dispute over his body as the core issue of his religious status at the time of death can only be determined by the Syariah Court, the High Court here heard.
Lawyer for the Selangor Islamic Council (Mais), Hanif Khatri Abdullah, said only "in the event" that the Syariah Court determines Mohan as non-Muslim at death, would his family members have lawful claim over his body.
"The argument of the applicants that they cannot be made a party in the Syariah Court is a non-starter ... the applicants do not have locus to be a lawful party on this issue," Hanif said in his submissions to the court which began hearing arguments on jurisdiction on Friday, 19 June. The court will also continue hearing submissions tomorrow.
Hanif's submission was adopted in total by the federal government and the Selangor government which are also respondents in the judicial review filed by Mohan's family, who are all Sikh.
The federal government is represented by senior federal counsel Shamsul Bolhassan and the Selangor government by deputy state legal adviser Md Azhari Abu Hanit.
Mohan's body is still being held at the Sungai Buloh Hospital mortuary. His family has filed for a judicial review on the hospital's refusal to release his body to them for burial. The case is being heard by judge Rosnaini Saub.
Besides Mais, and the federal and Selangor governments, Mohan's family have also named as respondents, the Health Ministry director-general, the Sungai Buloh Hospital director-general, and the Malaysian Consultative Council for Buddhism, Christianity, Hinduism, Sikhism and Taoism.
Film director Mohan, who died of a heart attack on 25 May, had allegedly converted to Islam on 11 Aug 1992.
Mais obtained an order from the Syariah Court on 4 June stating that Mohan was a Muslim at death and that the hospital was to hand over his body to Mais for Muslim burial rites to be carried out.
However, the hospital did not do so as the family obtained a High Court order restraining the release of the body until the judicial review was settled.
The family is disputing the claim that Mohan was a Muslim as he had never informed them of his conversion, he had married a non-Muslim woman, and had continued to perform Sikh rites after his alleged conversion.
Conversion certificate
Hanif said the existence of Mohan's conversion certificate was conclusive proof that he was Muslim. The lawyer was replying to claims by Mohan's counsel last Friday that the certificate produced for the family was photocopied and illegible.
Hanif
"It does not matter how or where this certificate was found. It does not matter whether the applicants had knowledge of the conversion or not. What matters is that this certificate exists," Hanif said.
As such, he said Mais must be allowed to perform its powers and responsibilities as the authority in charge of Islamic matters in Selangor. "Mais has the duty to determine the religious status at time of death."
He said it followed that Mais was the "only party which will be involved in the determination of this issue before the Syariah Court."
"The immediate non-Muslim members [of the family] would not by any stretch of imagination be a relevant party on the issue of that determination," Hanif said.
He gave the court a hypothetical analogy — a Buddhist who converted to Christianity to marry his Christian spouse, and later died, would be buried according to Christian rites. But the Buddhist parents of the converted spouse would have no grounds to challenge the living spouse for the body.
Jurisdiction
Rebutting the use of recent court decisions by Mohan's lawyers that the case ought to be heard in the civil court, Hanif said Latifah Mat Zin vs Rosmawati Shariban & Anor was not a case about religious status but about inheritance according to Islamic principles.
Mohan's lawyers Rajesh Kumar and K Shanmuga had cited the Federal Court's ruling in this case that all parties to a dispute must be Muslim in order for the Syariah Court to have jurisdiction over a matter.
Hanif said: "The first criterion is to see whether the subject matter is vested within the jurisdiction of the Syariah Court. Only then, the second criteria would be to determine legally who is/are the party/parties to the subject matter."
He said the Latifah Mat Zin case did not specifically address jurisdiction of the civil court over the matter of religious status.
Hanif also rebutted another case cited by Mohan's lawyers, that of Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron, in which the High Court said that the proceedings of the High Courts of Malaya, and of Sabah and Sarawak, should take precedence over the Syariah Court when there is competing jurisdiction.
Mohan's lawyers K Shanmuga (left) and Rajesh Kumar
Hanif cited the Federal Court decision in Subashini Rajasingam v Saravanan Thangatoray & Other Appeals last year, where it was ruled that the Syariah Court was separate and independent of the civil court, and was equal in standing under the Federal Constitution.
Hanif also said Mohan's lawyers had misconstrued Islamic principles on the various types of evidence, and said similar principles differentiating evidence existed in civil law for minors and female complainants in sexual cases.
He said testimony by these persons were subject to corroboration.
"Are we to say that the civil courts are being discriminatory against minors or the female gender? Can the minors and/or female gender claim that the civil court has no jurisdiction over them?" Hanif said.
Last Friday, Mohan's lawyers said non-Muslims appearing in the Syariah Court would not get a fair hearing as their evidence would be considered less credible than that of a Muslim's according to the various Islamic categories of witness.“Non-Muslim claim to inheritance must be considered”
By Deborah Loh
deborahloh@thenutgraph.comdebo
SHAH ALAM, 24 June 2009: The legal battle for Mohan Singh a/l Janot Singh's body must also consider the right to inheritance of his non-Muslim next-of-kin, the High Court here heard today.
Counsel for the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), Balwant Singh Sidhu, told the High Court that Mohan's family members were entitled to dispute his conversion to Islam, as it affected their rights to his estate.
"The subject matter is not just the body of the deceased. The rights of inheritance of the non-Muslim beneficiaries of the deceased will also be affected," Balwant told High Court judge Rosnaini Saub.
The court is in its third day of hearing arguments on jurisdiction as to whether the civil or syariah court should hear an application for judicial review of the Sungai Buloh Hospital's refusal to release Mohan's body to his family, who are Sikh.
Mohan's family has named the Health Ministry director-general, the hospital director general, the Selangor and federal governments, the Selangor Islamic Council (Mais) and MCCBCHST as respondents.
Mohan's body is at the hospital mortuary pending the conclusion of the judicial review.
Balwant, who took his turn at submissions today, tackled Mais's claim yesterday that non-Muslim family members of a Muslim deceased have no legal right to claim the body, unless the Syariah Court confirmed the deceased as a non-Muslim.
Mais's lawyer Hanif Khatri Abdullah had submitted on 23 June that the subject matter of the dispute, which is Mohan's religious status at the time of death, was the priority factor in deciding whether the Syariah Court had jurisdiction.
Balwant today disagreed, saying, "As a matter of common sense, that the parties must all be Muslims, must be the first criteria, and the subject matter or relief/remedy, after that."
He also said that Mohan's family had the right to testify that the deceased was not a Muslim. As such, Balwant said only the civil court could hear them, as non-Muslims are not subject to the Syariah Court.
Unjust
The Syariah Court order that Mais obtained on 4 June to take Mohan's body from the hospital was also unjust because no one was cited as a respondent in that application.
Since no respondent was named, Balwant said that "the right to be heard" had been forgotten.
"The next-of-kin should properly have been parties, and the only court in which that can happen is the civil court," he said.
Balwant
Mohan's family claims that they never knew he converted to Islam. They said he also never showed any indication of being a Muslim as he had married a non-Muslim woman and had performed Sikh funeral rites for his mother, after his alleged conversion in 1992.
Interested party
The MCCBCHST is supporting the application by Mohan's family for a judicial review, and the submissions of the family's lawyers that the case should be heard in the civil court.
Lawyer for Mohan's family, Rajesh Kumar, told The Nut Graph later that naming the inter-religious council as a respondent was to enable the council to perform its role on matters that concerned them, such as religious conversions.
"Since they are an interested party on such religious matters, as a respondent they can raise points of interest to the court," Rajesh said.
In court, Balwant said MCCBHST had filed an affidavit on 16 June 2009 as evidence that Mohan was not a Muslim at his time of death.
The affidavit states that a Chanan Singh a/l Santa Singh, who is the secretary of the Sikh Gurdwara at Selayang Baru, had known Mohan and witnessed him praying at the Gurdwara with his sister during the Vaisakhi festival on 13 April 2009.
The affidavit also stated that Chanan was asked by Mohan's sister to help arrange his last rites upon being informed of his death.
Past cases "not good authority"
Referring to case law, Balwant said recent judgements concerning jurisdiction had been influenced by the minority judgement in Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam. In this case, the minority ruling was that only the Syariah Court could decide on matters of Islamic law. The majority decision, however, was that the High Court had jurisdiction to declare religious status, after referring to the fatwa committee.
A subsequent conversion case in 1999, Soon Singh v Perkim Kedah, relied on the minority judgement in Dalip Kaur.
Balwant said the Lina Joy majority decision by the Federal Court had also relied on the minority judgement in Dalip Kaur, and the Soon Singh judgement.
"To the extent that later cases such as Lina Joy relied on both Dalip Kaur's case and Soon Singh's case, such later cases are also not good authority," Balwant said.
The court will hear replies from the lawyers of Mohan's family next week on 30 June and 1 July.
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