ASMA BINTI ABD HAMID (A146419)
Question 1 :
H and W, a Buddhist couple converted to Islam in 1990. They had a daughter D age 17
years. Upon conversion H and W forced D to convert to Islam. D refuse on the ground that
they had the freedom of religion and wished to retain the religion of the parents before
their conversion.
(i)
Advise H and W as to their constitutional rights.
In this particular case, H and W has forced their daughter age 17 to convert to Islam. The issues
arised is whether H and W have the right to decide the religion for their daughter, D since their
daughter is underage and whether D has a rights in freedom of religion as guaranteed under
Article 11(1) of Federal Constitution.
Freedom of religion in Malaysia is protected by Article 11 of the Federal Constitution which
grants to all individuals protection in matters of conscience. Article 11(1) says that “Every
person has the right to profess and practice his religion and, subject to Clause (4), to propagate
it”. Every person here refers to all persons whether it’s a citizen or non-citizen. This clause
shows that citizens or non-citizens have the right to profess, practice and propagate their religion.
However, it can be said that his right is not absolute because this is article is still restricted under
article 11(5). Under Article 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 while Article 12(4) stated
that for the purpose of Clause (3) the religion of a person under the age of 18 years shall be
decided by his parent or guardian. Clause 4 explains that a children which is still below 18,
cannot decide their own religion.
Since D didn’t reach the age of majority yet, H and W have a say to decide their
daughter’s religion. This is as illustrated in the case of Teoh Eng Huat v Kadhi Pasir Mas. It is a
case of a girl aged 17 years old 8 months wanted to convert to Islam, and it is held by court that
prior attaining the age of majorty,18 years old, minor has to conform to parents’ consent in
regard with conversion of religious faith. Supreme Court further held that parent has the right to
decide the choice of issues affecting an infant’s life until he reaches the age of majority which is
18 years old under civil law.
Also based on the case of Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama
Islam Sabah, an infant’s father converted to Islam and, got his infant child converted to Islam
without the consent of the mother.
High Court held that the father and mother have equal right over the person and property of the
infant. The term “parent” in Article 12(4) of the Constitution must necessarily mean both father
and mother of both are living. To allow just one parent to choose the religion of the infant would
invariable mean depriving the other of the constitutional right under Article 12(4). The two-year
infant was not of the age of “baligh” and was unable to utter and understand in intelligible
Arabic the Affirmation of Faith.
Section 68 of Guardianship of Infants Ordinance (Sabah) (as amended) this act mentions that a
person who is not a Muslim may convert to Islam if he attains the age of “baligh” according to
Islamic law and provided that if a person is below eighteen years of age, consent shall be
obtained from the parents or his guardian. Section 69 spells out the formal requirements for a
conversion, which includes the utterance of the affirmation of faith or “shahadah” made at the
person’s free will. In addition, in the case of Indira Gandhi A/P Mutho v Pengarah Jabatan
Agama Islam, Perak, the court gave the similar judgement that both parents consent are required
to convert a child’s religion.
Therefore, H and W have the legal rights to choose and decide the religion of their infant
daughter, D based on the reasons above. Their acts are constitutional and D doesn’t have any
right to freedom of religion due to exemption in Article 12(3) and (4).
(ii)
Suppose H and W had remained Buddhists, and D wanted to convert to Islam.
Can she do it, even if her parents H and W objected it? Advise D.
A clear restriction stated in Article 12(3) and (4) that a minor cannot change their religion
without permission of their parents. So Article 11, freedom of religion are excluded in this
particular situation. In Re Susie Teoh, the court held that a person under the age of 18 does not
has the rights to determine her own religion and it is the parents or guardian have the right to
choose the minor’s religion as provided under Article 12(3) and Article 12(4). So D, cannot
change her religion without her parent consent until she reach the age of majority.
Question 5 :
When can the government acquire property and subject to that conditions? To what extent
have the Federal Constitution and Land Acquisition act accorded protection against
deprivation of private property by the government?
Individual right to property is guaranteed under Article 13 of the FC. However, this
constitutional right is subject to the government’s right to acquire land for adequate
compensation. Article 13(1) provides that “no person shall be deprived of property save in
accordance with law”, while Article 13(2) states that “no law shall provide for the compulsory
use or acquisition of property without adequate compensation.”
The purpose of the land acquisition must fall within the categories laid down in Section 3(1)
Land Acquisition Act, which states:
(1) The State Authority may acquire any land which is needed,
(a) for any public purpose,
(b) for an economic development which is deemed to be beneficial to the public of Malaysia, or
(c) for purpose of mining, residential, agricultural, commercial, industrial or recreational
purposes.
The term “public purpose” under S3(1)(a) is not defined in the LAA. In S.Kulasingam & Anor v
Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204 it was held:
“The expression pubic purpose is incapable of a precise definition. It is still best to employ a
simple common sense test, that is, to see whether the purpose serves the general interest of the
community”.
Only a “person interested” as defined in Section 2 LAA can claim for and be paid compensation
in respect of compulsorily acquired land.
Section 2 LAA defines “person interested” to mean every person claiming an interest in
compensation to be made on account of the acquisition of land under the LAA, but does not
include a tenant at will who occupies the property on a month-to-month basis without a tenancy
agreement or without a Lease. In the case of Boon Bak v Governement of Perak [1983], time
limits in giving the compensation was clarified. The High Court held that this delay did not
impair the compulsory acquisition order.
Thus it is clear that the Federal Constitution and the Land Acquisition Act provide
protection against deprivation of private property by the government and that it protects the
people from any deprivation.