SEREMBAN: The High Court here has allowed an application by the Negri Sembilan government and state Islamic Affairs Council (MAINS) to strike out an originating summons challenging a man's burial that was conducted according to Islamic rites.
Judicial commissioner Mohamad Haldar Abdul Aziz said the court made the decision after perusing affidavits and written submissions filed by the parties, including the man's family as the plaintiff.
"The court, on the balance of probabilities, hereby allows the notice filed by the respondents to strike out the originating summons (by the plaintiff)," he said on Friday (Dec 20).
Roseli Mahat, the son of the deceased Mahat Sulaiman, applied on July 31 last year to have his father's remains exhumed from the Sikamat Muslim cemetery near here.
The 52-year-old plaintiff said his late father, born in 1941, had been a practising Hindu all his life and that his mother was of Indian descent.
Roseli, who has five siblings, had named the Malaysian government, the National Registration Department (NRD), the state government, MAINS and the Inspector-General of Police as respondents.
He had also sought general and exemplary damages and costs.
Roseli claimed that Mahat, who died at age 76 on Sept 29, 2017, at Hospital Tuanku Ja'afar here, was of Baba-Nyonya heritage.
He was told by the hospital authorities that since Mahat had a "bin" in his name, they were duty-bound to notify the religious department and await confirmation of his status from NRD.
He claimed that although he had informed the state Islamic authorities that his father was a Hindu, they went ahead and buried him according to Muslim rites.
Roseli said neither his siblings nor he had ever seen Mahat practising the Muslim way of life.
He also claimed that the state Islamic authorities had failed to provide him with any evidence to show that Mahat had converted to Islam.
When met outside the court later, Roseli's lawyer S. Karthigesan said his client would appeal the decision.
"We will wait for the broad judgment (before filing) an appeal, " he said.
Roseli said he had been trying for years to prove that his father was not a Muslim and now feared, following the court ruling, that his children and grandchildren would also be put in a similar predicament later.
"My late father only had a Malay name but he was not a Muslim.
"I also have a Malay name but I am a practising Hindu. Will my children be forced to run around after my passing as my religious status is also not mentioned on my birth certificate?" he asked.
Datuk Zainul Rijal Abu Bakar, who appeared for MAINS, said the council's position was that the matter came under the jurisdiction of the Syariah and not civil court.
"The civil court cannot interfere in such matters.
"Also, if the plaintiff was unhappy with the decision to bury his late father according to Islamic rites, he should have filed a judicial review then and not wait this long," he said, adding that the Syariah Court was the proper forum to look into the merits of the case.
Zainul was assisted by Muhammad Hafiz Md Yusoff, Danial Farhan Zainul Rijal, Nur Fatin Syakinah Kamarudin and Noor Syazwani Mohamad Yusri.
Roziaton Mohd Nordin, who appeared on behalf of the state government, said when met after the hearing that the plaintiff's action was not in line with provisions in the Government Proceedings Act 1956.
"The legislation clearly states that any action or civil proceedings against the government should be done within three years or 36 months.
"The plaintiff's action did not meet that requirement and (the time) has already lapsed," she added.
