I refer to the letter titled Practical answer to 'abandoned convert' issue.

In it, the writer states that the proper jurisdiction to deal with matters such as the Siti Fatimah case is the Syariah Court. Indeed, I agree. This is because prima facie Siti Fatimah was a Muslim by virtue her act of conversation to Islam which was well-documented. There can be no doubt, therefore, that all matters pertaining to her personal law must be covered by the Penang Syariah Enactment.

Frankly, that is uncontroversial and acceptable to many (although not to strict adherents of the constitutional principle of freedom of religion, of which I am one, but I shall not turn to that dimension in respect of this matter in this letter). This is because in the Siti Fatimah case the preliminary question whether a matter is within or without the jurisdiction of the syariah courts (in this case whether Siti Fatimah was prima facie a Muslim or not had been determined from the outset) had been answered in favour of the syariah courts.

However, the real problem arises – and these are the cases which cause grave concern among non-Muslims – when the preliminary question whether a person is a Muslim or not (and, therefore, whether the matter is within or without the jurisdiction of the syariah courts) is yet to be determined. It is in this context that the question of jurisdiction becomes crucial and controversial. And this was the issue which arose in both the Corporal Maniam Moorthy and, the more recent, Gan Hock Ming cases.

The question whether Moorthy or Gan remained a Hindu or Buddhist, respectively; or had become a Muslim (there would have been a 50:50 [or some combination of that] chance of one conclusion or other) cannot possibly be within the jurisdiction of the syariah courts because syariah courts plainly deal with Muslims and Islam solely. How could it have had jurisdiction over Moorthy or Gan when either of them could have always been a Hindu or Buddhist and, therefore, outside the purview of the syariah courts?

No one denies that the syariah courts, even after Article 121(1A) amendment to the Federal Constitution in 1988, do not have jurisdiction over non-Muslims (see Mohamed Dzaiddin SCJ in Tan Sung Mooi v Too Miew Kim [1994] 4 MLJ 158).

Thus, logically, in Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan (No 2) [1991] 3 MLJ 487, it was held that the jurisdiction of the High Court to declare the status of a person in respect of whether he was or was not a Muslim at the time of his death – even subsequent to the 1988 amendment (Art 121(1A)) – was intact.

But the High Court in the Moorthy case was wrong to have refused to intervene, insisting that it was a matter for the syariah courts. All the High Court had to do (and must have done, in my opinion) was to call for the documentation which was in the hands the Army (Moorthy’s employers) which could have proven that he had properly converted to Islam, in which case the High Court could have properly washed its hands of the matter.

It is the unjustified, supine and unconscionable actions of judges as in the Moorthy cases, which send spine-chilling horror among Malaysian non-Muslims, who are entitled to more faithful civil judges.