Jacqueline Ann Surin
What does the latest tussle over a dead man between his Catholic family and the Selangor Islamic Affairs Department (JAIS), who both want to bury him according to different religious rites, tell us?
Firstly, Rayappan Anthony's case is not isolated. It is part of a series of other cases involving deceased family members, including M. Moorthy and Chandran Dharmadass, whose purported conversion to Islam resulted in their families being unable to claim and bury their bodies.
This tells us that conversions into and out of Islam, and its attendant issues, is a phenomenon that will keep emerging for so long as Malaysia is a multi-cultural society.
Secondly, these cases have implications for all Malaysians that are larger than the families' grief, trauma and rights.
"Rayappan's case, like other conversion cases, is not simply a religious issue. It is first and foremost a Constitutional issue," lawyer Benjamin Dawson says.
Dawson, a constitutional lawyer who is involved in a prominent conversion case, is of the view that under Article 11(1) of the Constitution, it is the individual and not a third party who has the right to decide his or her religion.
"An affirmation by the individual is all that is required under Article 11(1) and this can be done by deed poll or a statutory declaration for someone to affirm their choice of religion," he argues.
It was reported Rayappan, 71, who died in Kuala Lumpur Hospital on Nov 29 following a prolonged illness, converted to Islam in 1990 after taking a Muslim wife. However, he returned to his first wife and family in 1999 and was baptised into his original faith.
Rayappan had signed a deed poll in 1999 at the NRD which approved his name change from Muhamad Rayappan Abdullah to Rayappan Anthony.
In 2000, the NRD also issued a MyKad to Rayappan that stated "Christian" as his religion.
However, JAIS, through the syariah court, is contesting Rayappan's change of religion, insisting he was still a Muslim.
Dawson argues that since an individual's choice of faith is a constitutional issue, neither JAIS nor the syariah court has the jurisdiction to nullify what an individual chooses.
"In Rayappan's case, a decision by a federal government body like the National Registration Department (NRD) that respects an individual's Constitutional right is being disregarded by a religious authority," Dawson notes.
Rayappan's experience with the NRD is different from Lina Joy's, whose case is before the Federal Court.
While the department approved Rayappan's application for changes in his IC to reflect his choice of faith, it has stipulated that Joy - a Malay Muslim who converted to Christianity - must get a syariah court declaration to acknowledge her choice of religion before it will drop "Islam" from her national registration identity card.
Joy's lawyers have argued that the NRD has misconstrued its powers and that the syariah court is not empowered to decide on conversions out of Islam.
When contacted, Peguam Pembela Islam (Lawyers in Defence of Islam) protem committee chairman Zainur Zakaria declined comment, and Syariah Lawyers' Association president Muhamad Burok could not be reached despite several attempts.
Lawyer Haris Ibrahim says another significant difference between Joy and Rayappan was that being alive, Joy is the best person to state what her faith is.
"The content of her IC is not conclusive. The IC only provides prima facie evidence," he says.
However, in the case of a deceased like Rayappan where there are competing claims over the person's faith, the courts have to rely on "extrinsic evidence" such as other official documents and corroborating evidence of a person's religious practices.
"Even though JAIS has produced a card, issued in 2005, that states that Rayappan converted to Islam, that card was issued by an official. Are there backup documents to show that Rayappan was part of that process? Is there evidence that points to him having a faith other than Islam?" Haris argues.
He stresses that it is the civil courts which need to evaluate the competing evidence involved because the syariah court has no jurisdiction over matters which involve both Muslim and non-Muslim parties.
Haris also says JAIS's dismissal of Rayappan's MyKad is not as problematic as the syariah court's ex-parte decision.
Source: The Sun