MALAYSIA: The Islamic Sharia Court Challenges the Federal Constitution on Citizens' Rights of Burial of their Dead
UPDATE : 7th December 2006: MALAYSIA Dead Malaysian will have a Christian Burial At Last
The Malaysian Islamic Religious Council (MAIS) today dropped its bid to give the deceased, A. Rayappan a Muslim burial, ending a nine-day tussle with his family who insisted he was a Christian when he died. The Council withdrew its case which it had filed at the Syariah High Court at 4.45pm today, a day after the Malaysian Government asked the Attorney-General's Chamber to help iron out the problem.
On hearing of the withdrawal, lawyer for Rayappan's family, A. Sivanesan, sent a letter to the Kuala Lumpur Hospital to release Rayappan's body at once. At about 5pm, Sivanesan accompanied the family to the hospital mortuary where Rayappan's body was claimed. His Christian burial will take place tomorrow.
Earlier at his office, Sivanesan and six other lawyers involved in the case, including the president of the Association of Catholic Lawyers Francis Pereira who was holding a watching brief for the family, told reporters the Good Shepherd Catholic Church in Setapak where Rayappan is a parishioner had issued a letter confirming his religious status.
Parish priest Rev. Father Patrick Boudville had stated that Rayappan was a baptised amd practising Catholic. He had enclosed photos of Rayappan at his daughter's Christian marriage solemnisation last year which also showed Patrick feeding Rayappan the Holy Communion.
On the Cabinet's intervention in the case, Sivanesan said they must ensure families in such predicament have fair channels, such as the civil courts, to resolve their problems. Read here for more
Read here The Malaysian Federal Constitution
Excerpts of the Malaysian Federal ConstitutionArticle 3
Read here full article and HERE
1. Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation
Article 8
1. All persons are equal before the law and entitled to the equal protection of the law.
2. Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment .
Article 11
1. Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
4. State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Article 12
1. Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth....
2. Every religious group has the right to establish and maintain institutions for the education of children in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.
3.No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
4. For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
A Malaysian Christian widow is seeking a swift burial of her husband, whose body remains locked up in a morgue because of a dispute with Islamic authorities over the dead man's faith, a lawyer said Wednesday.
The death of Rayappan Anthony, 71, has reignited a controversy over minority rights in Muslim-majority Malaysia, where decades of multiracial harmony have come into question over concerns that Islam, the official religion, is diminishing other faiths.
The widow and daughters of Rayappan, an ethnic Indian van driver, acknowledge that he converted to Islam in 1990 but say he renounced the religion and returned to Roman Catholicism in 1999 without informing Islamic authorities, who now are also claiming the body for a Muslim burial.
The hospital where Rayappan died on Nov. 29 has refused to hand over the body to anyone until the two parties resolve their dispute.
The two sides have filed a series of legal petitions to claim the body but a quick resolution does not seem to be in sight.
Rayappan's family is frustrated by legal red tape in Malaysia's secular and Islamic Shariah courts that is complicating their effort to take possession of the body, said their lawyer, A. Sivanesan.
"The family is in emotional agony because of all this waiting," he said. "The family members hope the government will step in to help them."
The widow, 69-year-old Lourdes Mary Maria Soosay, wants a court to order hospital authorities to hand over the body of her 71-year-old husband, van driver Rayappan Anthony, whose religious beliefs at the time of his death last week are in question.
It is the second time in about a year that a non-Muslim has fought for funeral rights over a loved one.
In the first, state Islamic officials gave a former soldier a Muslim burial against the wishes of his Hindu widow, setting off a storm of protest.
"It's known as corpse-snatching," A. Sivanesan, lawyer for Lourdes Mary, told Reuters on Tuesday, after the family complained to police over harrassment by Islamic religious authorities.
"You don't bother about the man when he is alive. When he dies you come and snatch the body."
He said Lourdes Mary's husband had renounced Islam and resumed practising Christianity in 1999.
Islamic religious officials were not notified of his renunciation and want him buried as a Muslim, Sivanesan added.
He said his client had ignored an order to appear before a sharia or Islamic religious court to resolve the matter because she was not a Muslim and such a court had no authority over her.
Last year, as state Islamic officials prepared to bury former soldier and mountain climber M. Moorthy against his widow's wishes, the High Court said it had no jurisdiction over such religious matters, leaving non-Muslims unsure of their rights.
The move even triggered a protest from some cabinet ministers in Malaysia's multi-racial ruling coalition.
Whether Muslims can convert to another faith is a tricky legal question in Malaysia where freedom of religion is a constitutional right, though Islam is the official religion.
Ethnic Malays, who make up just over half of a population of 26 million, are deemed to be Muslims from birth, but the country's highest civil court has yet to rule on whether they have the right to convert to another religion.
In the latest case, the widow has taken a different legal tack to avoid the constitutional question.
Lawyer Sivanesan said the authorities had effectively recognised that Rayappan had given up Islam when they gave him a new identity-card five years ago that stated he was a Christian. The law requires Malaysians to have an identity-card.
Sivanesan said his case focused on getting the government hospital to honour its obligations to its client and return his body to his next of kin.
"This is the first case in which the religious body (Islamic affairs department) has not been named as a party," he added.
Hospital authorities could not be reached for comment.
Many Buddhists, Christians and Hindus in Malaysia feel their rights are not sufficiently safeguarded by the Constitution and court system. But Muslim leaders have warned that allowing concessions to minorities would mean eroding the status of Islam.
The Islamic Religious Department in Selangor state, near Kuala Lumpur, obtained approval from the Islamic Shariah Court on Friday to claim Rayappan's body from the hospital morgue.
However, the man's family blocked them from doing so by filing a separate petition in the civil High Court.
The Islamic department, meanwhile, applied to the Islamic court for a review of the ruling to let Rayappan's family argue their case. But the family is refusing to appear in the court because they believe it has no jurisdiction since Rayappan had renounced Islam, Sivanesan said.
Rayappan's widow has applied to the civil High Court for a declaration that her husband died a Christian. The case, to be heard Dec. 11, is expected to determine whether the court can order the hospital to release Rayappan's body to his family without the Islamic court's approval.
Government authorities have not commented on the case, indicating that they believe the matter should be resolved in the courts.
The case comes nearly a year after a national debate was sparked by the death of Maniam Moorthy, a former Hindu commando, whose body was taken by Islamic authorities after the Islamic court ruled he converted to Islam before his death.
Moorthy never informed his family of the conversion, and the High Court said it had no jurisdiction to hear his wife's appeal.
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