constitutional

1. DR HASLINDA MOHD ANUAR
SCHOOL OF LAW
COLGIS

2.  A11(1) – every person
has the right to profess
and practice his religion
and, subject to clause (4)
, to propagate it.
 3 elements:
◦ To profess
◦ To practice
◦ To propagate their
religion (subject to
A11(4))
 A11(2) – no person shall
be compelled to pay any
tax the proceeds of which
are specially allocated to
a religion other than his
own

3.  A11(3) – every religious
group has the right to
manage its own affairs; to
establish and maintain
institutions for religious or
charitable purposes; and
to acquire and own
property and hold and
administer it in
accordance with law.
 A12(1) & A8(2) – there is
no discrimination on the
ground of religion in
relation to the rights of
students to education or
in public support for
educational institutions

4.  A12(2) – every religious
group has the right to
establish & maintain
institutions for religious
education
 A12(3) – no person shall
be required to receive
instruction in or to take
part in any ceremony or
act or worship of a
religion other than his
own

5.  Noorliyana Yasira Mohd Noor v Menteri Pendidikan
Malaysia –
◦ Facts: the applicant’s father had requested tat the
applicant be exempted from attending the Islamic
religious class in school. The applicant failed to attend
the class; failed to take the Perkara Asas Fardhu Ain
for her UPSR examination; was awarded a failing
grade. She applied for certiorari to delete the failing
grade from her statement of result and for a
mandamus to obtain a new statement of result.

6.  Held: rejected the application on the grounds;
 Any one professing the religion of Islam had to study
the Islamic studies subject
 A student in a state-run school could not dictate what
subjects or core she wished to learn

7.  A8(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 or
profession.
 Limits on A149 – a
preventive detention
cannot be issued on the
ground that a convert out
of Islam is involved in a
program for propagation
of Christianity amongst
Malays.
◦ Jamaluddin Othman

8.  Minister of Home Affairs v Jamaluddin Othman
◦ Fact: The respondent was detained pursuant to an
order made under s 8(1) of the Internal Security Act
1960 (‘the Act’). According to the affidavit of the Minister
for Home Affairs he was satisfied that the detention of
the respondent was necessary with the view to
preventing him from acting in a manner prejudicial to the
security of Malaysia. This conclusion was apparently
arrived at after receiving reports and information relating
to the ‘conduct and activities’ of the respondent.

9.  Supreme court: The sum total of the grounds for the
detention was therefore the supposed involvement of the
respondent in a plan or programme for the dissemination
of Christianity among Malays. It is to be observed that
the grounds do not, however, state that any actions have
been done by the respondent except participation in
meetings and seminars and that the fourth allegation
alleged that the respondent converted into Christianity
six Malays.

10.  We do not think that mere participation in meetings and
seminars can make a person a threat to the security of
the country. As regards the alleged conversion of six
Malays, even if it was true, it cannot in our opinion by
itself be regarded as a threat to the security of the
country.

11. 1. A3(1) – the practice of
religion must not disturb
peace & harmony
2. A10 & 12 –same
restrictions as in
freedom of speech,
assembly &
association ; and in
education
3. A11(4) – state law may
restrict the propagation
of any religious doctrine
among Muslims
◦ whether by non-
Muslims or
unauthorised Muslims.

12. 4. A11(5) – all religious
freedom is subject to
public order, public
health and morality
5. Non-mandatory
practices
◦ Mandatory practices &
rituals vs optional/non-
mandatory practices

13.  Halimatussaadiah v PSC
◦ Facts: a Muslim lady in government employment insisted
on wearing purdah to office.
◦ Held: the court distinguished between;
 mandatory and optional religious practices: non-
mandatory practice (like wearing purdah) is not
protected by A11.
 Beliefs and practices: beliefs are personal but
practices may be regulated in the interest of society.
The conduct of a public servant can be regulated in
order to safeguard and protect government secrets
and government interests.

14.  Zakaria Abdul Rahman v Ketua Polis –
◦ A police regulation requiring a member of the force to
obtin prior permission before contracting a polygamous
marriage was held not to be violation of A11(1)
because a polygamous is merely permissive and not
obligtory in Islam.

15.  Meor Atiqulrahman Ishak v Fatimah bte Sihi
◦ HC: the constitutional freedom extends to practices
(like wearing serban) which, though not mandatory,
are part of the religious traditions
◦ CoA: there is a distinction between mandatory &
optional practices
◦ FC: disapproved the appellants’ view that ‘anybody
has a right to do anything, any time, any where which
he considers to be a practice of his religion, no matter
how trivial. The only limit is clause (5).’ It was held that
the school regulation was not unconstitutional

16. 6. State power over
muslims
◦ Schedule 9 List II
Paragraph I – state
assembly may create
and punish offences by
persons professing the
religion of Islam against
the precepts of that
religion.
 Minor
◦ A12(3) – the religion of
a person under 18
years is to be decided
by his parent or
guardian
◦ Teoh Eng Huat – A
Buddhist girl of 17 had
no constitutional right to
abandon her religion
and embrace Islam

18.  A13(2) of the International Covenant on Economic,
Social and Cultural Rights 1966 – primary education
shall be compulsory and available free to all.
 In Malaysia – there is no constitutional right to receive
free education.
 A12(1)(a) – without prejudice to A8, 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 education institution maintain by a
public authority, and, in particular, in the admission of
pupils or students or in the payment of fees.

19.  A12(1)(b) – no discrimination on the above grounds in
providing out the funds of a public authority, financial aid
for the maintenance or education of students in any
educational institution whether maintain by a public or
private authority.
 Regulation 5 of the First Schedule of the AUKU 1971 –
subjects to A153, membership of the universities,
whether as an officer, teacher or student shall be open
to all persons irrespective of sex, race, religion,
nationality or class.

20.  A153(8A) – it 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 and the natives of Sabah & Sarawak
as the King may den necessary

21.  A12(2)
 A12(3) –
◦ Teoh Eng Huat v Khadi Pasir Mas – held: A12(3) applies
if a persons is imparted instruction involuntarily. A12(3)
is not violated if a person voluntarily receives instruction
in a religion other than his own.
 A12(4)
◦ Teoh Eng Huat v Khadi Pasir Mas – held: infants have
no constitutional right to receive instruction in any
religion other than their own or to convert to another faith
without the permission of a parent or guardian.

22.  S6 of AUKU – exclusive power of the YDPA to establish a
university
 Merdeka University case –
◦ Facts: Merdeka University Berhad was rejected by the
government on the ground amongst them that the
university would use Chinese as the medium of
instruction and that the setting up of a university by the
private sector would be contrary to national policy.
◦ FC: the right to preserve and sustain the use and study of
non-Malay languages in public institutions belongs to the
government

24.  A13(1) – no person shall
be deprived of property
save in accordance with
law
 ‘person’ – all persons,
whether natural or
artificial
 ‘property’ – all forms of
property:
◦ corporal (land, house);
◦ incorporeal (the right of
way);
◦ movable (chattels);
◦ immovable (land);
◦ tangible (money,
furniture);
◦ intangible (copyright,
patent)

25.  Adong bin Kuwau v
Kerajaan Johor – the
concept of property
broadly to cover real as
well as personal property,
the subject matter itself
as well as interests and
valuable rights like
possession and
enjoyment attached to it.
 Selangor Pilot
Association v The
Government – ‘goodwill’
and loss of future profits
were not recognised as
within the protection of
A13

26.  ‘in accordance with law’ –
the sanctity of property is
protected against
executive arbitrariness.
 Pengarah Tanah &
Galian v Sri Lempah
Enterprise – a planning
permission was granted
subject to a condition that
the applicant exchanged
its free hold title to for a
99 year leasehold. Held:
unconstitutional.

27.  A13(1) –
◦ Apply to all person, citizen & non-citizen, natural &
artificial person
◦ The impugned action amounted to ‘deprivation’ is
judicially examined
◦ The executive must base its actions on law – doctrine
of ultra vires & principles of natural justice
 Lai Tai v The Collector of Land Revenue - Notice of
intention to acquire & notice of the award of
compensation were not served on the occupier as
required by the law. Held: unconstitutional.

28.  A3(2) – ‘no law shall provide for the compulsory
acquisition or use of property without adequate
compensation’
◦ The Land Acquisition Act 1960 provide for a detailed
procedures for assessment of the compensation that
must be paid on account of the acquisition.
◦ If the opinion of valuation experts is not acceptable to
the owner, the judgment of the court can be sought

29.  Time limits
◦ Tan Boon Bak v Government of Perak – the plaintiffs
had agreed to the award in 1974 but were offered the
money only in 1981. Held: this delay in giving of
compensation did not harm the compulsory acquisition
order.
◦ Pemungut Hasil Tanah v Ong Gaik Kee – held: the
hearing should be convened with ‘all convenient
speed’. A 7 year delay was so manifestly
unreasonable

30.  A8 of the Land Acquisition Act was amended to provide
that the declaration made under it would lapse & cease
to have any effect if no award has been made by the
collector within 2 years after the date of the publication
of the declaration in the gazette.

31.  Public purpose
◦ Land Acquisition Act – the concept of private property
will not be acquired or required save for a public
purpose.
◦ Court are not prevented from examining whether
 the acquiring authority has misconstrued its statutory
power; or
 the purpose stated in the statutory declaration comes
within s3; or
 bad faith has been established.

32.  Post-acquisition hearing
◦ S38(5) of the Land Acquisition Act – on the quantum of
compensation
◦ Any interested person may make an objection to the
amount of compensation awarded within 6 months of
the date of the collector’s award

33.  A13(2) on compensation applicable only to acquisition &
requisition of property.