As the year comes to a close, I cannot help but shake my head in despair after reading the reasoning of Md Raus Sharif, the High Court judge that decided on S Kaliammal's application. To cut a long story short, the sum total of his decision is he has no jurisdiction to decided on matter which is within the purview of the Syariah court and he quoted the constitution and a case law which has decided on this point.
If I may question the substance of his reasoning - how did he come to the conclusion that M Moorty is a Muslim. The issue before him is exactly on this point and as a judge of the civil court he is duty bound to hear and try on these preliminary and fundamental issues.
The evidence before the court is an ex-parte order from the Syariah Court declaring that Moorthy, or Mohammad Abdullah, has converted and embraced Islam. How can the judge just based on an ex-parte order to come to such a conclusion to invoke the provision of the constitution? Is it because the Shariah High Court decision being ecclesiastical in nature is above the civil court. At least that is the impression it has given to the Malaysian public.
Sitting as a civil judge, I would expect him to hear the arguments and to see evidence of Moorty's conversion before he can say that this is a matter that is out of his jurisdiction. Had he done so, I am quite sure Kaliammal would at least be satisfied that indeed her late husband has converted and that is his wish and there is nothing she can do about it.
What we read in the papers is that the late Moothy, after his injury, has been cared for by the wife, who is a Hindu and has at all times followed the Hindu religion. He surely has not demonstrated that he professes Islam as his religion. Ask why is there a need for Moorty/ Mohammad Abdullah to be secretive in his conversion to Islam? Moorty is an adult, a national hero and if he can help others to conquer Everest, I am sure he can help himself by declaring openly with pride that he is a Muslim like what his brother did.
His behaviour to say the least is not at all consistent with that of a national hero and it is no wonder that his wife and relative were shocked by this turn of events. Sadly the High Court judge instead of addressing this issue, and which is within his jurisdiction to do so, took the easy way out by accepting the ex-parte order from the Syariah Court as final and conclusive to disqualify himself to hear the issue further.
I do not know whether the High Court judge knows this or not, the ex-parte order by its nature is not conclusive and has no finality. How can he then accept that the Syariah Court decision as conclusive that Moorthy is a Muslim, is beyond legal comprehension.
To the legal team that is pursuing this matter to the Court of Appeal, please do not assume that just because you refer them as learned judges means they are learned in the true sense of the word. You know through precedent that in a conversion case on a custody issue, Faizah Thamby Chik, a High Court judge, has given custody of a child to a Hindu mother, and threatened her that if she is caught bringing the child up as a Hindu, he will revoke his order and hand over custody to the Muslim converted father. You go figure that out!