FUNDAMENTAL

LIBERTIES
NUR AMALINA BINTI MUHAMAD
012012110222
SITI NURLIYANA BINTI AZIZAN
012012110221
OVERVIEW
According to Dr Shad S Faruq, there are 4 categories
of restriction on fundamental liberties in the Federal
Constitution namely:
O Restrictions may be imposed by ordinary
legislation enacted under the authority of the
constitutional provision conferring the right
O Fundamental rights may be curtailed by legislation
against subversion.
O Legislation to combat an emergency may suspend
all fundamental rights except freedom of religion
O Constitutional amendments may be enacted to
curtail or abolish a right guaranteed by the basic
law


1. Restrictions by ordinary legislation enacted under the
authority of the constitutional provision conferring the right

O An examination of the constitutional provisions
would disclose that there are two types of rights
namely absolute rights and qualified rights.
Absolute rights are those without restriction or
qualification. Qualified rights refer to the
provisions concerned permit laws to curtail the
exercise of such rights under certain conditions.
Take for instance, freedom from slavery is an
absolute rights guaranteed by the Federal
Constitution. In the other hand, freedom of
speech is a qualified right.




2. Fundamental rights curtailed by legislation against
subversion.


O Powers against subversion under Article 149
Federal Constitution has curtailed the practical
operation of fundamental rights. This provision
also introduced the broad notions of national
security into Malaysia. Legislations enacted
under Article 149 may be inconsistent with
liberty of the person (Article 5); freedom of
movement (Article 9); freedom of speech,
assembly and association (Article 10) and rights
to property (Article 13) and yet remain
constitutionally valid.

3. Legislation to combat an emergency may suspend
all fundamental rights except freedom of religion

O Article 150 of the Federal Constitution gives
extraordinary powers to the Executive to act
when a State of Emergency is declared. Any
Act enacted under Article 150 need not
comply with all fundamental liberties
except related to religion (Article 150(6)(a))
and continues in force indefinitely until
parliament otherwise determines, whether
or not the circumstances giving rise to the
emergency have terminated.

4. Constitutional amendments may be enacted
to curtail or abolish a right guaranteed by the basic
law
O The constitutional guarantees of
fundamental liberties are also not
entrenched in that they are protected from
the amending powers of Parliament. It is
technically possible under Article 159 of
Federal Constitution for fundamental
liberty provisions to be altered, restricted
or even done away with by two-third-
majority vote in a constitutional
amendment.

Judicial interpretation on
the Fundamental Liberties
O As the Federal Constitution with a chapter
on fundamental liberties, the judiciary has
been given the vital role of reconciling the
conflicting demands between the
fundamental liberties of the citizens and
responsibilities of the State. Violation of
the fundamental liberties enshrined in the
Federal Constitution can be remedied in
the Courts through writ of habeas corpus,
mandamus, certiorari and others.

Article 5 Right to Life and
Liberty
O Article 5 enshrines a number of basic fundamental human rights:

Life in Art 5 (1) covers the right to live in a reasonably healthy and
pollution free environment, and the right to continue employment in
public or private service, subject to removal for good cause by resort to a
fair procedure. Personal Liberty means a right not to be subjected to
unlawful arrest, imprisonment or physical coercion.

O Government of Malaysia v Loh Wai Kong[1979] 2 MLJ 33
O Che Ani bin Itam v Public Prosecutor [1984] 1 MLJ 113
O PP v Lau Kee Ho [1983] 1MLJ 157, [198] 1 MLJ 110
O Kam Teck Soon v Timbalan Menteri Dalam Negeri , Malaysia &
Ors [2003] 1 CLJ 225, [2003] 1 MLJ 321.
O Attorney- General, Malaysia v Chiow Thiam Guan [1983] 1 MLJ 50
O Public Prosecutor v Yee Kim Seng [1983] 1 MLJ 252.
O Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64


Article 6 No Slavery

O Article 6 provides that no person may be
held in slavery. All forms of forced labour
are prohibited, but federal law, such as the
National Service Act 1952, may provide for
compulsory service for national purposes. It
is expressly provided that work incidental
to serving a sentence of imprisonment
imposed by a court of law is not forced
labour.

Article 7 No Retrospective Criminal Laws or Increases
in Punishment and no Repetition of Criminal Trials.

O Rationale of the protection:
Liyanage v The Queen [1967] AC 259
It was observed that it is unfair to punish a person for
doing something which he could not have known
during the commission.
Applicable to criminal proceedings:
Loh Kooi Choon v Government of Malaysia [1977]
2 MLJ 187
It was held that art. 7 (1) has two parts:
Protection from retrospective creation of offences
and
Protection from retrospective increase in the
punishment for existing

Article 8 Equality

O Clause 2 states: Except as expressly authorised by this
Constitution, there shall be no discrimination against
citizens on the ground only of religion, race, descent,
gender or place of birth 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 acquisition,
holding or disposition of property or the establishing or
carrying on of any trade, business, profession, vocation or
employment.
O The exceptions expressly allowed under the Constitution
includes the affirmative actions taken to protect the
special position for the Malays of Peninsular Malaysia and
the indigenous people of Sabah and Sarawak (collectively,
Bumiputras) under Article 153

Article 9 - Prohibition of banishment and
freedom of movement.

O In article 9 (1) & (2), Prohibition of banishment, are meant for
Malaysian citizen. It is clearly stated. Those who is not Malaysian
citizen does not entitle to this clauses. This had raise many
citizenship controversy. When there is a case or complaint that is
being heard or filed under this article, citizenship of the applicant
will be review first. We can see this in the case of Tan Kheng Long
[1958] 3 MC 205. Rigby J held that a banishment order was
conclusive proof of the applicants lack of citizenship. This
decision regards whatever protection there exists under article
9(1) and has not been followed in later cases.
O In Re Hoon Tye Wan [1964] MLJ 90, we can see that the court
reverse the government decision to expel the applicants on the
ground that the applicants, being citizens by operation of law,
could not be subjected to the banishment ordinance 1959 (art 79).
The same goes to the case of Kung Aik v PP [1957] 2 MLJ 174.

Article 10 - Freedom of speech,
assembly and association

O Three important fundamental liberties are put
together in one article. These are among the most
controversial fundamental liberties that is talk about
around the world. Freedoms of speech are usual
being view wrongly. People thing saying whatever
they want is right. No it is not. While we think we
are practicing our right, we might abuse others right.
Whatever freedom we attain we need limits. People
with wrong attention violate this freedom. They
make thing seems legit to attack other people with
words for their personal benefit. Raja Azlan Shah J
in PP v Ooi Kee Saik [1971] 2 MLJ 108 said that
freedom of speech is subject to limitation in order to
secure the broader interest of the community.

Article 11 - Freedom of
religion

O This article is very controversial. Especially in a
multicultural country. It sparks a lot of racial and religion
issues and all this issue are very intense. Although this
article gives freedom, there are still restrictions. In article
3(1), the practice of religion must not disturb peace and
harmony. In article 11(4), state law may restrict the
propagation of any religious doctrine among Muslims.
And there is more restriction. Among the controversial
case of article 11 are the case of Halimatussaadiah v PSC
[1992] 1 MLJ 513. In this case, a muslim lady in government
employment insisted on wearing purdah to office. The
court held that optional or non mandatory practice like
wearing purdah is not protected under article 11.
O Other controversial cases are Che Omar Che Soh v PP and
Meor Atiqulrahman Ishak v Fatimah Bte Sihi.

Article 12 - Rights in respect
of education
O Everywhere around the world trying to make
education part of their country fundamental liberty.
However, it is not easy. Financially and practically,
making education part of the human right are still
facing struggle around the world. This article is not
very popular because it does not cause a lot of
controversial issue or phenomena since everyone in
our country get free at least primary and secondary
school education. For a country that is still
developing, we manage to produce a lot of high
educated people. Therefore this issue is not very hot
in Malaysia. However, there are still cases that
brought up this article. For example, the case of
Merdeka University v Government [1981] 2 MLJ 356.

Article 13 - Rights to
property

O Property here means anything that can be own by a person.
Corporal or non corporal, movable or immovable, tangible and
non tangible. This includes copyright, patent and trade mark. In
Adong Bin Kuwau v Kerajaan Johor [1997] 1 MLJ 158, the court
interpreted the concept of property broadly to cover real as well as
personal property, the subject matter itself as well as interests and
valuable rights like possession and enjoyment attached to it.
O This provision of statute not only covers the citizen but also the
non citizen of Malaysia as long as the property happens to be in
Malaysia. Usually, this article are being use to protect personal
property from being use as compensation in court. When company
is bankrupt, and there is not enough money to cover all the debt,
the court will seek for personal property. This article will be use as
defense to protect those personal property. Besides that, there are
also cases about land that involve this article. For example, the
case of Kerajaan Negeri Selangor v Sagong Tasi [2005] 6 MLJ 289.