14 fundamental 11 12 (10)

FUNDAMENTAL
LIBERTIES
ARTICLES 11-13
OF THE FC

ARTICLES 11-13 OF THE FC

Article 11

Freedom of Religion
Article 12
Right in Respect of
Education
Article 13

FREEDOM OF RELIGION
Scope of the Protection ~ Arts
3,8,11, 12 & 150 (6A).
Article 11(1) : ‘every person has the
right to profess and practise his
religion and, subject to Clause (4),
to propagate it’.

FREEDOM OF RELIGION
Article 11(2) : ‘no person shall be compelled

to pay any tax the proceeds of which are
specially allocated to a religion other than
his own’.
A non-Muslim is constitutionally entitled to
refuse to contribute to funds of zakat, fitrah
& baitulmal – specially allocated for Islamic
purposes.
But a non-Muslim cannot refuse to pay a
general tax (like income tax) even if part of
the revenue is utilised for Islamic activities,

FREEDOM OF RELIGION
Art 11(3) : Every religious group has the right to

manage its own affairs, to establish & maintain
institutions for religious or charitable purposes &
to acquire & own property & hold & administer it
in accordance with law.
Arts 12(1) & 8(2): There is to be no
discrimination on the ground of religion in
relation to the rights of students to education or
in public support for educational institutions.
Art 12(2): Every religious group has the right to
establish & maintain institutions for religious

FREEDOM OF RELIGION
Art 12 (3) : ‘no person shall be required to

receive instruction in or to take part in any
ceremony or act of worship of a religion other
than his own’. This provision:
a) forbids compulsion but a person is not
prevented from voluntarily participating in other
people’s religious activities.
b) refers the term ‘religion’ (& elsewhere in the
FC), at least in the case of Muslim, to ‘the formal
religion one is born into’ – no choice to choose
systems of belief & there is punishment for

FREEDOM OF RELIGION
Art 12 (3)
c) the protection of the FC applies against

instruction in a religion other than one’s own.
No right to refuse instruction in one’s own
religion.
In Noorliyana Yasira [2007] The court refused
the application to be exempted from attending
the Islamic religious class in school & to delete
the failing grade for her UPSR examination (she
failed to take the subject). The court largely
avoided the constitutional issue of what

FREEDOM OF RELIGION
In Noorliyana Yasira [2007] The court based its

decision on the premises that:
i. any one professing the religion of Islam had to
study the Islamic studies subject
ii. a student in a state-run school, like the
applicant, could not dictate what subjects/core
subjects she wishes to learn.
d) forbids compulsory religious instruction in a
religion other than one’s own for worship/
ceremonial purposes. Permissible for academic
purposes i.e. study of history/civilisation.

FREEDOM OF RELIGION
Art 8(2): There can be no discrimination on the

ground of religion against employees in the
public sector, in the acquisition, holding or
disposition of property, and in any trade,
business/profession.
Limits on Art 149 powers: Freedom of religion is
not subject to the special powers under Art 149.
A preventive detention order cannot be issued
on the ground that a convert out of Islam is
involved in a programme for propogation of
Christianity amongst Malays: Jamaluddin [1989]

FREEDOM OF RELIGION
Limits on Art 150 powers: Art 150 (6A) provides

that freedom of religion cannot be restricted by
an emergency law under Art 150.
Belief in God: Not all religions, among them
Buddhism & Sikhism, are centred around God.
The FC protects all religions whether theistic/
not.
Art 3(4): Though Islam is the religion of the
federation, Art 3(4) states that nothing in Art 3
derogates from any other provision of FC. The
right to religion guaranteed by Art 11(1) is not

FREEDOM OF RELIGION
Restrictions – direct & indirect restraints:
Art 3(1): the practice of religion must not disturb

peace & harmony
Art 10 & 12: The restrictions on freedom of
speech, assembly & association in Art 10(2),(3) &
(4) are also relevant because religious freedom is
a bundle of many attributes & on educational
rights in Art 12.
Art 11(4): The right to propagate one’s religion is
subject to limitation. Missionary activity
amongst Muslims may be regulated.

FREEDOM OF RELIGION
Art 11(4): Under the authority of Art 11(4), State

law may restrict the propagation of any religious
doctrine among Muslims. 9 State Legislatures
have passed such laws.
Art 11(4) is broadly worded that it covers all
proselytising activities that are directed at
Muslims especially against well-organised &
well-funded international missionary activities.

FREEDOM OF RELIGION
Art 11(4): In Malay mind the words ‘Islam’ &

‘Malay’ are often used interchangeably.
Conversion out of Islam would automatically
mean deserting the Malay community due to the
legal fact that the definition of ‘Malay’ in Art
160(2) contains 4 elements – Professing Islam is
the first & perhaps the most important element.

Enforcement of State laws to ban propagation to

Muslims poses constitutional difficulty. Syariah courts
do not have any jurisdiction over non-Muslim. It has to
be tried by a Magistrate’s Court.

FREEDOM OF RELIGION
Art 11(5): All religious freedom is subject to

public order, public health & morality. The exact
scope of these permitted limitations has not
been adequately examined. Any
legislative/administrative regulation of this
freedom is justiciable.
Non-mandatory practices: Extend to those
practices & rituals that are important &
mandatory or covers practices that are optional?
Halimatussadiah [1992]: a non-mandatory

FREEDOM OF RELIGION
Non-mandatory practices: Meor Atiqulrahman

[2000]: the High Court held that the
constitutional freedom extends to practices (like
wearing a serban) which, though not mandatory,
are part of the religious tradition. On further
appeal, Abdul Hamid FCJ clarified that:

i. the integral part of the religion test is important but cannot be

relied on exclusively – in some circumstances, not mandated,
may be protected & mandatory, may have to be restricted.
ii. prohibition is total/partial, temporary/permanent
iii. all factors should be considered.
iv. the power to make the ultimate decision rests with the court.
v. the judge disapproved of the appellant’s view that ‘anybody has
the right to do anything, any time… the only limit is clause (5)’.

FREEDOM OF RELIGION
State power over Muslims: all Muslims are

subjected to additional restraints under Schedule
9 List II Paragraph 1. It permits the State
Assemblies to create & punish offences by
persons professing the religion of Islam against
the percepts of that religion. State assemblies
have become emboldened to enact more & more
laws to criminalise words, actions & beliefs that
they regard as sinful/criminal in Islam including
apostasy & deviationist conduct. Doubts have
grown about whether freedom of religious belief
in Art 11(1) is available to Muslims.

FREEDOM OF RELIGION
Planning Permissions: Art 11(3)(c) provide the

right to acquire & own property & to hold &
administer it. However, this is subject to local
authority laws on planning permission for places
of worship. Without permission, this often leads
to orders for relocation & on some occasions, to
controversial moves to demolish the illegally
built shrines.
Deviationist: In M’sia, the concept of ‘religion’
refers to established & ancient religions &
excludes cult & sects with distinct philosophies &
rituals of their own. The law is particularly severe

FREEDOM OF RELIGION
Atheism: In a traditional society like M’sia with an

official religion & a Rukun Negara, which affirms a
commitment to belief in God, atheistic practices may
not receive much sympathy in the courts. Arts 11(2) & 12
(3) may pose problems for the constitutional rights of
non-believers, atheists, agnostics, free thinkers &
rationalists.
Patriotic Activities: Freedom of religion does not confer
a right to refuse to take part in patriotic activities.
Minors: Under Art 12(3) the religion of a person under
18 years is to be decided by his parent/guardian: Teoh
Eng Huat [1990].

FREEDOM OF RELIGION

Conversion: The right to convert out of one’s faith is

not mentioned explicitly in the FC.
Art 18 of the Universal Declaration of Human Rights
1948 (UDHR) provides that ‘everyone has the right to
freedom of thought, conscience and religion, this right
includes freedom to change his religion or belief, and
freedom, either alone or in community with others and
in public or private, to manifest his religion or belief in
teaching, practise, worship & observance’. Art 18 of the
International Covenant on Civil & Political Rights 1966
(ICCPR) states similar right.
UDHR has been given partial recognition by section
4(4) of the M’sian Human Rights Commission Act 1999.

FREEDOM OF RELIGION
Conversion: For non-Muslim, the right to opt out of

one’s faith & choose another has been regarded as part
of religious liberty guaranteed by Art 11. However, a
child below 18 need to conform to the wishes of his/her
parents in the matter of religious faith: Teoh Eng Huat
[1990]. Thus, a Buddhist girl of 17 had no constitutional
right to abandon her religion & embrace Islam.
Muslim: the issue of apostasy is regarded as absolutely
abhorrent & as a politically explosive proposition. Some
of the cases involve heart-wrenching stories of broken
homes, dissolved marriages, infant child separated from
parents & disputes between families & religious
authorities on the religion of a deceased.

FREEDOM OF RELIGION
Conversion: Apostasy out of Islam in M’sia is

complicated by political, social, economic, historical &
constitutional dimensions.
Political dimension: There is an inseparable link
between race & religion. Under Art 160(2) Islam is
defining feature of a Malay’s ethnic identity. Exodus of
Malay from Islam would reduce the numbers of Malays
& thereby weaken Malay political power.
Socio-economic & personal law dimension: A Muslim
apostate will lose his ‘Malay’ status. His marriage will be
dissolved. He will not be eligible for inheritance under
Islamic law. If the apostate is the holder of a Malay
reserve title, his title may have to be revoked.

FREEDOM OF RELIGION with
Religious dimension: The Holy Quran is replete

passages condemning apostasy. Among them are:
‘How shall God guide those who reject Faith after they
accepted it…?’ Surah 3:86
‘On them (rests) the curse of God, of His angels & of all
mankind’ Surah 3:87
‘..For the wrongdoers We have prepared a Fire whose
smoke & flames like the walls & roof of a tent will hem
them in…’ Surah 18:29.
However, there is no worldly punishment for murtads
(apostates). Many Muslim jurists rely on 2 known hadith
(saying of the Holy Prophet) that apostates should be
advised, imprisoned & if they still persist, then
beheaded.

FREEDOM OF RELIGION
Religious dimension: Some scholars argue that Prophet

Muhammad never put anyone to death for apostasy per se. Only
the belligerent murtad who is involved in warring against the
Muslims is to be killed.
A few Muslim governments like Saudi Arabia & Afghanistan have
legislated death for apostasy. But majority of Muslim nations
leave the matter at advising & counseling.
Historical dimension: i. In Perlis, Kedah, Penang, Selangor,
Federal Territories, Johor & Sarawak, the Syariah enactment
remain silent on the question of apostasy. ii. In Sabah, Malacca &
Kelantan, an intending apostate can be detained in a
rehabilitation centre for a period provided by law. iii. In Negeri
Sembilan, subject to compulsory counseling & other procedures
for prescribed durations without detention. iv. In Perak, Pahang,
Terengganu & Malacca, punish with fine, imprisonment &
whipping.

FREEDOM OF RELIGION
Constitutional dimension: Several states enactments that permit

the arrest & rehabilitation of apostates shake constitutional
theory to its roots. These enactments are against the FC’s
guarantee of religious liberty & international law. The
conservative interpretation of religious freedom in Islam collides
with Art 11 & raises difficult constitutional issues under Art 3, 5,
10, 11 & 12.
Art 3(4) provides that nothing in this Article derogates from any
other provision of the FC. Meaning that the constitutional rights
in Arts 10, 11 & 12 are not extinguished despite the adoption of
Islam as the religion of federation. Art 3(1) does not override Art
11(1).
Forced rehabilitation will be an interference with personal liberty
guaranteed by Art 5(1) & against the spirit of Art 12(3).

FREEDOM OF RELIGION
Constitutional dimension:
Art 10(1)(a) guarantees speech & expression. A murtad

may claim that the rehabilitation law violates his rights
under Art 10 unless aspects of public order can be used
to defend the murtad law.
Art 10(1)(c) guarantees the right to associate and right
to disassociate.
Art 11(1) is broad enough to permit change of faith.
Though Art 11(4) restricts propagation of any religion to
Muslims, the law nowhere forbids voluntary conversion
of a Muslim to another faith. Any attempt to keep a
person within fold by compulsion is unconstitutional.

FREEDOM OF RELIGION
Constitutional dimension:
Civil Courts’ Approach: It involves 3 main provisions:
Art 4(1) constitution is supreme
Art 11(1) that every one including a Muslim, has freedom

‘to profess & practice his religion’
Art 3(4) nothing in Art 3 ‘derogates from any other
provision of this Constitution’.
Jamaluddin [1989] the freedom of a convert from Islam
was recognised by the Supreme Court.
Ng Wan Chan [1991] a Buddhist had converted to Islam
but renounced his new religion later. On evidence of
the wife the civil court ruled that her husband was a
Buddhist at the time of the death.

FREEDOM OF RELIGION
Civil Courts’ Approach:
Che Omar Che Soh [1988] decided that Art 3(1) is a mere

ritualistic & ceremonial role to Islam. Since the early 90s
many judges ignored Che Omar and strengthened the
Islamic features of the FC through Hakim Lee (1998),
Daud Mamat (2000), Shamala (2004), Saravanan (2007)
& Lina Joy (2007).
In these decisions the court have shifted towards a view
which is fully in accord with Islamic theory but which
was explicitly rejected by the drafters of the FC. They
are rewriting the federal-state division of power in
favour of the State on any matter touching on Islamic
religion. The superior courts are generally refusing
jurisdiction in cases involving mixed questions of civil &

FREEDOM OF RELIGION
Civil Courts’ Approach:
On issues of conversion out of Islam the civil courts

near unanimous that a Muslim does have a right to
convert but he cannot do it unilaterally:

He must first obtain a Syariah Court certificate of renunciation:

Kamariah [2002]
Merely showing that he drank alcohol & ate pork did not indicate
renunciation, strict affirmative proof is required to show that a
Muslim had renounced Islam: Dalip Kaur [1992] & Re Mohammad
Said [1965]
All matters of apostasy are within the jurisdiction of the syariah
court: Soon Singh [1999] & Dalip Kaur [1992]
In contrast, the way a person renounced a religion should be in
accordance with the regulations or law determined by the
religion itself: Lina Joy (2007).

RIGHT IN RESPECT OF EDUCATION
Art 13(2) of the International Covenant on

Economic, Social & Cultural Rights 1966 requires
that ‘primary education shall be compulsory and
available free to all’ and secondary, technical,
vocational & higher education shall be accessible
to everyone.
No constitutional right to receive free
education.
In M’sia, primary & secondary education has
been free & tertiary education has been
subsidised.

Federal-State Division of Powers
Under section 13 of the List I of the Ninth Schedule

power to enact laws on education belongs to the federal
Parliament.
‘Education’ is defined to include elementary, secondary
& university education, vocational & technical
education, training of teachers, registration & control of
teachers, managers & schools, promotion of special
studies & research & scientific & literary societies.
Parliament has enacted laws on this matter including
Universities and University Colleges Act 1971, Universiti
Teknologi MARA Act 1976, Education Act 1996 & Private


Federal-State Division of Powers

Unresolved issue is whether Islamic religious education

is in federal or state hands.
One perspective is that federal power in the Ninth
Schedule in relation to ‘elementary, secondary &
university education, vocational & technical education,
promotion of special studies & research…’ encompasses
all type of education including Islamic religious
education.
The other view is that under the Ninth Schedule, List II,
Item I, States have exclusively jurisdiction over ‘the
control of propagating doctrines & beliefs among
persons professing the religion of Islam’. This indirectly
vests the States with jurisdiction over Islamic education.

Equality & Non-Discrimination
Art 12(1) provides that without prejudice to the

generality of Art 8, there shall be no discrimination
against any citizen on the ground only of religion,
race, descent or place of birth in the administration
of any educational institution maintained by a public
authority, and in particular, in the admission of
pupils or students or in the payment of fees.
However, any issue on gender discrimination in the
area of public education will fall under Art 8 (1) & (2)
by virtue of the provisions stating ‘without prejudice
to the generality of Art 8’.

Equality & Non-Discrimination
Art 12(1) applicable to both public and private

authority involving financial aid for maintenance or
education of students in any educational institution.
Cf Merdeka University [1981] Financial aid & land
grants are given to all educational institutions.
 Regulation 5 of the First Schedule of the Universities
& University Colleges Act 1971 (Act 30) requires that,
subject to Art 153, membership of the universities,
whether as an officer, teacher/ student shall be open
to all persons irrespective of sex, race, religion,
nationality/ class.

Affirmative Action: Article 153
Art 153(8A) provides that is shall be lawful for the

YDPA to give such directions to any university or
college or institution providing education after
Malaysian Certificate of Education to ensure the
reservation of such proportion of places for Malays &
the natives of Sabah & Sarawak.
Some engaging issues:
i. Do his Majesty’s directions extend to private
sector?
Art 153(2) refers to ‘scholarship… given or accorded
by the Federal Government’. Perhaps the affirmative
action policies are applicable only in educational

Affirmative Action: Article 153
ii. What proportion of places can be allocated on an

ethnic basis? The language of Art 153(8A) ‘such
proportion as the YDPA may deem reasonable’ allows
greater subjectivity & discretion. Differences have
always been resolved outside the courts.
iii. Whether quotas apply to specific courses of study
which imbalances exist or to the university as a
whole? Can the massive ethnic disparities in private
centres of learning & in the citadels of education
abroad be used to determine what is a reasonable
quota for local public universities?

Religious Education:
Art 12(2) every religious group has the right to

establish & maintain institutions for the education of
children in its own religion.
Under Art 3(1) federal & state governments are
permitted to establish, maintain /assist Islamic
institutions.
Art 12(3) & Teoh Eng Huat [1986] : Art 12(3) is not
violated if a person voluntarily receives instruction in
a religion other than his own.
Art 12(4) clarifies that for the purpose of religious
instruction ‘the religion of a person under the age of
18 years shall be decided by his parent or guardian’.

In Teoh Eng Huat [1986] infants have no

constitutional right to receive instruction in any
religion other than his own or to convert to another
faith without permission of a parent/ guardian.
In Chang Ah Mee [2003] an infant’s father converted
to Islam & without the consent of the mother, got his
infant child converted to Islam as well. The mother
sued. In a far reaching judgment the High Court held
that:
i. The FC does not discriminate against the sexes.
ii. The father & mother have equal rights over the
person & property of infant.

In Chang Ah Mee [2003] :
iii. Section 68 of the Sabah Administration of Islamic

Law Enactment 1992 required the consent of ‘parents’
to the conversion to Islam of a person below 18 years
of age.
iv. The term ‘parent’ in Art 12(4) of the FC must
necessarily mean both father & mother if both are
living. To allow just one parent to choose the religion
of the infant would invariably mean depriving the
other of the constitutional right under Art 12 (4).
v. A civil court has jurisdiction to interpret state law
even if it concerns the administration of Islamic law.

Cf in Shamala Sathiyaseelan [2004] the parties were

married according to Hindu rites & registered under
the Law Reform (Marriage & Divorce) Act 1976. The
husband converted to Islam & converted his two
infant children to his new faith without the consent
of the Hindu mother. The wife sought a declaration
that the conversion of the two infant children was
null & void. Faiza Tamby J held:
i. In Art 12(4) the term ‘parent’ was used in the
singular. As such the consent of a single parent was
enough to validate the conversion of a minor.

Cf in Shamala Sathiyaseelan [2004]:
ii. The husband, having converted to Islam was not bound by

section 5 of the Guardianship of Infants Act 1961 which gave
both parents equal rights.
iii. The Muslim father had the capacity to convert the two
minors to Islam.
iv. Because of Art 121 (1A) , the Syariah Court was the qualified
forum to determine the status of the two children.
Prof Shad’s comment: Plaintiff non-Muslim –could not go to
Syariah Court. Eleventh Sch of the FC, under section 2(95)
stated that ‘words in the singular include the plural’. In line with
Art 8(2) to outlaw gender discrimination.

Private Schools & Universities:
Section 28 of the Education Act 1966 allows ‘national

type’ schools to exist & to construct instruction in a
language other than Malay. It also allows private
educational institutions to exist under section 73 &
gives them considerable autonomy.
Merdeka University [1981] application to form a
private university with Chinese as the medium of
instruction was rejected and few issues were raised:
i. Art 8(2) that forbade racial discrimination cannot
be invoked because the protection applies to citizens
only. The Pf, a body corporate, was not a citizen.

Merdeka University [1981]:
ii. Language is not one of the prohibited grounds of

discrimination in Art 8(2).
iii. Any university established under the UUCA 1971 is an
‘authority’ under Art 160(2) & exercise power vested in it by
federal law.
iv. It is constitutional to prohibit/ prevent teaching/learning
anything in a language other than Malay.
v. The right to preserve & sustain the use & study of non-Malay
language in public institutions belongs to the Government.
Now, private universities are allowed by the Private Higher
Education Institutions Act 1996.

Language of Instruction
Under Art 152(1) the Malay language has been declared

to be the national language but for official purposes,
other languages can be used for teaching & learning.
Section 2 of the Education Act requires the used of
other language be made available if parents of 15 pupils
so request.
Merdeka University [1981] –every university-whether
public/private falls within the definition of ‘public
authority’ under Art 160(2).
Exceptions: the YDPA may permit the continued use of English

for such official purposes & the Minister of Education under
section 17(1) of the Education Act may exempt any educational
institution from use of Malay as main language.

14 fundamental 11 12 (10)

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (20)

En vedette

En vedette (11)

Similaire à 14 fundamental 11 12 (10)

Similaire à 14 fundamental 11 12 (10) (20)

Plus de Ainnabila Rosdi

Plus de Ainnabila Rosdi (20)

Dernier

Dernier (20)

14 fundamental 11 12 (10)