22nd July, 2010
PUTRAJAYA: The Court of Appeal will decide on Aug 6 on whether the Civil High Court has the jurisdiction to determine the religious status of Everest climber the late Sergeant M. Moorthy whose conversion to Islam has been disputed.
A three-man panel comprising Datuk Zainun Ali, Datuk Abdul Wahab Patail and Datuk Clement Allan Skinner fixed the date yesterday to deliver their verdict in the appeal brought by Moorthy’s widow S. Kaliammal after completing hearing of submissions.
Justice Zainun said the quorum needed several days to deliver their decision on the matter because there were merits to consider, although there were no novel points. If the court rules in favour of S. Kaliammal, 35, then her case would be reverted back to the High Court for hearing.
She is appealing against the Dec 28, 2005 High Court ruling which had refused to determine the religious status of her late husband on the grounds that a matter of this nature was under the exclusive jurisdiction of the Syariah Court.
Kaliammal had filed an originating summons on Dec 21, 2005 to the Kuala Lumpur High Court, which, among other things, sought a declaration that Moorthy was a Hindu.
The following day, the Kuala Lumpur Islamic Affairs Religious Council obtained an ex-parte order from the Syariah Court stating that Moorthy had embraced Islam prior to his death. The order also permitted the Council to bury Moorthy, whose Muslim name is Mohamad Abdullah, according to Islamic rites.
He was buried on Dec 28, 2005 at the Taman Ibukota Muslim Cemetery in Gombak, Selangor. Moorthy became paralysed from the waist down after a fall during training at the Sungai Udang Camp in Melaka on Aug 14, 1998 and was confined to a wheelchair. The former army commando went into a coma following a fall from the wheelchair and died at the Kuala Lumpur Hospital’s intensive care unit on Dec 20, 2005.
In the appeal proceeding, lawyer M. Manoharan representing Kaliammal said the Civil High Court could hear his client’s application because Kaliammal, being a non-Muslim spouse, only had recourse to a court of civil jurisdiction. He said it was in the interest of Kaliammal for a fair trial since the Syariah order declaring Moorthy a Muslim, was obtained ex-parte by the council. Manoharan said Civil Courts possessed the requisite powers and jurisdiction to deliberate upon matters relating to renouncement and conversion of Islam.
Counsel Sulaiman Abdullah for the Council argued that the matter should not be remitted back to the High Court for determination because the existence of a Syariah order stating that Moorthy was a Muslim was sufficient to put to an end to the matter.
“The primary issue is justice to the deceased. Since there is evidence from the Council that he is a Muslim, then he should be buried in a Muslim cemetery. The Council is a body responsible for looking after the interest of converts including burial,” he said.
Senior Federal Counsel Arik Sanusi Yeop Johari said Kaliammal had remedy under the law to challenge her late husband’s conversion by testifying in the Syariah Court relating to Moorthy’s religious status. However, he said Kaliammal opted not to use her rights which was provided under Section 83 (2) of the Federal Territory Syariah Court Evidence Act 1997.