The Federal Territory Islamic Religious Council should not have sought an ex-parte application at the Syariah High Court when seeking a declaration that Mount Everest hero M Moorthy died a Muslim, said Syarie Lawyers Association head Mohamad Burok.

He told malaysiakini that the failure by the religious authority to inform Moorthy's Hindu family - who claimed ignorance to his conversion - of the application had only succeeded in putting Islam in a bad light.

"Of course, the law allows for ex-parte applications. But out of respect to his (Moorthy's) family, they should have called them for an inter-parte proceedings," said the lawyer, who has 23 years of legal experience under his belt.

"It was obvious that the authorities chose to subscribe to a narrow perception that a non-Muslim cannot appear before the Syariah Court when they made the application."

An ex-parte application is court proceedings brought by one party in the absence of the another, while an inter-parte application requires both parties to be present.

Mohamad believed that had the family been consulted, the Syariah Court's decision may have been different.

"The only evidence provided (by the religious council) for the (syariah) court was that he (Moorthy) had embraced Islam. But there were contentions that he had since deviated from the religion. Did he remain true to the religion or had he become a murtad (deviant Muslim)?

"I am of the view that if there was ample evidence that he was a murtad , the decision might have been different. I believe had it been an inter-parte application, all the debates (on the issue) would not have arise."

Mohamad added that the religious authorities must learn from the Moorthy case when dealing with non-Muslims in the future.

"We must realise that our action will give a bad image to Islam, which is a religion that provides justice for all. It is a compassionate religion. Actions taken without deep thoughts and consideration would invite the wrong perception of the religion."

On Wednesday, Moorthy was buried according to Muslim rites after the Kuala Lumpur High Court ruled that it had no jurisdiction to review a Syariah Court's ruling that the army commander had died a Muslim.

In dismissing the application by Moorthy's widow, S Kaliammal, justice Md Raus Sharif said although there were affidavits filed by Kaliammal, her brother and a friend stating that Moorthy participated in Hindu rituals, the question of jurisdiction to decide the matter was with the Syariah Court and not the civil court.

Justice for non-Muslims

Speaking on a related issue, Mohamad said non-Muslims can appear before the Syariah Court if they are willing to submit to its jurisdiction.

"That is, if they agree to respect and abide whatever rulings that are given. Islam does not bar a non-Muslim to seek justice before the Syariah Court. History has proved that non-Muslims can appear before the Syariah Court.

"Even in the time of the Prophet Muhammad, those professing other religions, including the Jews, were allowed to submit to the Syariah Court."

However, Mohamad was aware of the argument that the law does not provide non-Muslims to appear before the Syariah Court.

"But that argument is weak. If we refer to section 245 of the Mal Procedure Code (Kanun Atucara Mal) it states that syariah courts have unlimited jurisdiction to enforce justice. Does justice here means only to Muslims? I think not!"

He said the narrow interpretation of the religion and the Syariah laws provided in the country has deterred non-Muslims from seeking justice in the syariah courts.

Mohamad also said that the non-Muslims need not be represented by a Syariah lawyer as they can represent themselves.

"But wouldn't it be better for a party to be represented by some who is well-versed of the (Islamic) law? If one cannot afford legal fees, the court can appoint lawyers from the Biro Bantuan Guaman (Legal Aid Bureau)."

As to whether there would be syariah lawyers willing to accept sensitive cases like Moorthy's, he said: "For justice, why not? Just because you are a Muslim lawyer does not mean that you can't represent non-Muslims? If it is not a problem for civil courts, it should not be an issue in syariah courts."