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Rights, Privileges and Liberties (II) - Constitutional Protection of…
Rights, Privileges and Liberties (II) - Constitutional Protection of Fundamental Rights
Principles
General Principles
- Fundamental rights and liberties are guaranteed by FC Art 5-13
- Fundamental rights must be distinguished from constitutional rights, they overlap but not the same
- Concept of fundamental liberty in Part II must involve State action
Status of International Conventions:
- Malaysia joined UN Convention on Rights of Child (CRC) and Convention on Elimination of all forms of Discrimination Against Women (CEDAW)
- Child Act 2001 passed on Art 8(2) and amended to include "gender"
- But Malaysia (like the UK) is a "dualist" state they don't enforce it on domestic law unless specifically incorporated
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Protection
Art 5 - Protection of Life and Liberty:
- Provides that no person will deprived of life / liberty save in accordance with law
- Art 5(1) allows possibility of Parliament providing for death penalty by law so that it won't be unconstitutional
Tan Tek Seng v Suruhanjaya Perkihdmatan Pendidikan (1996):
- Held in CA per Gopal Sri Ram JCA: "life" doesn't refer to mere existence but "incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life"
- Includes right to seek and be engaged in lawful employment, and to "live in reasonable healthy and pollution free environment"
Prismatic Interpretation
Sivarasa Rasiah v Badan Peguam Malaysia (2010):
- Concept of rights 'submerged within a given concept" or related sub-rights become clear when court interprets part II rights/liberties through the 'prismatic' approach
PP v Lau Kee Hoo (1983):
- Mandatory death penalty per S57(1) of Internal Security Act 1960 was challenged as being contrary to Art 5(1) - right to life of FC
- Held in FC per Suffian LP: dismissed all challenges and held that mandatory death penalty is constitutional where provided for duly enacted federal legislation
- Also held that Parliament and not judiciary to determine proprietary of death penalty in tackling certain crimes
Right to Liberty enshrined in FC:
- Art 5(1) right to not be deprived of liberty save in accordance to law
- Art 5(2) power of HC judge to order release of person unlawfully detained
- Art 5(3) right of an arrested person to be informed of grounds of arrest and be allowed to consult legal practitioners of his choice
- Art 5(40 right of an arrested person to produce before a magistrate within 24 hours not including journey time
- Art 5(3) and 5(4) won't apply to aliens
The Writ of Habeas Corpus:
- Art 5(2) power of HC judge to order release of person unlawfully detained
- Order of HC directing the production and release of an unlawfully detained person called writ of habeas corpus (Latin: "you shall have the body")
- Codified in S25 Schedule of the Courts and Judicature Act 1964 read together with Art 5(2) and 121(1) of FC
Uthayakumar a/l Ponnusamy v Menteri Keselamatan Dalam Negeri (2009):
- Held: where legal detention has been established as legal, lawful or proper, the court can't issue a writ of habeas corpus on whatever grounds including denial of legal preresentation / denial of proper medication
Art 6 - Prohibition of Slavery and Forced Labour:
- Art 6(1) provides that no person will be held in slavery
- Art 6(1) provides that all forms of forced labour is prohibited but parliament can by law provide compulsory service for national purpose
Art 7 - Confers protection against:
- 7(1) retrospective criminal laws
- 7(2) repeated trials for the same offence
Loh Kooi Choon v Government of Malaysia (1977):
- SC confirmed that Art 7(1) protection extends to criminal laws only i.e. retrospective civil laws not affected
Art 7(1) - PP v Mohamed Ismail (1984):
- Accused found guilty of trafficking dangerous drugs per S39B Dangerous Drugs Act 1952
- HC held: if its material date was date of conviction, will have inconsistency with Art 7(1) FC as D will have greater punishment than what law intended at time offence was committed
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Equality
Art 8 - Equality before the law:
- right to equality before the law is enshrined in Art 8(1) but subject to provisions of Art 8(2)
- Art 8(1): all persons equal before the law and entitled to equal protection of the law
- Art 8(2): except expressly authorised by FC, there will 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/employment under a public authority or in any administration of law etc
- A breach in Art 8 is actionable in JR against the government body/officer - Metrobus Nationwide Sdn Bhd v Lembaga Pelesenan Kenderaan Perdagangan Semenanjung Malaysia (2012)
- The words "or gender" were included into Art 8(2) by way of constitutional amendment in 2001 after Malaysia ratified the CEDAW.
- But Art 8(2) was held not to apply to a private employer in Beatrice Fernandez v Sistem Penerbangan Malaysia (2005)
- Equality before the law forbids discrimination between persons who are essentially in similar circumstances. It does not prohibit the different treatment of unequals
- With varying physical/social/economic differences in society, principle of equality means only that equals must be treated alike
- The same law can treat different people differently if they are in different circumstances
Art 9 - Prohibition on Banishment and Freedom of Movement:
- Art 9(1) provides that no citizen shall be bahnished/excluded from the Federation. Thus citizens have constitutional right to return/re-entry to the territory of the Federation
Freedom
Freedom of Speech, Assembly & Association
- There has been restrictive and pro-executive interpretation of freedoms
PP v Ooi Kee Saik (1971):
- HC affirmed that restrictions are needed as part of Art 10(1) for absolute protection of these rights.
- Government has right to preserve public peace and order, and prohibition of sedition is a legitimate aim to be pursued.
- If there are allegations that Government is misusing such laws to keep itself in power then judgement on that will be for Parliament and people not courts
Necessary laws on freedom of speech and expression:
- Sedition Act 1948
- Printing Presses and Publication Act 1948
- Penal Code, SS504-505
- Official Secrets Act 1972
- Film Censorship Act 2002
- Common law on defamation
Art 10(1)(b) - Freedom of Assembly:
- Regulated b Peaceful Assembly Act 2012
- Replaced certain provisions of the Police Act 1967 previously needing police permit for any gathering of 3 persons or more
Nik Nazmi bin Nik Ahmad v PP (2014):
- CA struck down S9(5) of the PAA which made it a criminal offence to hold peaceful assembly without complying with requirement of giving 10 days notice to OCPD of the district where assembly is to be held
PP v Yuneswaran (2015):
- CA departed from this decision, holding that S9(5) PAA is constitutional as "restriction" of freedom of assembly is permitted under Art 10(2)(b)
Art 10(1)(c) - Freedom of Association:
- In Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh (1992): provision of Kelantan State Constitution which states for Assemblymen to cease becoming members of the Assembly upon leaving their political parties was contray to Art 10(1) and thus unconstitutionall
"Parliament may by law impose..."
- in PP v Azmi bin Sharom (2015):
- C challenged the constitutionality of the Sedition Act 1948 on the basis that only Parliament may restrict the freedom of speech under Art 10(2)
Art 11 - Freedom of Religion:
- Art 11: provides that every person shall have the right to profess and practice his religion, and subject to Art 11(4) to propagate it
Art 11: General Principles:
- Right to propogate is subject to restrictions imposed under Art 11(4)
Lina Joy v Majlis Agama Islam Wiliayah Persekutuan (2007):
- The act of exiting fro a religion is not itself a religion, nor can it be equated with 'professing' or 'practicing' a religion
Minister for Home Affairs v Jamaluddin bin Othman (1989):
- The effect of Art 11(5) is to disallow any acts of 'professing' or 'practicing' one's religion which goes against general laws on public order, public health and morality
Application of Art 11(1):
- Situations where a 'Muslim' person is seeking the Art 11(1) freedom to profess and practice a religion other than Islam can be divided into 2 categories per Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor (2021):
- Where a person who previously is a Muslim seeking to leave the faith (renounce Islam):
- Is the case of apostasy: The person must comply with relevant Islamic laws on apostasy and be subject to jurisdiction of the Syariah Courts
- When a person (not a Muslim ab initio) and the core issue is whether there was any point at which the person was a Muslim:
- Its a question of constitutional/legal interpretation and the civil courts (not the Syariah Courts) to have jurisdiction
Rights
Art 13(1) - Right to Property:
- No person shall be deprived of property save in accordance to law, and Art 13(2) that compulsory acquisition / use of property must be accompanied with adequate compensation
Chong Chung Moi v The Government of the State of Sabah (2007):
- The right to property, while important has been tampered by the philosophy of collective ownership that allows the state to acquire an individual's property if its for the overall good of the community to serve a public purpose
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah, Hulu Selangor (2017):
- Any such acquisition by the state that is not in accordance with the law will contravene Art 13 and be declared unconstitutional
Aborginal Rights:
- rights over land is a form of common law right (customary title) which if/when established over a particular land, courts will recognise and protect
- Kerajaan Negeri Selangor v Sagong bin Tasi (2005)
- Adong bin Kuwau & Ors v Kerajaan Negeri Selangor & Anor (1997)
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Role of Suhakam
Role of Suhakam:
- promote awareness of human rights and undertake research by conducting programmes, seminars + workshops
- advise government/relevant authorities of complaints against such authorities and recommend government for appropriate measures taken
- study and veridy any infringement of human rights in accordance with provisions of this Act
- visit places of detention in accordance with procedures as prescribed by laws relating to places of detention and make necessary recommendations
- issue public statements on human rights as and when necessary
Composition of SUHAKAM:
- Composition and method of appointment of Commissioners are provided for in SS5 and 6 of the Act
- Establishment of SUHAKAM reflects as least a formal commitment to protection of fundamental liberties on part of government
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