ARTICLE 12

ARTICLE 12 – RIGHT IN RESPECT OF

EDUCATION
12. (1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen
on the grounds only of religion, race, descent or place of birth—

(a) in the administration of any educational institution maintained by a public authority, and, in particular, the
admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education of
pupils or students in any educational institution (whether or not maintained by a public authority and
whether within or outside the Federation).

(2) Every religious group has the right to establish and maintain institutions for the education of
children in its own religion, and there shall be no discrimination on the ground only of religion in any law
relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation
or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide
or assist in providing instruction in the religion of Islam and incur such expenditure as may be
necessary for the purpose.

(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.

(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be
decided by his parent or guardian
ARTICLE 12 V UDHR
 Article 26 of UDHR
 (1) Everyone has the right to education. Education shall be free, at least
in the elementary and fundamental stages. Elementary education shall
be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to
all on the basis of merit.
 (2) Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further
the activities of the United Nations for the maintenance of peace.
 (3) Parents have a prior right to choose the kind of education that shall
be given to their children.
 Unlike FC, stressing more on universality of education. While FC
more on religious education.
ARTICLE 12 V ECHR
 Not mentioned in main ECHR, but mentioned in Article
2 of Protocol 1 of the ECHR ;
 Article 2 provides for the right not to be denied an
education and the right for parents to have their children
educated in accordance with their religious and other
views. It does not however guarantee any particular level
of education of any particular quality.
 Have same features as FC; religious education.
ARTICLE 12 OF FC
 Concerning Rights in Respect of Education
 Rights under article 12 protects only citizens. Despite its title, the provision is
essentially about the rights with respect to religions, especially religion and
its connection with education as well as religious education.
 Article 12 (1)(a) makes it clear that discrimination based on religion,
race, descent and place of birth should not be allowed to reign in public
educational institutions.
 The provision also guarantees that every religious group has the right to
establish and maintain educational institutions for its children [Article
12(2)].
 Article 12(3) states that no person shall be required to receive instruction
in or to take part in any ceremony or act of worship in religion other than
his or her own.
 Article 12(4) states that the religion of a person under 18 shall be decided
by his parent or guardian.
 Rights only available to citizens
ARTICLE 12 OF FC
 Case : Merdeka University Berhad v Government of
Malaysia
Held : Article 12 (1) only applies to public educational
institutions.

 Case: Teoh Eng Huat v Kadhi, Pasir Mas & Anor

Held : no infant shall have the automatic right to receive
instruction relating to any other religion than his own
without the permission of the guardian or parent.
ARTICLE 13
ARTICLE 13
 Rights to property
13. (1) No person shall be deprived of property save in
accordance with law.
(2) No law shall provide for the compulsory acquisition or
use of property without adequate compensation.
ARTICLE 13 V UDHR
 Article 17.
 (1) Everyone has the right to own property alone as well as in
association with others.
 (2) No one shall be arbitrarily deprived of his property.

 FC have “save in accordance with law”

 FC also stipulates compensation must be given if the
property being deprived.
 Article 17 of UDHR is more general.
ARTICLE 13 V ECHR
 Not mentioned in main ECHR, but mentioned in Article 1
of Protocol 1 of the ECHR ;
 (1) Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
 (2) The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties
 No one should be deprived except provided by law
 State can enforce control the use of property.
ARTICLE 13 OF FC
o There are two essentials under this provision. Firstly, no one shall be
deprived of property and secondly, in case of an acquisition or use by
public authorities, the owner of the property should receive compensation.
o It must be noted that the phrases ‘save in accordance with law’ in Article
13(1) and
o ‘adequate compensation’ in Article 13(2), are rather ambiguous.
o However the word ‘person’ in Article 13(1) have been decided to include
artificial persons who has legal personality.
o The problem lies with regards to the interpretation of the word “property”.
The privy council in the case of Selangor Pilot Association (1977) held that
goodwill was not property and even if it was, there is no acquisition.
o Orang Asli: Does ancient use and possession of land confer title to it or
ownership? In the case of Adong bin Kuwau (1997), a group of aborigines
were denied their source of livelihood as a result of the clearing of the jungle
in which they have been living to construct a dam. The courts held ;-
i) property includes both real and personal property.
ARTICLE 13 OF FC
ii) property may signify either the subject matter itself or
interests valuable rights attached to it.
iii) property may include certain rights such as possession,
enjoyment etc.

As for ‘adequate compensation’, the courts noted that the

plaintiffs have suffered :-
i) deprivation of heritage land.
ii) deprivation of freedom of inhabitation or movement under
Article 9(2) of FC.
iii) deprivation of produce of the forest.
iv) deprivation of future living for themselves and their immediate
family.
v) deprivation of future living for their descendants.
ARTICLE 13 OF FC
The building of the dam was held to have denied the
aborigines their rights to enjoy the forest produce and as
such the state authority was in breach of Article 13.
RM 26.5 million was ordered as compensation. The
court further stated that “…In
awarding the compensation, I have in mind that the sum
would not only reflect a just
figure, but also a sum which would enable the plaintiffs
to put into good use and
regenerate …”
ARTICLE 13 OF FC
 Kerajaan Negeri Selangor v Sagong Tasi
 Seven orang Asli sued Federal and state government, the
Malaysian Highway authority, and UEM company for loss of
Orang Asli land and dwellings when their land was acquired
to build KL-Nilai Highway.
 The plaintiff compensated under s11 and 12 of the Aboriginal
People Act which provided compensation only for loss of
crops and dwellings.
 The Plaintiff argued that it is not enough since they are
customary owners, and have the rights to use and profit from
the land. – the court agreed.
 The court held that the compensation should be paid
according to Land Acquisition Act not Aboriginal People Act.
ARTICLE 13 OF FC
 However the position of Orang Asli cannot be equated
with squatters.
 Sidek Haji Muhammad &461 Ors v The government of
Perak
 Squatters opened up large tracks in the jungle for cultivation
 They alleged that State Director of Land and Mines made a
promised to give each settler family five acres of Padi land –
they corroborate this promise with an article in the
newspaper. Eventually some received 3 acres, some received
nothing
 Court held that sqautters have no right in law and equity,
promiesed made by the Director is not bind the government.
ARTICLE 13 OF FC
o In the case of Batu Kawan (2002), the Federal Court held
that ‘adequate compensation’ is a question of fact and
in this case several factors such as locality, size,
accessibility, use of the land at the material time as well
as other awards given to the lands in the locality were
taken into account.
o As for the issue of ‘save in accordance with law’, cases
such as Arumugam Pillai v government [1975] and
Kulasingam v Commissioner [1982] seems to suggest
that it can be any laws that are passed by the competent
legislature which can even include unjust or oppressive
laws. (same as Article 5?)
ARTICLE 13 OF FC
o As per Gill FJ in Arumugam Pillai, “… whenever a
competent legislature enacts a law in the exercise of any
of its legislative powers, destroying or otherwise
depriving a man of his property, the latter is precluded
from questioning its reasonableness by invoking Article
13(1) of the Constitution, however arbitrary the law
might palpably be…”.
o However there has been cases where the court seem to
have been able to dispense some justice by relying on
notions such as unreasonableness or inordinate delay.