Federal Constitution &

Fundamental Liberties

Lecture 2

Federal Constitution

Part II: Contain 9 provisions on various aspects of

fundamental liberties.
Refer to the rights that are considered very
important and basic for both the spiritual and
physical development of human being, either as an
individual or a member of society.
Those rights are not absolute but subject to some
limitations or restrictions.
The situation may arise when Parliament enacts
laws that in conflict with fundamental rights in
Constitution.

Cont.

The Courts/Judiciary face the issue of balancing

public interest and individual interest Need for
balanced freedoms.
If Malaysian citizens feel that their rights have
been breached by the law enacted in Parliament,
they can sue Government in court.
Courts will interpret the law based on case laws
decided previously and their understanding of
Constitution and Acts.
Laws made by Parliament are technically limited
by and considered subordinate to Constitution.

Art. 5: Liberty of Person

Art. 5(1): No person shall be deprived of his life or

personal liberty save in accordance with law.
This provision is correspond with most legal
instruments on human rights.
Art. 3 Universal Declaration of Human Rights
1948: Everyone has the right of life, liberty and
security of person.
The law mentioned means any law passed by
parliament, whether such law is moral or
otherwise.

Cont.

being unlawfully

Art. 5(2): A person

detained may
complaint to the court and the court shall inquire into
the complaint and order him to be produced before the
court and release him.
This right known as the right to habeas corpus.
This right is available even in cases of detention under
emergency or subversion laws.
The burden of prove is on the detainee i.e. the person
under detention to prove that his detention is illegal.
The detaining authority also has a duty to prove the
legality of the detention, but it can be discharged by
simply producing the order of the detention.

Cont.

Art. 5(3): The right of an arrested person:

(i) To be informed of the grounds of his arrest; and
(ii) The right to legal representation.

The grounds of arrest must be supplied as soon as

may be depending on the facts of the case.
Oral communication would be sufficient but made
it clear that although such may not in detail
enough must be made known to him. Loh Kooi
Choon v Government of Malaysia [1977] 2 MLJ 187

Ooi Ah Phua -v- Officer-in-charge

Criminal Investigation,
Kedah/Perlis(1975) 2 MLJ 198

Yang Amat Arif Sufian (Lord President) in his judgment:

With respect, I agree that the right of an arrested person to

consult his lawyer begins from the moment of arrest, but I
am of the opinion that that right cannot be exercised
immediately after arrest. A balance must be struck between
the right of the arrested person to consult his lawyer on the
one hand and on the other hand the duty of the police to
protect the public from wrongdoers by apprehending them
and collecting whatever evidence exists against them.

In short, this decision allowed the police the deny the

arrested persons constitutionally guaranteed right whilst
during police detention.

Cont.

Art. 5(4): The right of an arrested person to be

produced before a magistrate within 24 hours.
This procedure seeks to ensure that the detainee
has not been subject to cruelty.
The production must not be delayed unreasonably
and the detainee cannot be further locked up
without the magistrates authority.
For non-citizens held under immigration, the
period is not 24 hours but 14 days.

Art 6: Slavery and Forced

Labour Prohibited

Art. 6(1): No person shall be held in slavery.

Art. 6(2): All forms of forced labour are prohibited.
Exceptions:
Those made under the law passed by Parliament
in conjunction with the national service; or
Work incidental with imprisonment imposed by
the court.

Art. 7: Protection Against

Retrospective Criminal Laws and
Repeated Trials

Art. 7(1) No one should be punished for something

that was legal at the time of its commission.
Without this prohibition, the state may criminalize
something that was permissive at the time of its
commission and it is open to abuse and dangerous to
the liberty of citizens.
This Art. 7(1) provides 2 safeguards:
Parliament cannot create a new offence and give it
retrospective effect;
The increase for the punishment for a penalty cannot be
done respectively.

The law must be prospective in their operation.

PP v Mohamed Ismail [1984] 2 MLJ 219

The court
the new
sentence
trafficking

was asked by the prosecution to apply

law which put the mandatory death
as the only punishment for drug
under s. 39B Dangerous Drug Act 1952.

Held: The court refuse to do so as the increase for

the punishment was done after the commission of
the offence.

Limitations

1. The word punishment only applies to criminal

punishments, not to civil liabilities Loh Koi Choon v
Government of Malaysia [1977] 2 MLJ 187, 190 & 193.
2. Prohibition for retrospective laws is meant for
substantive laws but not for procedural laws Lim Sing
Hiaw v PP [1965] 1 MLJ 85.
3. Art. 7(1) may be breached by an emergency
legislation Teh Cheng Poh v PP [1979] 1 MLJ 50
(Emergency Essential Powers Act 1979 is a law that
was backdated to 1957)

Cont.

Art. 7(2) No person should be placed under the perils

of penalties more than once on the same occasion,
based on the same facts.
This is known as double jeopardy.
Zakaria Abdul Rahman v Ketua Polis Negara, Malaysia
& Anor 2001 3 MLJ 385
Held: Although the charges against the Plaintiff in two
disciplinary proceedings were made under different
provisions, their substance was in respect of the same
conduct and thus put him under double jeopardy.

Art. 8: Right to Equality

This right is available to everyone, irrespective

citizens or otherwise.
Art. 8(1) All persons are equal before the law
and entitled to the equal protection of the law.
This right is not absolute.

Limitations

Art. 8 has expressly exempted various kind of

discrimination:
The provisions under personal law;
The
provisions
restricting
employment
in
establishments established by certain religious group;
The provisions to protect the well-being of aborigines;
The provisions prescribing residence in appointment or
election for state offices;
Provisions in the state constitution which has already
existed before 1957;
The provisions for the enlistment in the Royal Malay
Regiment.

Cont.

Art. 8 is not exhaustive and has to be read

together with other provisions.
Art. 8(2) Excepts as expressly authorised by
this Constitution which in itself implies that
other provisions may sustain discrimination or
inequality.
Public Prosecutor v Khong Teng Khen [1976] 2 MLJ
166
Held: The provisions of equality did not mean that
the law could not categorize people and treated
them differently. What was important was that

Public Prosecutor v Tengku Mahmood

Iskandar & Anor [1973] 1 MLJ 128

A crown prince was convicted in Session Court on a

charges of causing hurt. The court ordered the R to
enter into a bond of $300 with one surety for a
period of one year. Appeal against sentence.
Held: It is conflicted with the provisions of Art. 8.
The sentence must reflect the gravity of the
offence. Every citizen, irrespective of his official or
social status, is under the same responsibility for
every act done without legal justification.

Art. 9: Freedom of Movement

Art. 9(1) No citizens shall be banished or excluded

from the Federation.
Art. 9(2) Every citizens has the right to move
freely throughout the federation and reside in any
part thereof.
This right is not absolute.
The limitations on the ground of public order, public
health, punishment of offenders and laws in
pursuance to the immigration powers given to
Sabah and Sarawak.

Assa Singh v Menteri Besar (MB)Johor

(1969) 2 MLJ 30 [Fed Ct]

Johor MB ordered applicant to be arrested and detained

under the Restricted Residence Enactment (RRE) 1933.
The RRE is silent as regards the four rights guaranteed
by art. 5 to a person arrested under the Enactment.
Held: Only acts of law inconsistent with the
Constitution that were passed after independence
would be void, while Art. 162 excepted legislation
passed prior to independence. Silence of the
Enactment regarding the four rights does not make it
contrary to the constitution. Even if the Enactment is
contrary to the Constitution, the Enactment is not void.

Art. 10: Freedom of

Speech, Assembly and
Association

This Art. stands at the center of the democratic

process as it codifies basic rights common in all
democracies.
Without this rights, it is difficult and impossible to
have a functioning and healthy democracy.
It would preserved peaceful and non-violent way
of changing government.
These rights are only available to citizens.

Art. 10(1)(a): Freedom of

Speech and Expression

It also include the right for press freedom or information.

Limitations:
However, there are various law which restricted or taken
away these rights:

Sedition Act 1948

Printing Presses and Publication Act 1984
Official Secret Act 1972
Internal Security Act 1960 (may be used against a journalist
working for newspaper)

These freedom of speech and expression is not absolute.

Cont.

Art. 10(4) For the interest of Malaysian security

and public order, the Parliament may pass laws
prohibiting the questioning of four sensitive
matters:
a)
b)
c)
d)

Part III Constitution citizenship

Art 152 Status of Malay language
Art 153 Special position of Malays & natives from
Sabah & Sarawak
Art 181 Rulers Sovereignty

E.g. Sedition Act

Sedition = conduct/ speech inciting public disorder or
rebellion, agitation against established order or state

Public Prosecutor v Oh Keng Seng

(1977) 2 MLJ 206

Respondent charged with uttering seditious words

in speech. Words highlighted Malay-Chinese issues.
Held: Respondent went well beyond limits of free
speech in Constitution; not legitimate criticism
permissible under s. 3(2) of Sedition Act. Relevant
passages in speech had seditious content which
could cause hatred/ contempt/excite disaffection
against Government and promote ill-will between
ethnic groups in Malaysia.

Mark Koding v Public Prosecutor

(1982) 2 MLJ 120

Accused Mark Koding (member of parliament); made

speech in Parliament to demand closure of Chinese &
Tamil schools. Right of free speech in Parliament given
by s. 3 & 8 of Houses of Parliament (Privileges and
Powers) Ordinance & by Article 63(2) of Constitution.
Amendment in Art. 63(4) allows Sedition Act or any
law passed by Parliament to limit free speech.
Held: Right of MPs to free speech in Art 63(2) validly
limited by Art 63(4); not unconstitutional. Right to free
speech in Parliament not part of fundamental rules of
natural justice.

Art. 10(1)(b): Freedom of

Assembly

Art. 10(1)(b) Freedom of assembly and without arms.

Limitation:
Parliament may enact the law based on the interest of the
security of the Federation or public order. e.g.:
S. 27 Police Act 1967 Gives the power to regulate assembly
to the police.
S141 Penal Code: Unlawful assembly of 5 or more having
unlawful object.
The court has a role to ensure that the correct balance between
the need to maintain order and freedom of assembly prevails.

Madhavan Nair v Government of

Malaysia [1975] 2 MLJ 264

The organizers applied for license to hold political

rally and wanted to discuss the compulsory pass in
Malay language in the MCE exams. But this is the
very thing the police told them not to do. The
organizers challenged and claimed that the police
conditions breached Art 10.
Held: The condition imposed by police was
constitutional, not in breach of Art 10. Police had
right under s27 Police Act.

Cheang Beng Poh & Ors v Pendakwa

Raya [1984] 2 MLJ 225

A group of lawyers had been charged under the

Police Act 1967.
Held: Any public meeting, even if it is spontaneous,
is unlawful if it takes place without police permit.
Intention was irrelevant.
It is apparently contradict with Art. 10(1)(b) and
restrict something which was not mentioned either
by the Constitution or the statute itself.

Chai Choon Hon v Ketua Polis Daerah,

Kampar & Govt of Malaysia (1986) 2
MLJ 203

Appellant applied for license on behalf of DAP to

organization solidarity dinner & lion dance in public
place. Police issued permit with 2 conditions:
restricted to 7 speakers within 5pm-1130pm; no
political issues.
Held: The restriction on the number of speakers
imposed by the police was unreasonable and
violated the right to freedom of speech.

Art. 10(1)(c): Freedom of Association

Art. 10(1)(c) - All citizens have right to form

association.
The right to form associations regulated by Societies
Act 1966 (doesnt cover registered companies, trade
unions).
Society = association of seven/more persons.
Malaysian Bar & Anor v Government of Malaysia [1986]
2 MLJ 225
Held: Art. 10(1)(c) does not give any right to any citizen
to manage association but just the right to form it.

Limitations

Laws regulating societies in Malaysia basically give

government absolute power to approve or reject registration
of association as well as control of finance, organization and
function.
E.g.: Societies Act 1966, Trade Unions Act 1959, Universities
and University Colleges Act 1971.
DUN Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ
697
Held: Provision in a state constitution which effectively sought
to prevent members of the state assembly from switching
parties was held to be unconstitutional as it amount to
denying the right under Art. 10(1)(c).

Art. 11: Freedom of

Religion

Art. 3 Islam is the religion of the Federation

but other religions may be practiced in peace &
harmony.
Malaysia is not an Islamic state but secular
state.
Art. 11 Every person has the right freedom of
religion, which consisted of the right to:
Profess;
Practice; and
propagate ones religion

This rights are available to persons, citizens and

Cont.

Art. 11(2) Right not to be compelled to pay

any tax that may be used, wholly or in part, for
purposes of religion other than his own.
Art. 11(3) Every religious group has right to:
manage its own religious affairs;
establish and maintain institutions for religious
and charitable purposes; and
acquire, own, hold and administer property in
accordance with law.

Limitations

Art. 11(4) Prohibition of propagating religions

other than Islam to muslims.
The Constitution does not provide similar
provision for the non-muslims.
Art. 11(5) No act may contrary to any general
law relating to public order, public health and
morality.
Thus, the court does not seem to have
interpreted the provision in a manner that is
favourable to Islam and the muslims.

Minister of Home Affairs, Malaysia v

Jamaluddin bin Othman
[1989] 1 MLJ 368 (HC) and 418 (SC)

under

Respondent detained
ISA (Internal Security
Act), alleged plan to propagate Christianity among
Muslims giving rise to tension and affect national
security. R participated in seminars and meetings,
alleged he converted 6 Malays to Christianity.
Held: Grounds for detention not sufficient to come
within ISA, which is to prevent subversive actions
that threaten public order & security. Participation in
seminars & conversion (even if true) not a threat to
security. ISA detention against Art 11 (religious
freedom) which must be given effect unless actions
exceed normal.

Hajah Halimatussadiah bte Hj

Kamaruddin v Public Services
Commission, Malaysia & Anor [1994] 3
MLJ 61

Muslim civil servant wore purdah to work, which

was against government circular fired. Appellant
challenged dismissal, claiming circular contravened
Art 11.
Held: The government s circular banning such an
attire for the public servants was within the scope
of Art. 11(5) which provides the limitations for the
right to freedom of religion.

Cont.

Constitution doesnt allow any act contrary to any

general law relating to public order, public health
or morality. Circular doesnt stop her from
practicing her religion; wearing of purdah had no
relation to her right to practice her religion.
Opinion of WP (Wilayah Persekutuan) mufti Islam
doesnt prohibit/require women to wear purdah.
Dismissal properly done & valid; appellant had
been given opportunity to be heard.

Meor Atiqulrahman & Ors v

Fatimah bte Sihi & Ors
[2000] 5 MLJ 375

Plaintiffs are students in public primary school,

expelled by headmistress for defying instructions
not to wear serban to school. Plaintiffs argued
freedom of religion.
Held: Wearing of serban not essential as sunat
prayers, of little significance, not part of Islamic
prophetic teaching.
School Regulations 1997 in so far as it prohibits the
students from wearing turban/serban as part of the
school uniform during school hours does not
contravene the provision of Article 11(1) of the
Federal
Constitution
and
therefore
is
not

Titular Roman Catholic Archibishop of

KL vs Minister of Home Affairs &
Malaysia Government

Ministry of Home Affairs allowed permit for the

Herald for BM (Bahasa Melayu) publication with
condition not to use the word Allah. Appellant
argued restriction is against Art. 10 , 11 & 12; Also
Art 3 doesnt prevent Appellant from using the
word Allah.
Held: There was no constitutional right for nonMuslims to use the word "Allah. The term "Allah"
must be exclusive to Islam or it could cause public
disorder.

Art. 12: Rights in Respect

of Education

Art. 12(1) Discrimination based on religion,

race, descent and place of birth should not be
allowed in public educational institutions.
Such grounds must also not be used to deny
financial aids for education, either public or private
educational institutions.
These rights are only available to citizens.
Art. 12(2) Every religious group has the right to
establish and maintain educational institutions for
its children in its own religion.

Cont.

Art. 12(3) No person shall be required to

receive instruction in or take part in any ceremony
or act of worship in religion other than his own.
Art. 12(4) The religion of a person under 18
shall be decided by his parent or guardian.
These protections are obviously connected to the
rights to freedom of religion.

Art. 13: Rights to

Property

Art. 13(1): No person shall be deprived of

property save in accordance with law.
The word person above including artificial
person, not just human being or natural person.
Thus, person may include organization or any
other legal personalities.
Art. 13(2): No law shall provide for the
compulsory acquisition or use of property without
adequate compensation.