federal constitution

1. 1

2.  Art 11(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 art
11(4)
 Art 11(2) no person
shall be compelled to
pay tax the proceeds
of which are specially
allocated to a religion
other than his own.
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3. 3

4. 4

5. 5

6. 6

7. 7

8. 8

9. Non Muslim cannot be forced to take Pendidikan Agama
Islam but Muslims can be forced because art 160(2) Malay
relates to Islam and subject to the restriction of Islam art 3
9

10.  The Minister for Home Affairs ordered the respondent’s detention
to prevent him acting in a manner prejudicial to the security of
Malaysia
 He applied for habeas corpus
 Held - The freedom to profess and practise one’s religion, as
guaranteed by art 11 of the Federal Constitution, had to be given
effect to but was itself subject to prejudice or threaten the
security of the country. However, the respondent’s alleged
actions, read in their proper context, did not fall within that
scope.
 The court fail to relate art 160 (2) and the state law under
Schedule 9, list 2 as well as art 11 (5)
 Why Andrew Harding said that insertion of art 11(4) and (5) is to
preserve public order
 This is what happen if man refuse to be subject to higher
authority – regardless whether the higher authority is the main
law, authorities, parents and Islamic religion.
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11. 11

12. Whether the wearing of purdah is mandatory
or not
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13. 13

14. 14

15.  This was not a total prohibition of the wearing of the
turban. The primary school students, although not
allowed to wear the turban as part of the school
uniform ie, during school hours, were not prevented
from wearing the turban at other times. Even in
school, certainly, they would not be prevented from
wearing the turban when they performed, say, their
"Zohor" prayer in the school "surau" (prayer room).
However, if they joined the "Boy Scouts", it would be
only natural if they were required to wear the Scouts'
uniform during its activities. It cannot be the law that
anybody has a right to do anything, anytime or
anywhere which he considers to be a practice of his
religion, except the only limit being art. 11(5) of the
Constitution.
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16.  Lina Joy applied to change her name from Azlina Bte
Jailani to Lina Lelani at the National Registration
Department. In her supporting documents, inter alia,
that she intends to marry a person who is
Christian.The application was however, rejected.
 The plaintiff applied for various declaratory orders,
among others: (1) That her rights to religious
freedom under Article 11(1) of the Federal
Constitution are rightly guaranteed; and (2) That any
laws, whether State or Federal Legislation, which
forbid or imposed restrictions on conversion out of
Islam, were null and void, being inconsistent with
Article 11(1) of the Federal Constitution.

17.  Held - Since the plaintiff was still a Muslim at
the time of the application, by virtue of
Article 121(1 A) of the Federal Constitution,
the only competent court to declare her
apostasy was within the Shari 'a Courts.
 Learned judge said that "a person as long as
he/she is a Malay and by definition under
Article 160(2) a Malay, the said person cannot
renounce his/her religion at all. A Malay
under Article 160(2) remains in the Islamic
faith until his or her dying day.
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18.  Pahang Non-Islamic Religions (Control of
Propagation Amongst Muslim) Enactment of
1989, the accused was sentenced to 20 days
imprisonment and fine of RM1500 on the ground
of forcing a Muslim woman to convert to
Hinduism.
 The accused gave permission for her to live at his
house together with his wife. During her stay at
the accused house, there were series of quarrels,
which subsequently resulted in an assault. The
victim was also forced to convert to Hinduism.
She was also not given a chance to perform
prayers.
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19. 19

20.  The Court acknowledges that either husband or wife
has the right to convert a child of the marriage to
Islam. The word ‘parent’ in art. 12(4) of the FC, which
states that the religion of a person under the age of
18 shall be decided by his parent or guardian, means
a single parent. Hence, the conversion of the elder
son to Islam by the husband under the Selangor
Enactment did not violate the Constitution.
 Also, reliance could not be placed on s. 5 of the
Guardianship of Infants Act 1961, which provides for
equality of parental right since s. 1(3) of the same Act
has prohibited the application of the Act to such
persons like the husband, who had become a Muslim.
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21.  That being so, Article 8 of the Constitution is
not violated as the right for the parent to
convert the child to Islam applies in a
situation where the converting spouse is the
wife as in Nedunchelian’s case.
 The court referred to the judgment in
Shamala’s case (the Court does not rule that
the conversion of an infant to Islam is null
and void.)
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22.  The Court viewed that the word ‘parent’ is framed in the
singular.
 The Court agreed to the contention that the four children,
being below 18 years of age and statutorily prohibited
from electing the religion of their choice were merely
following the religion of their mother who had converted
to Islam. That was permissible and did not in any way
offend the provision of Article 12(4) of the Constitution.
 Art. 12(4) of the FC, states that the religion of a person
under the age of 18 shall be decided by his parent or
guardian, means a single parent.
 Further, s. 2(1) of the Islamic Family Law Enactment 1990
(Johor) conferred the Shari‘ah court jurisdiction over the
four children. Case authorities too have repeatedly
stressed and established that the High Court in its civil
jurisdiction cannot challenge an order of the Syariah Court.
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24. 24

25. 25

26. 26

27. The educational instructions must be voluntary
not otherwise
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31. 31

32. 32

33. 33

34. 34

35. 35

36. Within 2 years the land must be acquired if not
the order will cease to have effect.
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37. Courts are not prevented to look into the matter
if the private land are taken for public purposes.
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38.  Bila semua jlnkan tggjwb masing2, semua
hak akan dipenuhi
 Ape perlu hak dituntut lagi?
 Kalu hak d tuntut, makna ada tugas yang
belum ditunaikan
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39.  Mkat akan binasa jika sibuk menuntut hak
 Semua yg tuntut hak dan tiada yg menjlnkan
tggjwb – natijahnya kehancuran
 Gagal memahami kebaikan n kebenaran
 Eg ade mata tapi tidak melihat dengan betul
 Ade telinga tapi tidak mendengar dgn betul
 Ini petunjuk pd nilai dan akhlak seseorg
 Org pekak – hilang fungsi dgr sbb tak dgr dgn
betul bukak sbb gegedang pecah
 Tak peduli benar atau tak
 Kalu dgr pun tp tak ikut
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40.  Bisu – mrk berckp tak selari dgn benar
 Manusia diberi akal and pancaindera– tp mcm da mati
 Menybbkan mrk jadi buta hati
 tidak menggunakn potensi diri dgn cara betul2
bermakna
 Mrk alpa
 Sekurang-kurangnya haiwan ade keperluan secara
natural walau no tggjwb – no panduan agama
 Secara instinct haiwan cari yg baik and hindar yg
bahaya – eg kura2 – apa guna kulit dia – tumbuhan
and haiwan bole berubah warna ikut persekitaran nak
mengabui musuh
 Berbeza dgn manusia tolak kebaikan and kebenaran
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41.  Agama tekan tggjwb – tunai tggjwb dgn
automatik hak diri dan org lain tertunai
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