Rights and Liberties of

an Individual
(Art 11, 12 & 13)
UCL1622
ARTICLE 11 of FC
Freedom of Religion
Scope of Protection
• Available to citizens and non-citizens.
• Art 150(6A) forbids Parliament from encroaching on religious
freedom.
• Art 11(1) – “Every person has the right to profess and practice his
religion and, subject to Art 11(4), to propagate it”.
i. To profess: beliefs and doctrines.
ii. To practise: exhibition of the beliefs through acts, practices and
rituals.
iii. Subject to Art 11(4), to propagate the religion: attempts at
propagation and transmission of one’s beliefs to others in order
to convert them one’s faith.
Art 11(1) of FC
• Theoretically: the right to beliefs and doctrines is regarded as absolute
– the right is given to all persons in Malaysia.
• With Islamisation in full swing since 80s & claim since 2001 that M’sia
is an Islamic state – doubts arisen – whether freedom of religion is
available to Muslims.
o Numerous laws enacted – criminalise apostasy & other conducts
that are regarded as sinful under the syariah.
• In reality: the freedom of religion is NOT absolute.
o Kamariah bt Ali v Kerajaan Negeri Kelantan [2002] 3 MLJ 657:
Art 11(2) of FC
• “No person shall be compelled to pay any tax the proceeds of which
are specially allocated to a religion other than his own”.
• No compulsion to support a religion other than their own.
• E.g. a non-Muslim is constitutionally entitled to refuse – contribute to
zakat etc – specially for Muslims.
• But a Muslim is compelled to pay the relevant tax.
• But non-Muslim cannot refuse to pay a general tax i.e. income tax
even if part of the revenue is utilized to support Islam, official religion
of Malaysia.
Art 11(3) of FC
• “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.
Restrictions
1. Art 3(1): practice of religion must not disturb peace and harmony.
2. Art 11(4): Missionary activity amongst Muslims may be regulated.
• State law may restrict propagation of any religious doctrine among Muslims.
• Broadly worded – covers all proselytizing activities – directed at Muslims
whether by non-Muslims or unauthorized Muslims.
• States enacted laws under Art 11(4) to ban or regulate propagation to
Muslims – this state laws cannot be enforced by State Syariah courts – no
jurisdiction over non-Muslims – Magistrate’s Court should enforce the state
law.
3. Art 11(5): all religious freedom is subject to public order, public
health and morality.
Restrictions
4. Non-Mandatory practices
• Halimatusaadiah v PSC
o A Muslim lady in government employment insisted on wearing purdah to office.
o Court distinguished btw:
o mandatory vs optional religious practices
o Beliefs vs practices: beliefs – personal; practices – may be regulated
o Held: non-mandatory practice e.g. wearing purdah is not protected by Art 11.
o Conduct of public servant can be regulated to safeguard and protect
government secrets and interests.
• Zakaria Abdul Rahman v Ketua Polis
• Freedom of religion extends to only those practices and rituals – essential,
mandatory and integral to the religion.
• It does not cover practices – non-essential and optional.
• Also see: Fatimah binti Sihi v Meor Atigulrahman
Restrictions
5. State power over Muslims
• All Muslims are subjected to additional restraints under schedule 9 List II Para 1 – state
assemblies can create & punish offences committed by Muslims against the religion’s precepts.
6. Planning permissions
• Art 11(3)(c): “Every religious group has the right to acquire and own property and hold and
administer it in accordance with law.”
• All places of non-Muslim worship should register with a National Registry.
• Muslims places – register with the state authoritites.
• Illegal constructed religious sites – given option to move to alternatives sites.
• No demolition without a proper public enquiry and consultation with affected community.
7. Deviationists
• A criminal offence.
• Concept of ‘religion’ in Msia – established & ancient religions, excluding cults & sects with
distinct philosophies & rituals of their own.
• Religious groups that are not mainstream face severe scrutiny for deviationist activities.
• The law is particularly severe on Muslims – violate basic precepts of their faith – liable to
prosecution.
Restrictions
8. Atheism:
• Does ‘religion’ include non-theistic creeds e.g. agnosticism, free thought, atheism
and rationalism?
• Western theory & international norms – broad view of ‘religion’.
• Malaysia – traditional society – official religion & Rukun Negara – affirms a
commitment to belief in God.
• atheistic practices may not receive much sympathy in courts.
9. Minors:
• Art 12(3): religion of a person under 18 years – decided by his parent or guardian.
• Teoh Eng Huat v Kadhi Pasir Mas
• Supreme Court was asked to make a ruling on an appeal by a father whose
daughter, who has been raised as a Buddhist has voluntary converted to Islam.
• He asserted his claim as the father and lawful guardian which has the right to
decide the religion, education and upbringing of the children. The court ruled
in his favour.
Restrictions
10. Conversions:
• Right to conversion – not explicitly stated in FC.
• Art 18 of UDHR & Art 18 of the International Covenant on Civil and Political Rights (ICCPR).
• Art 18 of UDHR: “Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief…”
• Partially recognized by s 4(4) of the Malaysia’s Human Rights Commission Act 1999.
• Non-Muslims – right to conversion – guaranteed by Art 11.
• Muslims – issue of apostasy – taboo & absolutely abhorrent – many disturbing cases are
unresolved:
i. Renounce due to disillusionment with the administration of justice in Syariah courts:
o Daud Mamat v Majlis Agama Islam
- Held: freedom of religion under Art 11 does not include the right to apostate.
- Act of exiting from a religion is certainly not equated with the right to profess and
practise their religion.
- to include the right to renounce the religion of Islam would stretch the scope of
Article 11(1) to a ridiculous height.
Restrictions - Conversions:
ii. Reasons of the heart:
• wish to marry non-Muslims
• Muslim law in Malaysia does not allow a Muslim to marry a non-Muslim.
• Tongiah Jumali v Kerajaan Negeri Johor
• Lina Joy v Majlis Agama Islam
iii. Children born Muslims but raised as non-Muslims – wish to join the adoptive parents’ religion:
• Mohamed Azam, “Law of Apostasy and Freedom of Religion in Malaysia”, p 5: during Prophet
Muhammad’s time – Muslim children fostered by Jews – allowed to choose their religion.
• Rashidah bt Mohamad Myodin – unsuccessful application.
iv. Non-Muslims challenge alleged conversion of their dead children or spouses to Islam:
• Claim that their loved ones had lived all along as non-Muslims.
• These case could be avoided – conversion process was more open & family was consulted.
• Court tussles btw Islamic authorities & family over who has the right to bury the deceased and
according to what rites?
• Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam
• Nyona Tahir @ Wong Ah Kiew
Restrictions - Conversions:
v. Parent converted the children to Islam:
• In some cases, a husband in a non-Muslim marriage becomes a Muslim.
• The marriage was dissolve by the help of the syariah court.
• The husband then converted the children to Islam and obtained custody w/o the consent
of the other spouse.
• The non-converting spouse then sought the civil court’s help to get her children back.
• Saravanan a/l Thangathoray v Subashini
• Shamala Sathiyaseelan v Dr Jeyaganesh
• Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam
Perak & Ors and other appeals [2018] 1 MLJ 545
• “Articles 3, 5, 8 and 11 … contain the right of a mother to withhold her consent to
a unilateral change in her child’s religion.”
• “Article 12(4): … religion of a person under the age of eighteen years shall be
decided by his parent or guardian.”
• See:
https://www.malaymail.com/news/malaysia/2018/01/30/we-are-hindu-indiras-children-declare-confidently-aft
er-muslim-conversion-q/1565203
ARTICLE 12 of FC
Rights in respect of Education
ARTICLE 12
• 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.
• It 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.
ARTICLE 13 of FC
Right to Property
ARTICLE 13
• 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.
• It must be noted that the phrases ‘save in accordance with law’ in Article 13(1)
and ‘adequate compensation’ in Article 13(2), are rather ambiguous.
• However the word ‘person’ in Article 13(1) have been decided to include artificial
persons who has legal personality.
• 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.
ARTICLE 13
• Adong bin Kuwau:
• 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:
a)property includes both real (immovable) and personal property (movable).
b)property may signify either the subject matter itself or interests valuable
rights attached to it.
c)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
• 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
Batu Kawan:
• 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.
• for the issue of ‘save in accordance with law’, it can be any laws that are passed by
the competent legislature which can even include unjust or oppressive laws.
• 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…”.
• 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.
 Thank you
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