14 fundamental 11 12 (10)

FUNDAMENTAL LIBERTIES

ARTICLES 11-13

OF THE FC

ARTICLES 11-13 OF THE FCArticle 11

Freedom of ReligionArticle 12

Right in Respect of Education

Article 13 Right to Property

FREEDOM OF RELIGIONScope 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 RELIGIONArticle 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, the official religion of Malaysia.

FREEDOM OF RELIGIONArt 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 education.

FREEDOM OF RELIGIONArt 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 ‘deviants’.

FREEDOM OF RELIGIONArt 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 constitutes ‘religion’ & what constitutes ‘freedom of religion’.

FREEDOM OF RELIGIONIn 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 RELIGIONArt 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 RELIGIONLimits 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 extinguished as a result of Art 3(1).

FREEDOM OF RELIGIONRestrictions – direct & indirect

restraints:Art 3(1): the practice of religion must not

disturb peace & harmonyArt 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.


restraints: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.


restraints: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.


restraints: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 practice (like wearing purdah) is not protected by Art 11.

FREEDOM OF RELIGIONNon-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 RELIGIONState 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 RELIGIONPlanning 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 on Muslims who violate the basic percepts of their faith.

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 RELIGIONConversion: 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 RELIGIONReligious dimension: The Holy Quran is replete with 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 RELIGIONReligious 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 RELIGIONConstitutional 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 RELIGIONConstitutional dimension:Civil Courts’ Approach: It involves 3 main

provisions:Art 4(1) constitution is supremeArt 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 RELIGIONCivil 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 & syariah law.

FREEDOM OF RELIGIONCivil 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 EDUCATIONArt 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.

RIGHT IN RESPECT OF EDUCATIONFederal-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 Higher Educational Institutions Act 1996.

RIGHT IN RESPECT OF EDUCATION

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.

RIGHT IN RESPECT OF EDUCATION

Equality & Non-DiscriminationArt 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’.

RIGHT IN RESPECT OF EDUCATIONEquality & 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.

RIGHT IN RESPECT OF EDUCATIONAffirmative 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 institutions maintained by the Federal Government.

RIGHT IN RESPECT OF EDUCATIONAffirmative 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?

RIGHT IN RESPECT OF EDUCATIONReligious 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.

RIGHT IN RESPECT OF EDUCATIONPrivate 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.

RIGHT IN RESPECT OF EDUCATIONMerdeka 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.

RIGHT IN RESPECT OF EDUCATIONLanguage 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)

Spiritual