Article 121(1A) provides that the civil courts "shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts". Syariah courts in turn exercise jurisdiction over matters involving Muslims including their burial. This will mean that the jurisdiction of syariah courts is absolute only when the matter to be adjudicated involves Muslims only.
The case of Everest climber L/Kpl M Moorthy's burial is not a matter involving only a Muslim. If it were that only, there is no question that Article 121(1A) should prevail, and the syariah courts' determination, conclusive.
It however concerns also the rights of a Hindu non-Muslim wife who asserts that her husband till the time of his death was a practising Hindu who had publicly participated in the Thaipusam festival at Batu Caves and who was further featured on national television for the Hindu Deepavali festival as late as November 2005. The question of what amounts to conversion and whether he had wholly converted is itself in issue.
Now the wife's assertion might be true or false and remains to be proven but she cannot, by reason of only being a non-Muslim interfacing with matters relating to a husband's alleged conversion (under syariah courts' jurisdiction) be denied the right to be heard or access to any remedy before the civil courts.
It is precisely this kind of overlapping situation where non-Muslims are affected by Muslims affairs that the civil courts should assert the right to determine whether on merits of the facts it is a proper case to be heard by the civil courts or the syariah courts only by virtue of Article 121(1A).
It is commonsensical to view that in any overlapping case where non-Muslims' rights are alleged to have been affected, the civil courts should hear the merits of this allegation instead of summarily turning it straightaway over to the syariah courts as if it were a matter involving Muslims only.
This is not the first case of such a nature. The High Court had ruled before that it had no jurisdiction over Shamala Sathayaseelan's application to nullify the conversion of her two children to Islam by their converted father.
This trend is disturbing because if the civil courts were to beat a retreat in every case that has something to do with Islamic laws, no matter that rights of non-Muslims are also affected, this would tantamount to an endorsement of syariah being the supreme law of the land, and not the federal constitution as proclaimed.
In the interest of promoting harmony in this multi-religious country, the government should forthwith make the move to amend Article 121(1A) with the object of making it clearer as to what the exceptions are to the breath of this article so as not to infringe on non-Muslims' rights.
If that cannot be accepted, why keep the pretension up that the federal constitution is supreme when it is not?