ARTICLE 12
Right of education
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
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
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).
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.
No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
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
RIGHT IN RESPECT OF EDUCATION
Religious Education:
Art 12(2) every religious group has the right to establish & maintain institutions for the education of children in its own religion.
Under Art 3(1) federal & state governments are permitted to establish, maintain /and assist Islamic institutions.
Art 12(3) & Teoh Eng Huat [1986] : Art 12(3) is not violated if a person voluntarily receives instruction in a religion other than his own.
Art 12(4) clarifies that for the purpose of religious instruction ‘the religion of a person under the age of 18 years shall be decided by his parent or guardian’.
TEOH ENG HUAT V KADHI OF PASIR MAS KELANTAN (the Susie Teoh case)
Fact: Susie Teoh was 17 years and 8 months when she became Muslim. Her father Teoh Eng Huat, a Buddhist, could not locate her and he took the Jabatan Agama in Kelantan to court.
He applied for a declaration that, as father and guardian to the infant, he had a right to decide her religion, education, and upbringing and that her conversion to Islam was invalid.
The case was covered by the Guardianship of Infants Act, 1961, Art. 11 (1) (freedom of religion), and Art. 12 (3), (4) (right to education) of the Federal Constitution
Held: The Supreme Court held that “in all the circumstances and in the wider interests of the nation no infant shall have the automatic right to receive instruction relating to any other religion other than (her) own without the parent or guardian’s permission”.
The Supreme Court, however, did not proceed with the declarations sought by Teoh Eng Huat as these were “only of academic interest” as Susie Teoh had reached the age of majority by the time the case was heard in the Supreme Court in 1990.
CHANG AH MEE VS JABATAN HAL EHWAL AGAMA ISLAM, MAJLIS UGAMA ISLAM. SABAH & ORS [2003] 5 MLJ 106.
Chang Ah Mee (the plaintiff) the mother of an infant asked for a declaration that the conversion by the Jabatan Hal Ehwal Agama Islam Majlis Ugama Islam Sabah of her son to a Muslim be declared null and void.
Plaintiff was married to Khoo (father). Unbeknownst to the plaintiff, the father converted to the Islamic faith, and the infant was also converted by the father without her consent
High Court held that:
The FC does not discriminate against the sexes.
The father & mother have equal rights over the person & property of the infant.
The term ‘parent’ in Art 12(4) of the FC must necessarily mean both father & mother if both are living. To allow just one parent to choose the religion of the infant would invariably mean depriving the other of the constitutional right under Art 12 (4).
The plaintiff had a right to custody of her infant which right included the religious education of the infant. That right had been violated by the father when he gave permission for the infant to be converted. There shall be no compulsion in religion which means that the plaintiff through her infant cannot and should be compelled to go to an Islamic religious school.
INDIRA GANDHI A/P MUTHO V PENGARAH JABATAN AGAMA ISLAM PERAK & ORS AND OTHER APPEALS [2018] 1 MLJ 545
Indira, the appellant, married Patmanathan in 1993. Their marriage was registered under the LRA. After nearly 16 years of marriage, Patmanathan converted to Islam on 11 March 2009 and changed his name to Muhammad Riduan.
He left the family home with their youngest child, Prasana shortly thereafter.
Their two elder children, Tevi Darsiny and Karan Dinish, continued to reside with Indira.
Indira discovered sometime in April 2009 that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam of her three children.
Syariah Court had granted custody of the children to Riduan on 3 April 2009.
APPEAL TO THE FEDERAL COURT
The issue is whether the mother and father (if both are surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam could be issued in respect of the child. According to the FC, this issue involves the interpretation of the expression “parent” in Article 12(4) of the Constitution.
The FC cited Articles 12(3) and 12(4) of the Constitution which provide:
“(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.” (Emphasis added)
The FC then referred to the Eleventh Schedule to the Constitution (read together with Article 160(1)) which provides that, in interpreting the Constitution, “words in the singular include the plural and words in the plural include the singular”.
The FC explained that the reason “parent” is used in Article 12(4) is to provide for a situation where the child has only one parent, i.e., a single-parent situation
Where both parents exist, the Eleventh Schedule is to be relied on, that is the plural form of the word, i.e., “parents” is to be used and accordingly, the decision on the religion of a child is to be decided by both parents
Similarly, the right to religious education should be determined by both parents.
NOORLIYANA NASIRAH BT MOHD NOOR V MENETERI PENDIDIKAN ISLAM DAN LAIN-LAIN [2007] 5 MLJ 65
The applicant and family professed the religion of Islam. The applicant was a student and had attended Islamic religious classes in a Chinese primary school (SRJK).
The applicant's father requested that the applicant be exempted from attending the Islamic religious classes in school.
When the applicant's UPSR results were out, it stated 'Perkara Asas Fardhu Ain — Gagal' on the applicant's UPSR result slip.
The applicant, through her father and the representative's friend, had filed this application for judicial review, prayed for certiorari that the statement 'PAFA — Gagal' be deleted from the record and the applicant's UPSR statement of result slip and mandamus that a new statement of result slip without the said statement be issued to the applicant.
The court refused the application to be exempted from attending the Islamic religious class in school & to delete the failing grade for her UPSR examination (she failed to take the subject-Fardhu ‘Ain Basics (PAFA)).
The court based its decision on the premises that:
The applicant as a student who had registered in a public school was bound by the subject syllabus, core subject, and national curriculum system taught in public schools.
The applicant could not dictate what subjects or core subjects she wished to learn and what subjects or core subjects she did not intend to learn …Our educationists, with their experience in dealing with students on the ground, should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society, and later the nation. Certainly, there was a place for everything. Furthermore, there was nothing to prevent them from changing schools e.g., to a 'pondok' school…