The Perlis Islamic Religious and Malay Customs Council (Maips) is acting outside its state territorial jurisdiction in its bid to intervene in the divorce proceedings between Loh Siew Hong and her Muslim convert ex-husband, her lawyers submitted.
However, the state religious council’s legal team countered that it has inter-state jurisdiction when it comes to ensuring the welfare of the 35-year-old single mother’s three unilaterally converted children.
These submissions were heard during a hearing before the civil court today, namely the Kuala Lumpur High Court (Family).
Maips previously filed for leave to intervene in the civil court matter so that it would have legal standing to seek to modify Loh’s custody order over her three children who were converted into Islam by their father Muhammad Nagahswaran Muniandy, 35.
The council sought to be made a party so that it could further apply to vary the custody order – granted to Loh – in order to safeguard the Islamic education of her children, aged between 11 and 14.
During today’s hearing before civil court judge Evrol Peters Mariatte, Loh’s counsel A Srimurugan submitted that Perlis religious state enactment does not empower Maips with jurisdiction in other states.
The lawyer submitted that the divorce proceedings between Loh and Nagahswaran are a civil court matter and not a Syariah Court matter that permits Maips any right to be a part of.
Srimurugan argued that the Law Reform (Marriage and Divorce) Act 1976 (LRA) governs marriage and divorce matters involving non-Muslims, thus barring the involvement of an Islamic state council.
The Perlis state law in question is the Administration of the Religion of Islam Enactment 2006 (Perlis).
Malaysia practices a dual legal system split between the Syariah laws and the secular civil laws.
The lawyer contended that the case laws that Maips is relying on to intervene in Loh’s divorce matter actually state that only interested parties directly involved in the non-Muslim divorce – such as individual family members – have the right to intervene.
“My friend’s (Maips’ legal team) case authorities were on parties linked to the marriage, not to an outsider and busybody.
“They (Maips) cannot come to court and try to vary the custody order to tell (Loh) how to raise her children.
“It (LRA) does not include corporate or religious entities. The word ‘interested persons’ (in LRA) must be interpreted strictly for the interest of the child,” Srimurugan said.
Maips’ lawyer Mohamed Haniff Khatri Abdulla then objected to the labelling of the state religious council as a “busybody”, saying that as it is merely carrying out its legal duty to ensure the welfare of Loh’s three children.
The lawyer stressed that Perlis’ state enactment empowers Maips with jurisdiction to provide for the religious education of any mualaf (new converts to Islam) registered in the state, even if the converts are currently residing in another state.
Loh and her three children are currently living in Selangor.
“Maips has a statutory duty and they did not wish to be busybodies.
“We should not be focusing on the right of the father or mother, but the right of the children. Time and time again that is the common law (from the United Kingdom) basis that the LRA emphasises,” Haniff argued.
The lawyer contended that Maips is concerned with the children’s welfare as past news reports indicated that the children are still practising Islam even when under the present custody of non-Muslim Loh.
The atmosphere in the civil court took a heated turn when both legal teams began touching on the issue of the unilateral conversion of Loh’s children.
Haniff had submitted that Maips should be allowed to intervene as the issue of the children’s conversion to Islam on July 7, 2020, was not before the civil court then, when it granted full custody of the children to Loh.
The civil court granted full custody on March 31 last year and decreed nisi (to annul the marriage) on Sept 23 last year.
Nagahswaran, who is currently serving a jail sentence in Kelantan over a drug offence, was alleged to have run away with the children and carried out the conversion in July 2020.
The conversion was allegedly done without Loh’s consent and knowledge.
However, Haniff’s submissions attracted a fierce response from Loh’s other lawyer, Shamsher Singh Thind, who countered that the intervener application should be dismissed as Loh’s separate bid to challenge the children’s conversion is pending before another civil court.
Shamsher urged the civil court to consider the element of prejudice that may befall Loh if Maips is allowed to intervene, as the single mother was allegedly the target of online attacks on social media over the religious issue.
“There are a lot of attacks on Facebook (against Loh) that claim that they (Loh’s three children) are Muslim children.
“There would be prejudice (against Loh) if the (civil) court allows the intervention, as a unilateral conversion is illegal and they (Maips) never questioned the unilateral aspect of the conversion,” Shamsher contended, as Loh looked on from the public gallery.
The lawyer then relied on the landmark 2018 Federal Court decision in M Indira Gandhi’s case, which declared as invalid the unilateral conversion of her children by her former husband, who previously converted to Islam.
Evrol then urged both legal teams to calm down, reminding them that the present case does not involve religion but the interest and welfare of the children.
“It is not about religion. It is about the rights of the child. Here, the children are minors, and their rights are being exercised by the parent (Loh), while the religious council (Maips) contend they have the right to exercise (their duty to the children),” Evrol said.
The judge then fixed June 15 for a decision on whether to grant leave to Maips to intervene in the divorce proceedings.
If the state religious council is granted leave, then it would take the next step of applying for an order to vary the custody order.
Loh’s separate bid to strike down her children’s conversion is fixed for hearing before another Kuala Lumpur High Court on May 17.
On Feb 21, the Kuala Lumpur High Court (criminal jurisdiction) allowed her habeas corpus application to be reunited with her three children. – Malaysiakini