Friday, December 8, 2006

The Tragedy Of Rayappan

The dilemma with Rayappan’s case is simply that there is no dilemma.

There is no tragedy in Rayappan’s family not wishing to submit to the jurisdiction of the syariah court. In as much as they are entitled to not be compelled to give evidence in the manner the Majlis Agama wished, as a matter of law Rayappan’s family members cannot do so. The Federal Constitution has limited the jurisdiction of any syariah courts, such jurisdiction to be conferred by written law, to persons professing the religion of Islam. The family members are not such persons.

In the same vein, the Majlis Agama is not a person professing Islam. It cannot be. It is not a natural person. It is a body corporate. As such, it was not in any position to petition the syariah court for any order. Neither was the syariah court in a position to entertain any application by the Majlis Agama.

Additionally, the syariah court cannot order any state department or agency to do one thing or the other. Such departments or agencies are not ‘persons professing the religion of Islam’ within the meaning of the Federal Constitution.

And yet these things are happening. Orders are being granted. The crucial question is why. More significantly, why is the Government not doing anything about it? Most, if not all, of the actors involved are government servants. Surely there is a method by which these actors can be made to understand their roles and more importantly the legal framework in which they operate, constitution and all.

Any exercise of power which runs counter to the system envisaged by the Federal Constitution is an abuse of power. The system envisaged is not one which lends itself to discriminating against the widow of Rayappan or persons in her situation. The system is not one which envisages a distinction between muslims and non- muslims in the way they articulate the right to access justice.

Seen from this perspective, and when viewed in the context of manifest abuses of powers as noted above, the question is really why the government does not appear to be doing anything to correct the obviously incorrect application of legal principle. By its inaction, the government is accountable for what is clearly state supported discrimination. More so the Attorney General's chambers for permitting the wrongs to perpetutate and for not taking the position it should on the Federal Constitution.

This by any account is wrong and reprehensible, no matter the explanation. No matter the exhortations for Rayappan’s family members to submit to jurisdiction. No matter the directions from the Prime Minister.

The tragedy of Rayappan's case is that all the answers are provided by the Federal Consitution and that the answers provided cater to the needs of all concerned. The High Court clearly has jurisdiction. The issue is whether Rayappan passed away as a Muslim, the remedy needed a declaration. If there are elements of Islamic law that need to be understood in order to come to this finding of fact, expert evidence can be led. This procedure is invoked regularly in the High Court in various matters and there is nothing to distinguish cases of this type from any other case. This was the approach taken by the Supreme Court in a similar case called Dalip Kaur in 1992.

The tragedy of Rayappan's case is that the Constitution does not seem to matter any more.

There is no justification that can be offered to Rayappan's family for what it has had to undergo. I cannot say whether Rayappan did in fact pass away as a non-Muslim. The very minimum that his family members are entitled to are the certainty that they will be given a chance to air their grievances in a court of law and that the issue will not be adjudicated upon by stealth in the syariah courts, courts to which they do not and cannot have recourse

And the involvement of State actors in the scenario is inexcusable. The Government must be blamed. It cannot say that it was taken by surprise, that it has not been appraised of the way things are being handled and the law applied. This is what the Article 11 road shows were about. The Government also promised when Murthi's burial became a very public issue last year that the scenario would not repeat itself. Well, it has, repeatedly, in one form or the other.

For this reason it is equally inexcusable for the Government to have buried the Article 11 initiative and any like it under the mountain of lies that were spread about the same. The Government owed a duty to Malaysians to allow civil society to assist it in solving a situation that it does not appear to be able to solve. In killing the debate on the wrongs being caused by a misapplication of the law, the Government intentionally looked away. It still seems to be looking the other way.


MIS

22 comments:

Mr. Smith said...

I am glad to see that you have finally decided to blog and allow us a share of your wisdom.
Malaysia needs more citizens like you who can, if at all, make a change for the better.
If people like you fail, then, inded, we are at the beginning of the end. Amen.

Malik Imtiaz Sarwar said...

Thank you for the encouragement. I think we all have a role to play in making things better.

Anonymous said...

I very much enjoyed reading your comments on the matter. It is most refreshing to see open comments that also point to the issue at core: The consitution must be uphold on and above any other legal constructs.
This to it's most extreme interpretation might also suggest a (more?) secular approach in government. Ultimately all Malaysians should benefit from such an approach.

Aput said...

The tragedy of Rayappan's case is that the Constitution does not seem to matter any more.

And when it starts to matter, certain parties go ahead and compare it against religion.

I wonder how we'll ever get above this issue.

WIELMAJA said...

Like what mr. smith said, welcome back, MIS (Missing in Action?)!

Our politicians often (read always) swayed like branches in light breeze. They bend with the wind less they risk being snapped and dropped dead. How many of our politicians dare to challenge the rules set by the Master? How many of them ever reflect their actions or inaction which affect all our lives forever? How many of them actually serve us all? How many of them ever read the Federal Constitution for a start?

Johnny Ong said...

great start to your blog. keep it up!

John Lee said...
This comment has been removed by a blog administrator.
Anonymous said...

Hi MIS,

I am concerned about what I read in The Sun, today.

Quote "High Court had
jurisdiction to review
its own decision. It
also ruled that: » Rayappan’s nextof-
kin be called to give evidence on his religious status;
and » Rayappan was a Muslim at the
time of his death unless evidence is
provided to state otherwise.
The court however revoked the
other orders made by the High Court
on Dec 1. MAIS lawyers declined to
reveal details, but a source said the
orders included the right given to
MAIS to give Rayappan a Muslim
burial."

Basically, from what I see The Syariah Appeal Court affirmed the Syariah's HC Order.

NOw, since there is an Order of Syariah Court declaring Rayappan is a muslim then how did the family is allowed to cremate his body. And secondly, what is the status of the widow?

There are other dangers, as well. Such as, can they also subpeona non-muslims to provide evidence for Khlawat, consuming alchohol etc,etc.

And since the Order says that he shall remain as a Muslim until proven otherwise, Nothing can stop Syariah courts to declare anyone a muslim based on whatever evidence they have and shift the burden to a person who is insisting that he is not a muslim. This is very dangerous precedent as it may affect people like the one dead man(Sayapu?) who's mykad wrongly stated his religios as Islam.( Samy Vellu's son solved that problem.)

We also have another problem whereby Nazri, AG insisting the non-muslim to submit to their jurisdiction.

Can you comment on this please?

Littlebird

panjang said...

I have been following your views / articles for some time and I must salute you for your guts / perseverance. How I wish there were more of your type. Keep up the good work.

Malik Imtiaz Sarwar said...

Littlebird, I too am wondering what it all means. It is troubling that a legal issue has been treated as a matter of discretion on the part of the executive. Where do the courts figure in all of this? And if the Executive can bypass the courts, be they syariah or civil, the rule of law means nothing. I am going to mull over this. Watch for a posting.

Old Fart said...

There is one other tragedy that seems to have failed being identified. When decisions were being made on the fate of the Rayapan corpse at a forum where his family and loved ones had no locus standi, those who could, did not stand up to talk on behalf of the family. That includes you Malik.

When talking on behalf of the family, or in stepping forward to posture the position of the family, even if this was to run opposite to your own understanding and leanings in the matter, the fact remains there was absolutely not a soul there in the Sharia courts, who had the necessary credentials of being Muslim and whose words would carry equal weighting to any other Muslim in that court, to talk on behalf of Madam Soosai, Rayapan's widow.

Whe a fellow Malaysian traveler was in dire straits in a foreign land, I have had the opportunity to step up to talk on his behalf despite he beinga Malay and I not. It was enough that I could communicate with him and I could then intercede on his behalf in a language he had trouble with.I stepped up..he did not invite me to.

That is what I would have expected. But no one stepped up. You might say, that your services were not requested for. But is this an occassion that the needy need to solicit your services? Apparently there were over 10 Muslim lawyers representing various Muslim organisations trying hard to get the MAIS decision reversed. Did at least one Muslim lawyer, with full conscience step up to speak on behalf of Rayapan's family? NO! And we are supposed to be a nation???

Ofcourse many Muslims can cmfort themselves with the thought that the Sharia Courts subpoenaed the Rayapan daughters and that the family had the opportunity to speak. But to what end really? So that the Ulama's can have this feel good factor? What is the point of fronting up anyone who is encumbered to weigh your words down a few notches only because you are not a Muslim?

This only goes to show that I cannot rely on my country man to come to my aid when I need it most. What was needed was a humanitarian gesture to intercede when you could have and when such intercession was necessary. I am totally disappointed with all my fellow Malaysian Muslim countrymen for failing to front up the Sharia Courts to speak on behalf of the Rayapan family. After all everyone deserves a proper lerned defense of their position. And when they cannot because they do not have the locus standi, like in this case, then others should front up. But because there were none to freont up, am I to assume all f you are like minded and concur with the position taken y MAIS in the first instance?

The Malaysian. said...

Welcome to the world of blogging, friend. The blogosphere needs the input of an honest legal mind. Needless to say your's will be a blog that will be carefully 'watched.'

Malik Imtiaz Sarwar said...

OF makes a valid point, it is about all of us having to stand up and be counted when it matters.

Not as an excuse but by way of clarification, Rayappan's family chose not to appear in the Syariah Courts and they have lawyers (and there are as such ethical consideration) who quite correctly did not advise the family to submit to jurisdiction.

Additionally, I am not admitted as a lawyer to any of the Syariah Courts which means I do not have the right to appear or make a submission. Neither does Haris Ibrahim, a colleague who is involved in Constitutional work of this kind.

But I take your point, there should have been a 'Muslim' presence standing in defence of the principle involved.

adam said...

Saudara Malik,

Don't be surprised that many in the government, politicians and govt servants alike are IGNORANT of the law. Add to that the intense desire to politicize any religious and race issue, we have what we are witnessing now.

Nazri, what say you??

Old Fart said...

Malik

Thanks for concuring on my displeasure. Saves us all unnecessary debate.

However, you speak of constitutionality and legal rights to appear and so on. But was the sharia court conducting itself constitutionally? WAs the sharia courts being honest about inviting the family to speak on their on behalf when they were encumbered not to give credentials of any kind to the voice of a kafir or infidel when there were opposing muslim voices?

The family was right in refusing to recognise the sharia injunctions and their subpoena. It got the contempt it earned for itself. IT is presumptious of both our politicians as well as Muslims to think that non-muslims are obliged to believe or have faith in the sharia court's ability to adjudicate fairly in any dispute involving a non-Muslim.

You and other lawyers and learned muslims are obliged to defend the sanctity of the sharia courts and Islam itself. And when you see these being sullied by practitioners you owe it to your maker to defend His institutions. In my view greater harm was being incurred on Islam and its institutions by the behaviour of the ill advisd MAIS and other so called "defenders of the faith". I would presume that this is what gave the 10 or so Muslim lawyers present at the sharia courts yesterday the confidence that they had an interest in the case and that they should be allowed to speak.

Anonymous said...

Old Fart,

He is one of a few muslims who is willing to speak up for Lina Joy and people like her.

Others, already branding him as the enemy of Islam. Take a look at the Tag Board conversation in UMNO-REFORM.

No non-muslim can find a solution for the current en passe. Only a muslim who can come out openly and state that time has come to relook religion in today's context of a multi religion society.

I was expecting the reborn Anwar to speak up for Malaysian... I also expected a non malay muslim convert senior lawyer would support Article 11 movement but unfortunately he dealt the otherway round.

I was expecting SUHAKAM to come up to RAyappan rescue but they had better things to do. In a way, this problem is not big enough as it only affects their immediate family members and soon everyone will forget about it.

This also opens up a chance to assimilate non-muslim to submit to Syariah's jurisdiction.

It is not only that but the Federal Court's decision on child support for children above 18 whereby the Judges spoke of admiration for syariah system and the AG's silence to do the necessary amendments to relevant statutes scares me think about non-muslims children's future in the divorce prone society. Maybe they want more Mat Rempits.

Or for couples who really love they children should convert to Islam.

Opps.. I think I got strayed from the original topic.

Cheers!

Littlebird

bayi said...

This is very enlightening. Thank you.

Trashed said...

Now that the case has been retracted, it is dismaying that it did not get to have its day in court.

I think that MAIS backed down to prevent the High Court from making a ruling. Had the ruling been made agst MAIS, then this would have set a legal precedent which would not be favourable (assuming the High Court ruled for Rayappan's family) in the bigger scheme of things.

Hence, I believe that MAIS backed down from a strategic point of view to maintain its stranglehold on the interpretation of Islamic legal rules instead of allowing themselves to be subservient to the Constitution.

It ain't over as the Fat Lady hasn't begun to sing yet.

Tungsten said...

I dont think our present judiciary have the intestinal fortitude to judge any case involving Islam with courage and conviction. Look at the Lina Joy's case. they are dragging their feet to even give a judgement. I think the whole world is waiting to see how our judiciary is going to make a fool of themselves.

Muhammad Najib said...

Dear Malik,

The "tragedy of Rayappan" could have been handled better if the religious department had not demanded his body in without sufficient evidence he was a Muslim.

Anonymous said...

Malaysia would be a better place to live in for everyone if the simple LOGIC, COMMON SENSE, UNDERSTANDING, RESPECT, HUMBLENEST, HUMILITY,,SELFISHNESS, KINDNESS, TOLERANCE, DIPLOMACY, FAIRNESS is displayed irrespective of religion, color or creed in which I believe you had it all.
My respect goes to you TUAN Malik.
Please continue your good deeds to help not only Malaysia but Humanity.
It's not WHO we are but WHAT we are
With Warmest Regards

Anonymous said...

hidup susah !
mati pun susah !!!