Beruflich Dokumente
Kultur Dokumente
1.1 INTRODUCTION
What is constitution? What is the fundamental of liberties? These two things are somehow connected
and are the two most important aspect in Malaysians government both in the past and the present.
Constitution is the fundamental law, written or unwritten, that establishes the character of a
government by defining the basic principles to which a society must conform; by describing the
organization of the government and regulation, distribution, and limitations on the functions of different
government departments; and by prescribing the extent and manner of the exercise of its sovereign
powers. Constitution is also a legislative charter by which a government or group derives its authority
to act. The concept of a constitution dates to the city-states of ancient Greece. The philosopher
Aristotle (384322 b.c.), in his work Politics, analyzed over 150 Greek constitutions. He described a
constitution as creating the frame upon which the government and laws of a society are built.
According to Aristotle in his book, Politics, a constitution may be defined as an organization of offices
in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and
the nature of the end to be pursued by the association and all its members is prescribed. Laws, as
distinct from the frame of the constitution, are the rules by which the magistrates should exercise their
powers, and should watch and check transgressors. Different forms and levels of government may
have constitutions. All 50 states have constitutions, as do many countries including Japan, India,
Canada, and Germany. It is also common for nongovernmental organizations and civic groups to have
constitutions. In its ideal form, a constitution emanates from the consent and will of the people whom it
governs. Besides establishing the institutions of government and the manner in which they function
toward each other and toward the people, a constitution may also set forth the rights of the individual
Fundamental liberties are rights and freedoms that we have as human beings. Some
fundamental liberties are set out in the Constitution. Because these rights and freedoms are set out in
the Constitution, they are said to be guaranteed and cannot be taken away from us unless the
Constitution itself allows it. Fundamental liberties is also a name given to the freedoms that completely
protect the individual from government. Fundamental liberties set limits for government so that it
cannot abuse its power and interfere with the lives of its lives of citizens.
The Federal Constitution of Malaysia is considered as the supreme law in Malaysia. It is actually
formed after the Constitution of the Federation of Malaya. The Constitution of the Federation of Malaya
is the foundation of the Federal Constitution of Malaysia today. It is drafted by Reid Commission that
headed by Lord William Reid in order to formulate a constitution for the preparation of a fully self-
Eventually, the threat of Communist uprising spread through the Malaya throughout the post
Second World War years and 1950s had affected the formulation of The Constitution of the Federation
of Malaya. And yet, the growth of Malay Nationalism had contributed many alternative ideas on the
shape of Malayan nation that may have resulted in shaping a government that is quite different from
the Western country model. Therefore, Reid Commission had sought the viewpoints from several
political parties, non-political organisations and individuals in order to find an appropriate government
structure that only suits for our country. The report of Reid Commission was published in February
1957. In its report, the Commission suggested that the Constitution should protect individuals rights
and ensure a democratic way of living. In order to achieve the objective of democratic and equal
rights, Reid Commission formulate the Constitution by giving significance to four vital features in the
constitution which are federalism, separation of powers, entrenched human rights and constitutional
amendment process.
The Reid Commission attempted to devise the constitution by adapting the British and Indian
constitutional concepts. The Reid Commission tried to strike the balance between the rights and
restrictions after concerning about the situation of Malaya at that moment. Apparently it is not as easy
as we think. The absolute freedom on fundamental liberties as the constitution at British is not given in
the federal constitution in Malaysia. This is mainly because of the multi-racial society and the rebellion
of the communist during the age. In order to remain the public order, the freedom that given is
restricted.
were thus modified, and appear as Part P of the Federal Constitution entitled "Fundamental Liberties".
Article 8 - Equality.
Although the federalism and constitutional monarchy concepts are being adapted, Reid
Commissions report also contained the provisions protecting special rights for the Malays such as
quotas in admission to higher education and the civil service and the official religion of the federation is
Islam. The status of the Malay language is also being recognized and the right to vernacular education
As you seen, the Reid Commission sought the fundamental individual rights as an essential
element for a democratic country. For instance, the guarantees of fundamental liberties of Malaysians
in the Federal Constitution cannot be taken away recklessly. As in Article 10, every single thing that we
say is guaranteed by the freedom of speech and expression within the limits in the constitution. It
allows people to express an opinion on any issue freely without having to fear about outcome.
Obviously the fundamental liberties that had been given in the Federal Constitution are balance in
The Fundamental rights of a person are guaranteed by the Constitution. Since the Fundamental rights
are written in the Federal Constitution, it cannot altered in ordinary way but requires two third majoriy
of the total number of the Legislature. The Fundamental right of a person is not guaranteed by
ordinary law, but by the part II of the Federal Constitution. Some of the liberties are absolute, while
others are subject to the qualification which makes them more illusionary than real. Fundamental
liberties are those freedoms which are, or should be, guaranteed to persons to protect an area of non
interferefrom others, particularly power holder and legal authorities. The acts that impose restrictions
on fundamental liberties are the Internal Security Act 1960, the Universities & Universities Colleges Act
1971, the Police Act 1967, the Presses and Printing Act, the Official Secret Act 1957, and other acts.
Article 6 of the Federal Constitution provides that no person shall be held in slavery. This
article also highlighted that all forms of forced labour are prohibited, but Parliament may by law
provide for compulsory service for national purposes. According to this article, Work or service
law shall not be taken to be forced labour within the meaning of this Article, provided that such
work or service is carried out under the supervision and control of a public authority. Where by
any written law the whole or any part of the functions of any public authority is to be carried on
by another public authority, for the purpose of enabling those functions to be performed the
employees of the first-mentioned public authority shall be bound to serve the second-
mentioned public authority, and their service with the second-mentioned public authority shall
not be taken to be forced labour within the meaning of this Article, and no such employee shall
be entitled to demand any right from either the first-mentioned or the second-mentioned public
authority by reason of the transfer of his employment. It can be concluded that Article 6 of the
Federal Constitution provides that slavery and forced labour are prohibited. In this article , it
was stated that no person shall be held in slavery and all forms of forced labour are prohibited,
but the parliament may by law provides for a public service for national purposes.
.According to this article, all persons are equal before the law and entitled to the equal
protection of the law. This article also cited that Except as expressly authorized by this
Constitution, there shall be no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in the appointment to any office or
employment under a public authority or in the administration of any law relating to the
business, profession, vocation or employment. Apart from that, there shall be no discrimination
in favour of any person on the ground that he is a subject of the Ruler of any State. This Article
also suggested that no public authority shall discriminate against any person on the ground
that he is resident or carrying on business in any part of the Federation outside the jurisdiction
election or appointment to any authority having jurisdiction only in that State or part, or
Basicly this article Article 8 of the Federal Constitution discuss about equality. It was stated
that all person are equal before the law. Everybody must be granted with their rights to be
treated fairly by the law. As in case Rethana v Government Malaysia, it was held that
Rethana suing the SUSCO cannot sue their employers if any accident happens in their
field of work.
Article 10 of the Federal Constitution provides on the Freedom of Speech, Assembly and
Association. It provides that every person has their own right to speech and expressed
their opinion and has peaceful assemblies and associations. The speech, assembly and
associations must be safe and are held without any weapons. However the freedom of
speech is restricted to the speech which might be sensitive to the public interest. As in
case Mahdevan v Public Prosecutor, the licence for the public meeting to discuss the
result of M.C.E Examination and the status of Bahasa Melayu as the national language
have been pulled back, the party appealed and saying that it has contravened their right of
freedom of speech, it was held that the condition on the license of public meeting was not
While article 10(1)(b) gives the right to citizen to assemble peaceably and without
arms. Like under clause (a), this right also subject to clause (2), (3) and (4). Does it
means any kind of assembly and gathering which is done peacefully is lawful or may a
peace assembly be considered unlawful just because there is other law restricts that
assembly? In Chai Choon Hon v Ketua Police Daerah Kampar [1986]2 MLJ 203, the
peaceful assembly was restricted by Police Act 1967. In that case the act restricted on
the number of speakers and the court held that the restriction was void as it was
unreasonable.
disagrees to any government policy? For example what has been done during
BERSIH assembly on 2008 and ANTI PPMSI on 2009. On what basis police has
right to prevent the people from holding such assembly? If the police argued that the
place was not suitable since it was held in a crowded place so is it will be lawful if it
was held in countryside? And if police argued that it will bring harm to the public, on
what extent it may cause since the people bring no weapon. So what law used by
restricted as it against article 10(1)(b) because the Hindraf members when held the
assembly has bad intention and also may cause harm to public as they bring
By looking at the Federal Constitution, Malaysians do have the rights to enjoy the
freedom of speech and expression as stated in the Article 10. However, the freedom is
only qualified in term of national security, public order, ethics or morality as stated in
Article 10 (2). The freedom is restricted and certain issues like the status of national
language, Malays special rights, the status of Islam as national religion and others
that we should not question as stated in the Federal Constitution. This means that we
have the rights to say whatever we like without breaking the rules or regulations that
threaten the society and even causes any public disorder or riot. In general, the
In Malaysia, This part looks at the recommendations in the Reid Commission Report
on the issue to see whether it had laid down sound foundations for the provisions in
the existing constitution. This is necessary to ascertain whether what we have now is
something which reflects those ideas. We will also be able to know whether the
for future reforms and may serve as a good lesson for other countries. Freedom of
It has been observed that the commissions recommendation on this has been vague,
foundations for the protection of the rights in the country, particularly when eights
years before the world saw the adoption of the Universal Declaration of Human Rights
1948. he White Paper, which reviewed the Reid Commission Report, failed to improve
the recommendations on the subject.17 It seems that the Paper gave matters
pertaining to the Conference of Rulers, Islam and Malay privilege more importance
than questions on fundamental liberties. It is quite clear that the reason why the Reid
Commission included the chapter was to satisfy the unspecified and unfounded
commission itself. t appears that the commission were too optimistic about the rights.
hindsight one could say that the commission should have dealt with the issues more
thoroughly. Given that the commission consisted of judges and jurists it is difficult to
understand why they did not impose a condition similar to that on the special position
and expression is not absolute. But while we have no problem of accepting this the
problem with our constitution is that the rights are couched in such a way that it is
placed in the custody of Parliament. This is the impression one gets the moment one
looks at the provision: although the constitution says that every citizen has the right to
freedom and speech and expression it has allowed parliament to impose restrictions
on them. The constitution says, inter alia, that Parliament may by law impose.on
security of the federation or part thereof , friendly relations with other countries, public
incitement to any offence. For the purpose of comparison perhaps one could mention
the First Amendment to the American Constitution which categorically provides, inter
alia, that the "Congress shall make no law abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
basis of the political system; a character that make their institutions symbols of
Other right provided under article 10 is the right to association. This article also seems
not bring much benefit to the citizen since court itself confused on the extent of the
right given to people in association. In the case of Malaysian Bar & Anor v
Government of Malaysia [1986] 2 MLJ 225, Harun J held that article 10(1) (c) does not
give any right to any citizen to manage association but just the right to form it.
The issue comes to mind is who are given this right? Is this right given to all
people regardless their status and age? Can law be biased by giving certain restriction
on particular person only for example in University and University Colleges Act 1971
seems the provision under the Act is unreasonable. Not only that, although article 10
has given right to the citizen to association but in most universities and colleges,
students need to wait for a long time just to form an association. It shows that the right
Those three rights under article 10 are so important since it becomes the basic of the doctrine
of democratic country. From the freedom of speech, assembly and association, the people of
the country may express their opinion on important matters of the country especially what are
related to their rights and obligation. The court should function and use their power to help
people and not just interpret the law in favor of the parliament.
According to Article 11, Every person has the right to profess and practice his religion and,
subject to Clause (4), to propagate it. Beside that no person shall be compelled to pay any tax
the proceeds of which are specially allocated in whole or in part for the purposes of a religion
other than his own. Apart from that, every religious group has the right:
This article also told that State law and in respect of the Federal Territories of Kuala Lumpur
and Lubuan, federal law may control or restrict the propagation of any religious doctrine or
belief among persons professing the religion of Islam. This Article does not authorize any act
contrary to any general law relating to public order, public health or morality.
It can be concluded that Article 11 of the Federal Constitutions stated about the freedom of
Religion. In the Article 11 Clause (1), it was stated that every person can profess and practice
their own religion, subject to Clause (4) to propagate it. Clause (2) stated that no person shall
be compelled to pay money, which the money are fully or only part of it will be used for
religions purposes other than your own religion. Article 10 also stated that every religious
group has the right to establish & maintain institution for their children for the purposes of
religion or charitable purpose. As in case Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam,
it was held that a Sikh man is dead and the question before the court whether the deceased is
still Muslim when he died? His relatives claim that he had prayed at the Sikh temple and
continue to eat pork. But he has registered his name as Muslim and he was engaged to marry
1.4 CONCLUSION
No one will deny the idealism of human rights as they were enriched in the constitution itself. But we
must not be swayed into believing that these rights are ideal for all intents and purposes for all times
and under all circumstances. To be fair, these rights can only be applies in time of peace properity. The
basic principles of human rights which includes the fundamental liberties should be upheld not only by
those who call themselves democratic government but also by those people who claim themselves to
be citizens of a democratic government. It is a two-sided affair, and not a one sided claim.
BIBILIOGRAPHY
1. Federal Constitution of Malaysia. (2010). Petaling Jaya. International Law Book Services.
2. Mohamad Suffian. (2007). An Introduction To The Constitution of Malaysia. Petaling Jaya:
Pacifica Publications.
3. Nik Abdul Rashid. (1977). Erosion of Fundamental Liberties Roghts by Legislation. Kuala
Bhd.