There is a certain mercy in the building code. It asks no awkward questions about the soul. It concerns itself with setbacks and sewers, with parking bays and the angle of a fire escape, and it applies its arithmetic with magnificent indifference to whether the building in question is a noodle shop, a clinic, or a house of God.

This is, on the whole, a good thing. A society that lets its planners keep to drains tends to sleep more soundly than one that lets them adjudicate the hereafter.

Which brings us, by a short walk, to Selangor.

Late last year the state government approved a set of planning guidelines for community facilities. Among the dry tables of land ratios and access roads sat a section on non-Muslim houses of worship — temples, churches, gurdwaras and the like. The document arrived without fanfare. It surfaced in May, when a legislator read out some of its clauses and found them less than soothing.

The state has since pressed pause, convened a committee, and announced that it is “open to reviewing” the standards. One generally is, once the neighbours have noticed.

So: what does the document actually say, and why should a citizen who has never built so much as a garden shed spare it a thought?

WHAT IS ON THE PAGE?

Three things are reported across the mainstream press and not seriously disputed by the state.

First, a new non-Muslim house of worship may not exceed 72 feet — about 21.9 metres — from the ground to its highest point.

Second, such a building may not be sited in a commercial zone.

Third, an existing building in a commercial zone may not be converted into one.

The state’s explanation, offered through the Menteri Besar’s office, is that all this flows from ordinary planning concerns: traffic, parking, the long-suffering residents of crowded districts. The rules, it stresses, bite only on new developments and leave existing congregations undisturbed. It has further pointed out that hundreds of plots for non-Muslim worship have been approved over the years — a fair point, and one worth keeping in view before reaching for stronger words.

It should be said plainly, because it is easily lost in the heat: there is no suggestion here that anyone set out to wound.

A planner worried about a coach disgorging two hundred worshippers onto a service road at six on a Friday evening is worried about a real thing.

The question is not motive.

The question is whether the instrument — a height cap that applies to one set of buildings and not their neighbours — does what a planning instrument is allowed to do.

THE ADMINISTRATIVE SHIELD

The state’s position has a respectable foundation, and fairness requires building it before knocking at it.

Under the Federal Constitution, land, local government and town planning belong to the states. They sit in the Ninth Schedule’s State List, and the Town and Country Planning Act 1976 hands the authorities a generous discretion over how high, how dense, and how near the road a thing may be built.

When a council sets a height limit it trespasses on no one’s rights; it is doing the ordinary, faintly tedious work of keeping a city from falling over itself. Height caps are not exotic. Every skyline you have ever admired is, in part, a list of things that were not allowed to be built.

So had Selangor announced that no building of any kind in a given zone may exceed 72 feet, there would be no essay to write. The difficulty is not that the state regulated height. The difficulty is whose height it singled out.

THE CONSTITUTIONAL COURTESY

A constitution is the document that tells a government what it may not do even when it is quite sure it is right.

Malaysia’s says as much in plain terms: under Article 4 it is the supreme law, and any law inconsistent with it is void to the extent of the inconsistency. Planning guidelines are not exempt merely because they wear the modest dress of administration. A rule does not escape the Constitution by being dull.

Two articles do the work, and a third sets the tone.

The third is Article 3, which names Islam the religion of the Federation while promising, in the same breath, that other religions may be practised “in peace and harmony.” Those two halves are not rivals; they are a single sentence and a single bargain.

Nothing in what follows questions the first half. To ask that a temple be measured by the same neutral tape as a shopping mall is not to diminish the mosque. It is to honour the second half — and a Muslim reader has precisely the same stake in it, for a state that can bend the ruler for one faith can bend it for another, and rarely warns you which way it will lean next.

Then Article 8, which guarantees equality before the law and forbids discrimination against citizens on the ground of religion — not only in the law itself, but in the administration of any law.

A planning manual is the administration of a law.

And Article 11, which guarantees every person the right to practise his religion and every religious group the right to establish and maintain its institutions.

Those rights are not unlimited; they yield to general laws on public order, public health and morality.

But one struggles to see which of the three a temple roof menaces at 73 feet that it leaves untroubled at 71. Public order is seldom disturbed by altitude.

The constitutional question is therefore narrow and unembarrassing: is the differential treatment tied to a genuine planning purpose, or to something else wearing a planning purpose’s coat?

WHAT A COURT WOULD ACTUALLY ASK

Suppose the matter reached the High Court. The challenger need not prove ill will. He need only show that the rule is one no reasonable authority, properly applying its mind to planning, could have made — what lawyers, after an old English case about a cinema, call Wednesbury unreasonableness. A height limit justified by soil, traffic or fire safety survives that test comfortably.

A height limit justified by anything else begins to struggle, because it has quietly stopped being about engineering. As Raja Azlan Shah memorably put it in Sri Lempah Enterprise (1979), every legal power has legal limits; the alternative is dictatorship, however genteel its manners.

And here Malaysian law has moved closer to home than one might expect. In Sunrise Garden (2023) the Federal Court struck down planning guidelines — not a statute, merely guidelines — because a committee had issued them without statutory authority and used them to bend a gazetted plan it was bound to follow. A planning approval built on an invalid guideline, the Court held, is itself invalid.

The lesson is tidy: a guideline is not a magic word. It does not lift its author above the law it is supposed to serve. In the same year, in the Taman Rimba Kiara appeals, the Court quashed a development order that strayed from the city’s structure plan, confirming that a gazetted plan has the force of law and is not to be departed from at will.

Behind these run the larger decisions.

In Indira Gandhi (2018) the Federal Court confirmed that the power of judicial review is part of the basic structure of the Constitution and cannot be spirited away; an official who acts beyond his authority acts in vain, and the courts will say so.

In Nik Elin (2024) the Court struck down state provisions that wandered into ground the Constitution had reserved elsewhere, holding that not even religious conviction lets a body exceed its constitutional brief.

Neither case was about zoning. Both stand for one modest proposition with an obvious application: the form a power takes — statute, enactment, or a handsomely bound planning manual — does not exempt it from the Constitution’s reach.

WHERE THIS LEAVES US

The Selangor guidelines are, for now, suspended — enforced by no one, defended by the state, and circled by a committee.

That is an honourable place to pause and a poor place to stop. The way out is not complicated, and it asks nothing of any faith but patience.

Make the document public; a rule that binds the citizen ought to be readable by the citizen.

Tie every height and siting limit to a reason a surveyor would recognise — load, access, density, safety — and apply it to all comparable buildings without first inquiring after their theology.

Keep the consultation going, the committee being a sensible instinct rather than a grudging one.

And leave the courthouse door ajar, because the point of judicial review is not to overrule the planners but to remind them, gently, that they are planners.

A city’s skyline is a quiet sort of confession

It tells you, in steel and shadow, what a society thought worth protecting and what it thought could be safely trimmed.

Selangor’s planners have the chance to ensure the confession reads well — a skyline in which every spire and dome and minaret rises to the limit of good engineering and not one foot less.

The Constitution does not ask them to love every faith equally.

It asks only that they reach for the same tape measure each time.

That is not a heavy burden.

It is, in truth, the lightest thing in the world — provided one has nothing to hide.

∞§∞

This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Jon McCallon of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. Advocate, editor and sceptic together made one essay better than any could alone. The argument, the views, and the errors remain the author’s.

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