PUTRAJAYA, May 14 — After the Court of Appeal declared the unilateral conversion of her three Hindu children to Islam by their Muslim convert father unconstitutional earlier this year, Hindu mother Loh Siew Hong is set to face her final legal challenge at the Federal Court today.

Today has been fixed for hearing by the apex court to hear an application for leave to appeal filed by the Perlis Islamic Religious and Malay Customs Council (MAIPs) and the Perlis government regarding the religious position of the three children in their case against Loh as decided by the Court of Appeal.

At the Federal Court stage, the Federal Court’s leave must be obtained first before it proceeds to hear an appeal.

Should MAIPs and the Perlis government fail to obtain leave at this stage, the Court of Appeal’s January verdict will be taken as the final decision.

But before we go further, what are the facts of the case and why has Loh yet to receive full closure in her legal bid to have the unilateral conversion of her children to Islam declared unlawful?

Here’s a quick recap by Malay Mail of the facts that led to the case, based on court documents and court judgments:

Loh, a Buddhist in official records who also practises Hinduism, was married to her then Hindu husband Nagahswaran Muniandy in 2008. Their three children (twin daughters and a son) were born in Kedah, and all three birth certificates recorded the children’s religion as Hindu.

After alleged domestic violence involving her husband with incidents in 2017 and 2019, Loh was in March 2019 hospitalised due to injuries she claimed was inflicted by him.

Loh was then separated from her children for nearly three years from March 2019 to February 2022, only managing to reunite with them after the person taking care of them contacted her and after the High Court ordered their release to her.

(In other words, the children were aged 10 and seven when they were separated from the mother, and were aged 13 and 10 when they could live with her again.)

For about half of the period when Loh was separated from her children (namely September 2020 to September 2022), Nagahswaran was detained for drug offences until he succeeded in obtaining a Federal Court order for his release from Pusat Pemulihan Akhlak Machang in Kelantan.

Months after their divorce process began in December 2020, Nagahswaran in July 2020 became a Muslim convert and also took all three children along for their conversion to Islam. Loh has said this was done without her knowledge and consent.

Nagahswaran claimed that he and the children (then aged 11 and nine) had read out the kalimah syahadah — the declaration for belief in Islam — in both Arabic and Malay, and said that certificates of conversion to Islam were issued to all four of them on July 7, 2020.

Amid Loh being separated from her children, the couple were officially divorced based on a court order. As part of the divorce, the High Court in March 2021 granted sole guardianship and sole custody, care, and control of all three children to Loh.

Since reuniting with her children in February 2022, Loh has been residing with them.

The present case

The Court of Appeal had on January 10 this year allowed Loh’s appeal against the conversion of her three children to Islam without her consent, overturning an earlier High Court decision in May 2023 which had dismissed her challenge.

Subsequently, the four respondents — the Perlis registrar of Muslim converts, MAIPs, the Perlis mufti and the Perlis state government — filed an appeal on the appellate court’s decision on February 8.

As for the January 10 decision, Court of Appeal judge Datuk Hadhariah Syed Ismail who chaired a three-man panel, had in a unanimous decision ruled that a Perlis state law provision that allows conversion of children to Islam with just one parent’s consent is unconstitutional.

Read here for a quick summary of the Court of Appeal’s judgment and what parties have argued in the case that was appealed to the Federal Court today.

In the decision, The Court of Appeal also granted all nine orders that Loh asked for in her legal challenge against her children’s unilateral conversion to Islam, including declaring the three children are adherents of Hinduism.

The other nine court orders which Loh won include an order to quash the July 7, 2020 certificates of conversion to Islam which were issued to the three children; an order to compel the Perlis Registrar of Mualaf to remove the three children’s names from the Perlis registry of Muslim converts; and a declaration that Section 117(b) of a Perlis state law (which allows children to be converted without both parents’ consent) is unconstitutional and invalid.

Most importantly, the appellate court also made it clear that the Federal Court’s decision in M. Indira Gandhi’s case — that unilateral conversion is invalid — is still a binding decision on the lower courts, and said Loh did not consent to her three children to become Muslim converts.

This means that the Court of Appeal has declared the current Section 117(b) — which allows children to be converted to Islam without getting both parents’ consent — is against the Federal Constitution.