2. Article 13 (1) provides that ‘no person shall be
deprived of property save in accordance with law’.
Article 13 (2) requires that ‘no law shall provide
for the compulsory acquisition or use of property
without adequate compensation’.
The constitutional impact of these clauses
depends on the meaning and scope of the term
‘person’, ‘property’, ‘in accordance with law’,
‘acquisition’, ‘use’ & ‘adequate compensation’.

3. Person: Includes all persons, whether natural or
artificial including companies, partnership,
businesses, club, societies, political, parties, NGOs,
universities & other entities.
Property: Covers all forms (with some exceptions)
i. corporal – material things like lands & houses
ii. incorporeal rights – right of way & right to redeem
mortgage property
iii.movable – chattels –door & electric fan, chairs, tv.
iv.immovable – land & buildings
v. tangible – money, furniture & land.
vi.intangible – copyright, patent & trade mark.

4. Property: The interpretation of property includes
i. real & personal property, interests & valuable rights
like possessions & enjoyment : Adong bin Kuwau
[1997]
ii. ownership of ancestral land (partial recognition):
Section 65 of Sabah Land Ordinance 1996 &
Naung Felix [1999]
iii.customary land: National Land Code (Penang &
Malacca Titles) 1963
Property: court rejected that ‘goodwill’: Selangor
Pilot [1975] & lease: Stations Hotel [1977] as within
the meaning of property.

5. Property: Orang Asli reserves?
i. Aboriginal People’s Act 1954 failed to give a
complete ownership of ancestral land to Orang Asli.
ii. In 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. The clearing was done for construction of a
dam by the state authority. The court took a wide
interpretation of the proprietary rights under art 13 &
held that
a. property includes both real & personal property
b. property may signify either the subject matter itself/ interests valuable
rights attached to it &
c. property may include certain rights such as possession & enjoyment.

6. Property: Orang Asli reserves?
i. Aboriginal People’s Act 1954 failed to give a
complete ownership of ancestral land to Orang
Asli.
ii. Adong bin Kuwau [1997] The court also
distinguished between land and what is above
the land. The plaintiff had rights to live off the
land but no right to the land itself. The building of
the dam was held to have denied the aborigines
their rights to enjoy the forest produce & the state
authority was in breach of the provision under art
13.

7. Property: Orang Asli reserves?
iii. However in Sagong Tasi [2002] the learned judge
regarded the Orang Asli of Kampung Bukit Tampoi,
Dengkil as customary owners of their traditional
territory, have native titles, have a proprietary interest
& have the right to use & derive profit from the land.
Their rights were protected by the Constitution, Art
13(1). In this case, 7 Temuan Orang Asli sued the Federal
& Selangor State Government, the UEM company & the
M’sian Highway Authority for loss of Orang Asli land &
dwellings when their land was acquired to build the KLNilai Highway. The court held that the government had a fiduciary
duty towards the Orang Asli and this was breached when the
acquisition of their land was undertaken without adequate notice &
without compensation under the Land Acquisition Act.

8. Property: Squatters?
i. Under the land laws, a squatter on a public / private
land is a trespasser who is liable to criminal
prosecution & civil suit.
ii. If the squatter plants crops on the land & the crops
are ripe for plucking, is the squatter entitled to any
compensation?
iii.Islamic concept of ihya al-mawat permits a squatter,
who revives dead public land, to receive an
equitable interest.
iv. In Sidek Haji Muhammad [1982] the appellants, all squatters had
opened up large tracks of jungle to grow crops. Promises were
made by the relevant authority. Some squatters received the land &
some were treated as squatters. Art 8 was not argued. Unequal
treatment under the law.

9. In accordance with law: The sanctity of property is
protected against executive arbitrariness:
i. Failure of executive to serve the statutory notice of
intention to acquire to the occupier & resulted in
occupier failure to appear at the hearing for the award
was taken into consideration by the court: Lai Tai
[1960]
ii. Executive acts causing deprivation of property may be
challenged on the ground that they were not ‘in
accordance with law’: S Kulasingam [1982] & Philip
Hoalin [1974]
iii.The protection of Art 13(1) avails only against the
executive & not against the legislature: Philip Haolin

10. In accordance with law: Law refers to the will of
legislature. Law is lex (enacted law) & not jus
(justice) or recht (right). A law within the jurisdiction
is valid even if it is unreasonable.
In S Kulasingam [1982] it was held that under the
Land Acquisition Act 1960 there is no right to a preacquisition hearing despite the demands of the
rules of natural justice.
In exercise of its legal powers Parliament has
enacted several laws to destroy, deprive, acquire,
require/ regulate private property: Dangerous Drugs
(Forfeiture of Property) Act 1988, Income Tax Act 1967,
Land Acquisition Act 1960 & Danaharta Nasional Berhad
Act 1998.

11. Protection Against Deprivation of Property: Subject
to regulation & deprivation ‘in accordance to law’ in
many forms –compulsory acquisition, requisition,
regulation, destruction, confiscation, imposition of
taxes & fines, nationalisation of businesses, police
power to enter & search premises & seize goods.
Article 13(1) : The protection under art 13(1) are:
i. Protection for citizens & non-citizens, natural & artificial persons
ii. Whether the action amounted to ‘deprivation’ is judicially
examinable.
iii. Whether the interest involved comes within the juristic concept of
‘property’ is open to discussion.
iv. Whether the law involved was valid or not is always reviewable as
the Constitution is supreme.
v. Whatever the manner of deprivation of property, the executive
must base its actions on the law – all safeguards available to
property owners must be followed.

12. Protection Against Deprivation of Property:
Adequate compensation : Art 13(2) & Land
Acquisition Act 1960 provide detailed procedures
for assessment of compensation.
The court have adopted the test of ‘fair market
value’ which refers to the price that an owner willing
& not obliged to sell might reasonably expect to
obtain from a willing purchaser as provided under
the 1st Schedule of the Land Acquisition Act.
In Hock Lim Estate [1980] the safest guide to what
fair compensation should be is the evidence of
recent sales of similar lands in the vicinity.

13. Protection Against Deprivation of Property:
Adequate compensation : Adequate compensation
means fair compensation?
In Adong bin Kuwau [1997] the court noted that the
plaintiff have suffered:
i. Deprivation of heritage land
ii. Deprivation of freedom of inhabitation or movement
under Article 9(2) of the FC
iii. Deprivation of produce of the forest
iv. Deprivation of future living for themselves & their
immediate family, and
v. Deprivation of future living for their descendants
In this view the court held 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
& regenerate…’. RM 26.5 million was ordered as compensation.

14. Protection Against Deprivation of Property:
Time limits : delay in giving compensation. Delay did
not vitiate (reduce the effect) the compulsory order: Tan
Book Bak [1983].
Compensation hearing? ‘all convenient speed’. A
seven-year delay was unreasonable.
Public purpose: courts are not prevented from
examining whether the acquiring authority has
misconstrued its statutory powers/ whether bad faith
has been established.
Post-acquisition hearing: Under the Land
Acquisition Act there is a right to a post-acquisition
hearing in the quantum of compensation. An
interested party is to make reference to the High
Court within 6 months of the date of the award.

15. ISLAMIC STATE ?
Art 3(1) of the FC: Islam is the religion of the
federation.
Schedule 9, List II, Paragraph 1:State Legislatures
are permitted to legislate for the application of Islamic
laws to persons professing the religion of Islam in a
variety of areas including personal & family law,
succession, marriage, adoption, gifts, trusts, zakat &
mosques.
State legislatures are authorised to create & punish
offences by Muslim via Syariah courts. Syariah Courts are
established by State law & are independent of civil courts:
Art 121 (1A).

16. ISLAMIC STATE DEBATE
The United Malay National Organisation (UMNO)
claimed that Malaysia is already an Islamic State & no
constitutional amendments are needed.
The Parti Islam SeMalaysia (PAS) argues that the
Malaysia’s Constitution provides a secular foundation
– part of their argument is that the criminal offences
are not tried & sentenced according to Syariah laws.
The problem is compounded by the fact that there is
no ideal or prototype secular or Islamic State that one
could hold up as a shining model or paradigm of one
or the other.

17. FEDERAL CONSTITUTION’S SECULAR FEATURES
Secular history: Historical evidence in the Reid
Commission papers that the country was meant to be
secular & the intention in making Islam the official
religion of the Federation was primarily for ceremonial
purposes. Before, the legal system of the Malays,
shows a fascinating actions & reaction between Hindu
law, Muslim law & Malay indigenous tradition.
Case law: Che Omar Che Soh [1988]: Islam is not the
basic law of the land & Art 3 did not limit the power of
Parliament to legislate on Islamic matters. It applies only to
Muslims & only in areas outlined in Item I of List II of the
Ninth Schedule.

18. FEDERAL CONSTITUTION’S SECULAR FEATURES
Adat: One must also note the very significant
influence of Malay adat (custom) on Malay-Muslim
personal laws. In some states like Negeri 9, adat
displaces Agama in some areas of family law. An
example on the matter of inheritance which allows
larger portion of the property given to the women.
Article 4(1) & constitutional supremacy: Under Art
4(1) the Constitution & not the syariah is the supreme
law of the federation. Any law passed after Merdeka
Day which is inconsistent with the Constitution shall, to
the extent of the inconsistency, be void.

19. FEDERAL CONSTITUTION’S SECULAR FEATURES
Article 162(6): Under Art 162(6) & (7) any pre-Merdeka
law which is inconsistent with the Constitution, may be
amended, adapted or repealed by the courts to make in fall
in line with the Constitution.
Definition of law: Art 160(2) the Constitution, which
defines ‘law’, does not mention the syariah as part of the
definition of law. The term ‘law’ includes written law,
common law, & custom/usage.
Article 3(4): Clearly stated in art 3(4) that nothing in this
Article derogates from any provision of the Constitution.
Any provisions of law cannot be invalidated on the sole
ground that it is unIslamic.

20. FEDERAL CONSTITUTION’S SECULAR FEATURES
Higher status of secular authorities: Syariah
authorities are appointed by State Governments & can
be dismissed by them. Except for those areas in which
the syariah is allowed to operate, the law of the land is
enacted, expounded & administered by secular
officials.
Senior federal posts: Islam is not a prerequisite for
citizenship or for occupying the post of Prime
Ministers. Members of the cabinet, legislature,
judiciary, public services & the Commission under the
Constitution are not required to be of the Muslim faith.

21. THEOCRACY ~ Definition
a. Literally means rule by God.
b. In political science the term has come to mean
either:
i. the temporal ruler is subjected to the final direction of
the theological head because the spiritual power is
deemed to be higher than the temporal & the
temporal is judged by the spiritual. Iran has such a
constitutional rule.
ii. The law of God is the supreme law of the land. The
divine law is expounded & administered by pious
men as God’s agents on earth. Saudi Arabia & the

22. ISLAMIC FEATURES IN THE CONSTITUTION
The significant implications of the Art 3(1) Islam is the
religion of federation are:
Secularism rejected: The implication is that M’sia is
not a full-fledged secular State. Government
support for the religion of Islam is permitted.
Education: Islamic education & way of life can be
promoted by the State for the uplifting of Muslims.
Art 12(2) provides that it shall be lawful for the
Federation/ a State to establish/ maintain Islamic
institutions & provide instruction in the religion of
Islam to Muslims.

23. ISLAMIC FEATURES IN THE CONSTITUTION
Religious institutions: Taxpayers’ money can be
utilised to promote Islamic institutions & to build
mosques & other Islamic places of worship & to
keep them under the control of State authorities.
Syariah Courts & Article 121(1A) : After 1988, the
Syariah Courts have equal constitutional status
with the civil courts.
Art 121 (1A) provides that the High Courts ‘shall
have no jurisdiction in respect of any matter
within jurisdiction of the Syariah courts’.

24. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121(1A) : However,
the introduction of Art 121(1A) did not clarify a
number of things. They are:
a. Power to determine disputes: Who has the
power to determine whether a matter is within
or outside the jurisdiction of the Syariah
courts? If there is a difference of opinion
between the civil & Syariah courts whose
decision will prevail?

25. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121 (1A) :
a. Power to determine disputes:
i. In Tongiah Jumali [2004] a Muslim at birth, had
converted to Christianity & married a non-Muslim. The
issue was whether her conversion out of Islam was valid
& who should determine that issue? The Johor State
Enactment had provisions regarding conversion into
Islam but was silent on the issue of conversion out of
Islam. The High Court, adopting the ‘implied power
approach’, held that the jurisdiction of the Syariah court
to deal with conversions out of Islam although not
expressly provided in the State Enactment may be read
into them by implication derived from the provisions

26. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121 (1A) :
a. Power to determine disputes:
ii. In Norlela Mohamad Habibullah [2004] the parties had
contracted a Muslim marriage abroad & divorced under
civil law abroad. Neither the marriage not the divorce
was registered under the Muslim laws of Selangor.
When the issue of custody of the infant child came up,
the plaintiff obtained a civil High Court order. The
respondent challenged the right of the High Court to
issue such order in the light of Art 121 (1A). It was held
that the Selangor Islamic Family Law Enactment did not
apply to the unregistered marriage & the unregistered
divorce. Syariah court has no jurisdiction unlike civil

27. ISLAMIC FEATURES IN THE CONSTITUTION
b. One party is a non-Muslim: Where a case should go if one
party is a Muslim & the other a non-Muslim?
In Saravanan a/l Thangathoray [2007] the couple was married
under civil law in 2001 & had 2 infant children. In 2006 the
husband converted himself & his infant son to Islam
without the wife’s knowledge & consent & ex parte
injunction to restrain the husband from converting either
child & commencing or continuing with any proceeding in
any Syariah Court with regard to the marriage or the
children. It was held she had no jurisdiction to grant an injunction
against a court not subordinate to the High Court. On appeal to the
Court of Appeal, the majority expressed inability to grant the injunction
sought because the matter was within the jurisdiction of the Syariah
Court. The Federal Court held that ‘a non-Muslim marriage did not
automatically dissolve upon one of the party’s conversion to Islam’.

28. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121 (1A) :
c. Mixed issues : Where the case should go to if the
issue is mixed & involves elements of both Syariah
& civil law? In Islamic banking cases vigorous
arguments have been submitted that the High
Court should not exercise jurisdiction.
d. Fundamental rights/federal-state power: What if a
Syariah-related law or decision involves a grave
constitutional law question about fundamental
rights / federal-state division of power?

29. ISLAMIC FEATURES IN THE CONSTITUTION
d. Fundamental rights/federal-state power:
In Priyathaseny [2003] The plaintiff was born a Malay &
a Muslim. She renounced Islam, adopted Hinduism,
changed her name, married an Indian. She gave birth
to 2 children. She was arrested & charged for 2
offences –i. insulting Islam by her act of conversion &
ii. of cohabitation outside of lawful Muslim wedlock
with a non-Muslim. The High Court held that the core
issue was whether the plaintiff was still a Muslim
despite her alleged conversion & this issue was for the
Syariah Courts. The High Court should not abdicate its
responsibility to interpret the FC.

30. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121 (1A) :
Since 1988, the civil courts have generally shown great
reluctance & restraint in any matter where there is
the slightest whiff of an Islamic religious issue.
Barring some exceptions they have generally hidden
behind Art 121 (1A) to give way to the Syariah courts
& to adroitly evade or avoid constitutional issues.
The conflict can be resolved either through judicial
interpretation or through legislative guidance. The
civil courts have significantly failed in this area. A
legislative initiative is, therefore, necessary to clarify
issues arising under Art 121 (1A).

31. ISLAMIC FEATURES IN THE CONSTITUTION
Syariah Courts & Article 121 (1A) :
e. Civil remedies: Sometimes the remedy being
prayed for is unavailable in the Syariah courts.
In Azizah bte Shaik Ismail [2004] there was a
custody dispute between the natural mother & her
sister over an infant child. The natural mother applied
to the civil High Court for the writ of habeas corpus.
The Federal Court, in following the subject matter
approach, refused habeas corpus. The subject matter
was in the exclusive jurisdiction of the Syariah Court
even if the remedy was not.