Sunday, 22 August 2010

concerning the Court of Appeal decision Kaliammal v. MAIWP

To: The President,
Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (

Dear Rev. Thomas,

I read with a little trepidation the comment from MCCBCHST on the recent Court of Appeal decision for the case of Kaliammal v. Majlis Agama Islam Wilayah Persekutuan & 2 others, delivered on 20th August 2010 as reported in the newspapers (Star – 1st report, 2nd report, SinChew); with the brief facts and arguments found at the Attorney General’s website. This case is so ‘explosive’ that even the Malaysian Bar has said something about it.

Let me to try to allay your concerns. Kaliammal’s lawyer has indicated that he will apply for leave to appeal to the Federal Court, which may or may not decide to hear this case, and which may or may not decide to overturn the unanimous ruling of the Court of Appeal. Even if the appeal is not heard / is dismissed by the Federal Court, there is still hope for further discussions / amicable settlement if the call for the setting up of a Royal Commission is heeded, or if the Cabinet / Parliament steps in to find / propose a solution that will be acceptable to all. So there are still plenty of steps before the doom and gloom period starts.

I don’t think you should worry just yet. In fact, you should not worry at all, or, as you put it, (be) "disappointed". Is it not written, "Therefore I tell you, do not worry about your life, what you will eat or drink; or about your body, what you will wear. Is not life more important than food, and the body more important than clothes? Look at the birds of the air; they do not sow or reap or store away in barns, and yet your heavenly Father feeds them. Are you not much more valuable than they? Who of you by worrying can add a single hour to his life?" (Matthew 6:25-27, NIV)

The situation is still a-ok. Here’s why (I am commenting on the decision of the Court as reported in the newspapers reports listed above):-

  1. The Court of Appeal was unanimous in its decision.
  2. The Court made 2 important observations, which were (and I am paraphrasing here),
    1. in our dual judicial system, where there is irreconcilable dissonance (disagreement), it is for the legislature to provide the remedy; and
    2. although Kaliammal was not subject to the Syariah Court, she nonetheless can go there via the Federal Territory Religious Council (MAIWP), to obtain relief (i.e. to try to set aside the ex-parte order of the Syariah Court stating that Moorthy had embraced Islam prior to his death).
  1. The above 2 comments, to me, are indicative of the reasoning the Court is adopting, which I am summarising as follows:
    1. The Court has taken a strict literal approach to the written law. It is choosing not to be an activist bench – hence the clear ‘sign’ pointing in the direction of the Legislature to fix the hole / lacuna in the law (the "irreconcilable dissonance"). This approach is a valid method in interpreting written law. In legal-speak, the Court chose the literal rule over the golden rule, the mischief rule, and the purposive approach.
    2. The Court understands that strictly speaking, although Kaliammal does not have any locus standi to appear before the Syariah Court, it hints that MAIWP may be able to assist her in this. This is a very positive view of the enhanced role MAIWP can play not only for the Muslims in Wilayah Persekutuan, but for the non-Muslims too. Admittedly, there will be trepidation / disbelief in the lay person’s mind that MAIWP will actually help a non-Muslim (eg. Kaliammal) and go to the Syariah Court on his / her behalf to set aside a Syariah Court declaration that a person (eg. Moorthy) was a Muslim – but if the Court of Appeal of Malaysia is confident that such a role for MAIWP is possible, we should not be so negative / suspicious about it, should we? At present, I am not aware of any instance where MAIWP has ever said that it WILL NOT assist a non-Muslim to set aside a declaration that a deceased is a Muslim. So it IS possible that assistance from MAIWP might be forthcoming.
  1. The Court of Appeal has answered the questions posed to it, and it has even taken the time to give advice to Kaliammal (the enhanced role that can be taken by MAIWP to assist non-Muslims). Frustration should not be vented in the form of anger / disappointment towards the Court just because it didn’t decide the way you were hoping it would. That is not the correct thing to do.

In the end, whatever happens here, I think it bears repeating here that "Do not be quick with your mouth, do not be hasty in your heart to utter anything before God. God is in heaven and you are on earth, so let your words be few." (Ecclesiastes 5:2), and "If it is possible, as far as it depends on you, live at peace with everyone. Do not take revenge, my friends, but leave room for God's wrath, for it is written: "It is mine to avenge; I will repay," says the Lord. On the contrary: "If your enemy is hungry, feed him; if he is thirsty, give him something to drink. In doing this, you will heap burning coals on his head." (Romans 12:18-20, NIV).

Jason Kay
22nd August 2010

P.S. MCCBCHST is almost impossible to remember. May I suggest "MCCoBuCHSiTa", which if re-typed with amendments to capitalization, would be "McCobuchsita" (suggested pronunciation: Mc-Co-BUC-SI-Ta). This is easier, for me at least, to remember.

P.P.S. I am very eager to read the full 14-page judgment when I get my hands on it.

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