You are on page 1of 14

The Court Structure

Saturday, 13 October, 2012 1:42 AM

***- examined before

Chief Justice President

Chief Judge Session Court Judge Magistrate

Chief Judge

High Courts

Subordinate courts

Overview of the above: ***


At the apex of the court system is the Federal Court headed by the Chief Justice. Below the FC is the Court of Appeal which is headed by the president of the Court of Appeal. Below the COA are the 2 High Courts with o-ordinate jurisdiction. They are comprised of the High Court of Malaya (for WM) and High Court of Sabah Sarawak (for EM). The head of the both High Court is the Chief Judge. Below the High Courts are the Subordinate Courts, the highest which is Sessions Courts each of which is headed by a Sessions Court Judge. This is followed by the Magistrates' Courts. Parallel to it is the Juvenile Court. Both former and latter are presided by a Magistrate respectively. In the WM , there a the Penghulu's Court under the MC. They are headed by a Pengulu or the village's headman. In practice, these courts hardly function. There are also the Syariah Courts and the Native Courts. These courts operate only at the State level. The NC only exists in WM and they deal with native rights. SC on the other hand deal with matters pertaining to Islamic Law in the respective states.

Subordinate courts * < = up to (not less than)


a. Penghulu's Court b. Magistrates' Court c. Sessions Court

A. Penghulu's Court
1. 2. 3. 4. 5. 6. Lowest level of the hierarchy Presided by a Penghulu / Village Headman Appointed by State Govt Preceedings are informal Deals with local disputes ; <$50 in value In criminal case, impose fine <$25 ; must inform the criminal's right to elect to be tried under
Malaysian Legal System Page 1

6. In criminal case, impose fine <$25 ; must inform the criminal's right to elect to be tried under the jurisdiction of a Magistrates' Court before the commencement of the trial 7. Appeal against the decision made in this court lies in a First Class Magistrate

B. The Magistrates' Court


1. There are 2 classes of magistrates' court, viz the first class MC and the second class MC both presided by magistrate respectively. a. 2nd class MC The magistrate not required to be qualified in law. Usually a public servant and minor court officers Grants bail and mentioning cases Able to try criminal cases ; max punishment <12months imprisonment; or fine <$1000 or a combination of both Civil cases - jurisdiction to recover a debt / liquidated demand of <$3000 1st class MC Has to be a member of the Judicial and Legal Service Able to try all offences, punishable with a fine and imprisonment <10 yrs Able to pass sentences <5yrs imprisonment; fine <$10,000, whipping <12strokes Civil cases : able to try cases where the value of the subject matter < $25,000 Has the jurisdiction to conduct preliminary enquiries and hold coroners inquest

b.

C. Sessions Court
1. 2. 3. 4. 5. 6. 7. Highest jurisdiction of the Subordinate Courts. Presided by SC judge , appointed by the YDPA on the recommendation of Chief Judge Able to try all criminal offences other than those punishable with death May pass any sentence allowed by the law, other than death sentence Able to try all suits of civil matter in respect of mvaccidents, landlord and tenant, and distress Able to try civil cases tht >$25k, but < $250k Does not have jurisdiction for the following matters:a. Specific performance b. Injunctions c. Rectification / cancellation of instruments d. Matters involving immovable property

High Court
1. 2 types of High court a. High court of Malaya b. High court of Sabah and Sarawak 2. Presided by chief justice 3. Consist of diff division 4. Jurisdiction : a. Original b. Appellate c. Supervisory d. Revisionary A. Original Jurisdiction i. Unlimited criminal and civil powers ii. Most cases, hear cases which cannot be determined by Subordinate Courts iii. Deals cases with drug trafficking and unlawful possession of firearms, ammunition and explosives iv. In practice, it tries mostly disputes in amount > $250,000 v. Also deals with matrimonial and divorce causes, bankruptcy, appointment of guardians and property of infants, vi. Grant, alter or revoke Probate of Wills, Letters of Administration of the Estates of Deceased Persons

Malaysian Legal System Page 2

B. Appellate Jurisdiction i. Hear civil and criminal APPEALS from the subordinate courts (re-hearing) ii. Normaly of subject matter >$250,000, UNLESS cases on a question of law. C. Supervisory Jurisdiction i. To conduct and review the decisions of Subordinate Courts. D. Revisionary Jurisdiction i. In the exercise of its revisionary jurisdiction, if it appears desirable in the interest of justice, may call for the records of any proceding in the Subordinate Courts (civil or criminal cases) at any stage of such proceeding 5. Appeals from the High Court - An appeal can be made to the Court of Appeal and then to the Federal Court i. If the appeal to the COA is on civil matters; subject to restriction : a. If amount or value of subject matter < 250K, leave of the Court of Appeal must first be obtained. b. No appeal may be made : 1) Where the judgment of the original trial was made by consent of the parties; 2) Where the judgment relates only to cost 3) Where the law stipulates the decision of the HC shall be final ii. If further appeal to the FC is on civil matters; it is to be made with the permission of the FC as follows:a. The matter in dispute in the appeal amounts to or is the value of >250K b. The appeal involves directly /indirectly a claim to or in respect of property/civil right of the same amount/value c. From any decisions as to effect any provision of the constitution (including the validity of any written law relating to such provision

The Court of Appeal


1. Act as an appeal chamber 2. Proceedings are usually heard by and disposed by 3 judges. Number of judges may vary as the President see fits. However the number of judges is always uneven 3. Judge of HC may sit as a judge of the COA if the President considers it necessary in the interest of justice after consulting the Chief Judge 4. COA hears and determine any appeal against :i. Any decisions made by the HC in the exercise of its original jurisdiction ii. A decision of the HC in the exercise of it appellate jurisdiction in respect of a criminal matter originally decided by the SC 5. Some exceptions of when Appeal can be made : i. Appeal is not allowed if the subject matter is less than 250k, except with the leave of COA ii. If the judgment of the HC was made by the consent of both parties iii. Judgment relates to cost only iv. If it was expressed the written law is final

The Federal Court


1. Jurisdiction: a. Appellate b. Original c. Referral d. Advisory A. Appellate acquittal - formally certifies the accused is i. FC will hear civil and criminal appeals from decisions of HC free from the charge of an offense, ii. Consist 90-95% of the Court's work iii. Criminal cases appeal may be made by the Public Prosecutor against acquittal.

Malaysian Legal System Page 3

B. Original i. Exercise this jurisdiction over those matters :a. Any questions regarding a law made by a legislature, federal or state is invalid on the ground that it deal with a matter to which it has no power to legislate; (freedom of religion) b. And dispute btwn states and btwn the federation of any states

C. Referral i. Determines constitutional questions ii. Then remits the case back to the original court to be disposed of in accordance with that determination iii. Pending the determination of the case by the FC, the court before may postpone proceedings

D. Advisory i. The FC may give its opinion to His Majesty if referred by the latter concerning the effect of any provision of the Constitution.

Other Courts
Juvenile Courts - Juvenile Courts Act 1947
1. Purpose : to try offences committed by juveniles in an atmosphere different from ordinary courts 2. Principle behind this JC is that these juvenile need care and attention and should be treated with compassion with a view to correcting them 3. May try all offences except those punishable by death 4. Special court and closed to the public

Industrial Court - Industrial Relations Act 1967


1. 2. 3. 4. 5. Deal with matter relating to trade disputes and workman dismissal Set up with the aim to relieve the ordinary courts workload Comprises by a president and 2 panel members (one rep the employer, the other the emee) President must be legally qualified Proceedings are less formal

Advantage of having a court system with a Hierarchy ***


1. It facilitates a system of appeals. The court hierarchy distinguishes between higher and lower courts so that persons who are dissatisfied with the decision of a lower court have an avenue to have the decision reviewed by a higher court. 2. It facilitates the application of the doctrine of binding judicial precedent which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in the application of the law. 3. It facilitates specialization in the judicial process. The higher courts which are presided by more senior and experienced judges handle the more serious criminal offences such as murder, and kidnapping and more serious civil matters where larger sums of money are involved. The lower courts are left to handle the less serious offences and civil disputes involving smaller amounts of money. 4. It results in greater administrative convenience, efficiency and cost effectiveness. The practical effect of a court hierarchy is that it provides for an extensive system of lower courts dispensing justice inexpensively in local areas and superior courts in the main centres.
Importance of system of appeals

Malaysian Legal System Page 4

Sources of Msian Law & Doctrine of Judicial Precedent


Saturday, 13 October, 2012 1:44 AM

MALAYSIAN LAW
Malaysian law is classified into a. Written law b. Unwritten law
A. WRITTEN LAW

i. Written law refers to the law that is contained in a formal document and which has been passed by a person or body that is authorised to do so. ii. In Malaysia, which has a written constitution, written law consists of the Federal and State Constitutions, the legislation passed by Parliament and State Legislative Assemblies as well as subsidiary legislation. iii. Written law comprises of the following:
The Federal Constitution The Federal Constitution is the supreme law of Malaysia. It is a written constitution. It stipulates the powers of the Federal and State Governments and provides for a democratic system of government. It also establishes a constitutional monarchy and entrenches fundamental liberties of the individual. To ensure that the Federal Constitution is not easily amended, a special majority of two-thirds of the total number of members of the legislature is required for an amendment.

The State Constitutions Each of the 13 states of Malaysia has its own State Constitution. These contain provisions pertaining to state matters as provided under the Federal Constitution. The State Constitutions deal largely with land matters, agriculture, forestry, local government and Islamic law. Legislation This comprises the laws passed by Parliament as well as the State Legislative Assemblies. The laws passed by Parliament since 1957 (i.e. after Malayas independence) are called Acts while those passed by the State Legislative Assemblies (except Sabah and Sarawak) are called Enactments. The laws passed in Sabah and Sarawak are called Ordinances. Subsidiary legislation This refers to the rules, regulations, by-laws, orders and other instruments made by a person or body in accordance with the powers delegated to him/it under an enabling legislation. Such legislation is an increasingly important source of law because Parliament and the State Legislatures lack the time and expertise to deal with specific technical details.
B. UNWRITTEN LAW

i. Unwritten law, refers to the law that has not been formally enacted. ii. The unwritten law consists of case law (i.e. decisions of the superior courts which are binding on the lower courts), customary law (i.e. local customs which have been accepted as law by the courts) and applicable principles of English common law and equity. iii. Unwritten law comprises the following: English common law and the rules of equity A very important source of Malaysian law. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained therein. However, the reception of English law and equity are subject to certain general exceptions. In particular, English law may only be applied where (1) there is no local law governing the matter and (2) if it is suitable to the local circumstances.
Judicial precedents
Malaysian Legal System Page 5

Judicial precedents This refers to the law as developed through cases decided in the superior courts. Sometimes referred to as judge-made law, it is another very important source of law. Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases. This generally ensures a fair and uniform application of the law.

Islamic law This is another important source of Malaysian law, particularly in matters relating to marriage, divorce and inheritance among Muslims. It is only applicable to Muslims. Islamic law is administered at State levels by a separate system of courts called the Syariah courts.
Customs This refers to the customs of the local inhabitants which have been accepted as law. It mainly relates to family matters, e.g. marriage, divorce and inheritance. Generally, the customs of Chinese and Indians relating to marriage and divorce are no longer of much importance since the passing of the Law Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among them. However the customary laws of the Malays (also called adat law) and in East Malaysia, native customary law, continue to be important sources of law.

The Doctrine of Judicial Precedent


1. The doctrine of binding judicial precedent is one by which decisions of higher courts are required to be followed by courts, which are lower in the hierarchy of the court structure. 2. Note that the precedent must originate from a court of appropriate rank in the same hierarchy or of a higher rank 3. It is actually the ratio decidendi that binds future courts. The ratio decidendi refers to the rationale or principle of law on which the decision is based. 4. The ratio decidendi must be distinguished from obiter dicta, which refers to opinions or other matters expressed by the judge, which are not directly relevant to the case before him. 5. Obiter dicta are not binding on future decisions. 6. In order to better understand the operation of the doctrine, the hierarchy of the courts must be borne in mind. The Federal Court is the highest court in Malaysia. Below it is the Court of Appeal. Below the Court of Appeal is the High Court. Below the High Court are the lower courts comprising the Sessions Courts, Magistrates Courts and the Penghulus Courts, which are referred to as the Subordinate Courts

OPERATIONS OF THE DOCTRINE :

1. Decisions of the Privy Council (which was formerly the highest court of appeal for Malaysia) given on appeal from Malaysia or from another Commonwealth country, where the law are binding on the Malaysian courts.

Khalid Panjang and others v PP.

2. Decisions of the House of Lords (the highest court of appeal in U.K.) being a part of the common law are binding in Malaysia to the extent permitted under ss.3 and 5 of the Civil Law Act 1956. 3. Decisions of the Federal Court (the highest court in Malaysia) are binding on all the courts below it. In the same way as the House of Lords of England is not bound by its own decisions, the Federal Court is probably not bound by its own decisions.
This has however not been conclusively decided by case law yet.

4. Decisions of the Court of Appeal will be binding on all the courts below it. As this courts position is analogous to the Court of Appeal of England, it is bound by its own previous decisions to the same extent as the latter. It was held in Young v Bristol Aeroplane Co Ltd that the English Court of Appeal (Civil Division) was bound by its own previous decisions as well as those of courts of co-ordinate jurisdiction. However this was subject to three exceptions, viz:
i. Where there are two conflicting decisions, the court may choose to follow either.
Malaysian Legal System Page 6

ii. Where its previous decision (though not expressly overruled by the House of Lords) cannot stand with a later decision of the House of Lords then the Court of Appeal is bound to refuse to follow its own previous decision. iii. Where its own previous decision was given per incurium it is not bound to follow the earlier decision.
In criminal cases the English Court of Appeal (Criminal Division) regarded itself as bound by its own previous decisions in the same way as the Court of Appeal (Civil Division), except where this would cause injustice: R v Taylor

Decisions of the High Court are binding on all subordinate courts, but one High Court judge is not bound to follow the decision of another High Court Judge - Sundralingam v Ramanathan Chettiar Subordinate courts are bound by precedents laid down by the Superior Courts but their own decisions do not bind any court.
ADVANTAGES:

i. It helps to achieve certainty and uniformity in the law. ii. The law developed through the cases is more practical as it is based on actual situations rather than on hypothetical ones. iii. Although judges of the lower court are generally bound by the decisions of the higher courts, there is also a degree of flexibility. For example, a judge may avoid following an earlier precedent if the case was decided per incurium i.e. without taking into account a relevant legal principle or statute. He could also avoid it by distinguishing the precedent from the facts of the present case. This flexibility allows the law to be adapted to the changing needs of society.

Malaysian Legal System Page 7

Legislation
Saturday, 13 October, 2012 1:45 AM

1. Legislation refers to the laws which have been formally passed by the properly elected bodies, i.e. the Parliament (at the Federal level) and the State Legislative Assemblies (at the State level). 2. Delegated legislation (also known as subsidiary legislation) refers to the rules and regulations, which are passed by some person or body under some enabling parent legislation. The Interpretation Act 1967 defines it as any proclamation, rule, regulation, order, bye-law or other instrument made under any Act, Enactment, Ordinance, or other lawful authority and having legislative effect. 3. Types of legislation :Promulgate - To make known (a decree, for example) by public declaration a. Act - Legislation passed by Parliament b. Enactments - Legislation passed by State Legislative Assemblies (with the exception of Sabah and Sarawak, where they are called Ordinances) c. Ordinance - Refers to 3 things :1) Refers to the law promulgated by the Yang Di-Pertuan Agong during state of emergency 2) Laws passed during the period of Malayan Union 3) The laws passed by the Sarawak State Legislative Assembly

LAW MAKING PROCESS

1. The law making process is stipulated in the :a. Federal Constitution b. Standing orders of the Dewan Rakyat (House of Representatives) c. Standing orders of the Dewan Negara (Senate) 2. The initial step in the law making process is to prepare a draft of the proposed legislation called a bill. 3. The bill is then introduced into Parliament. This may be done either in the Dewan Rakyat or the Dewan Negara. However, it is more commonly introduced in the Dewan Rakyat. It will then undergo the following stages:
a. First reading A mere formality. The Minister concerned would only mention the title of the bill and give oral notice as to when the second reading would be moved.

b. Second reading The Minister concerned would explain to the house the purpose of the bill and the main policy issues involved. (By this time they would have been printed and circulated to all members.) Debate on the bill is then carried out but this would be confined to its general principles. c. Committee stage At the completion of the second reading the house will automatically resolve itself into a committee of the whole house. This is the committee stage during which the details of the bill are discussed in a less formal manner and amendments are proposed, if necessary. Sometimes the bill would be considered by a Special Select Committee instead of a committee of the whole house if a motion to that effect is agreed upon by the house. This is an ad hoc committee appointed for a particular purpose. The committee of selection will determine its size and nominate its members.
Malaysian Legal System Page 8

committee of selection will determine its size and nominate its members. d. At the completion of the committee stage the house will resume sitting. The findings of the Committee stage are reported back to the main House so that all the members are aware og what has transpired in the Committee stage. e. Third reading This stage is another formality. The Minister concerned would move a motion that the bill be read a third time and passed. When the motion is accepted the bill is accordingly passed. The bill must then be submitted to the other house (i.e. to the Dewan Negara if the bill originated in the Dewan Rakyat and vice versa) where it would undergo the similar stages of consideration. When the bill has been passed by both Houses of Parliament, it is sent to the Yang di Pertuan Agong for Royal Assent. Upon receiving the Royal Assent the bill becomes law (i.e. Act of Parliament
4. By an amendment to Article 66 of the Federal Constitution which came into force with effect from 20 January 1984, the Yang Pertuan Agung must assent to a bill within 30 days of it being presented to him.

In the case of non-money bills, he may return the bill to the house from which it originated with a statement of the reasons for his objection to the bill. The bill will then be reconsidered by both the houses and if it is passed by them again after such reconsideration, he must give his assent within 30 days of it being re-presented to him, failing which it becomes law as if it had been duly assented to.

DELEGATED LEGISLATION

1. Delegated legislation (also known as subsidiary legislation) defined as the rules and regulations which are passed by some person or body under some enabling parent legislation. 2. Interpretation Act 1967 - any proclamation, rule, regulation, order, bye-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legal effect 3. Types of law: a. Proclamations - made by YDA b. Rules & Regulation - made by ministers c. Orders and Bye-Laws - made by local authorities 4. Advantages & Disadvantages : ADVANTAGES i. Delegated legislation can be passed very quickly and is more flexible. This is because it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, subsidiary legislation can be just as speedily amended or even rescinded to meet the changing needs of society. ii. Delegated legislation deals with the detailed rules necessary to implement the law. As Parliament does not have sufficient time to deal with such minute details, delegated legislation is the more efficient way to fulfil this need. iii. Some matters require the special skill and knowledge of experts in that area. Parliament itself may not have sufficient experts for this purpose. Thus, delegated legislation fulfils this need as well.
Malaysian Legal System Page 9

well.

DISADVANTAGES i. The growth of delegated legislation goes against the doctrine of separation of powers. This is because law is not being passed by persons elected for that purpose (i.e. the legislature). Instead it is being passed by officers of government departments.
ii. Parliament is unable to effectively supervise the making of delegated legislation due to lack of time. As a consequence, many rules and regulations may have been passed without proper consideration of some very important factors.

iii. Too much law is passed through subsidiary legislation without sufficient Parliamentary control. 5. Subsidiary legislative can be controlled by:i. Consultation Prior consultation with relevant advisory bodies and interest groups are quite often required to be had before the finalisation of the subsidiary legislation. Sometimes the parent legislation makes such consultation compulsory. Disregard of this requirement may result in the subsidiary legislation becoming ultra vires and void. ii. Parliamentary Control Parliament may exercise control over subsidiary legislation by repealing the parent legislation or the subsidiary legislation. However this is rarely done. More commonly, the parent legislation will require the rules or regulations made under it to be laid before the legislature. The rules or regulations will become effective if there is no negative resolution against it. Occasionally the parent legislation may require the subsidiary legislation to be subject to an affirmative resolution. In such cases the subsidiary legislation will become effective only when such an affirmative resolution is passed. iii. Judicial Review Where the subsidiary legislation is outside the powers contained in the enabling legislation, the court may declare such legislation as ultra vires the parent legislation and therefore invalid.
iv. Publicity As a general rule the subsidiary legislation must be published in the Gazette. It will become effective only from the date of such publication or on such other date as may be specified.

STATUTORY INTERPRETATION

The courts have evolved a number of rules to assist in the interpretation of a statute, where there is doubt as to the meaning of any part of it; to help the judge arrive at a fair judgment :-

a. The literal rule


Malaysian Legal System Page 10

a. The literal rule This is a rule by which a word or phrase is given its literal or ordinary grammatical meaning. According to this rule, if the words of the statute are in themselves precise and unambiguous they must be expounded in their natural and ordinary sense. This rule is very commonly used and sometimes appears to give a result contrary to the intention of Parliament. The case Fisher v Bell (1961) is a good illustration of the application of this rule. In this case a shopkeeper was charged for offering for sale certain weapons, including flick knives, by displaying these knives in a shop window. The court held, applying the literal rule, that the display was not an offer for sale but merely an invitation to treat. Thus, the shopkeeper was held not guilty. The courts in Malaysia have also adopted this rule. This may be illustrated by the case of Kon Fatt Kiew v PP (1935), where the court held, applying the literal rule, that rubber includes scrap rubber b. The Golden Rule This rule is formed as a result of the inadequacy of the Literal Rule. The application of Literal Rule sometimes would produce and absurd result, then the Golden Rule will apply. The Golden Rule states that words in a statute must be interpreted according to their natural, ordinary and grammatical meaning, but to the extent that such an interpretation does not produce a manifestly absurd result. An illustration can be seen in the case Re Sigsworth. In this case, a son murdered his mother. Under the rules of intestacy and the application of the Literal Rule, he would eventually inherit her property, being the only heir. The court applied the Golden Rule.
The criticism : GR is applied when it is only reasonable to apply; what is reasonable is a discretionary question, therefore what is reasonable to one judge might not be so to another. c. The ejusdeym generis rule This is the rule by which, where a general word follows a class of specific words, the general word is interpreted to refer to words of that class only. This rule was adopted by the High Court in the case of Public Prosecutor v Pengurus Hong Trading & Co (1985), where the relevant part of the statute referred to a prohibition on tea containing any Prussian blue, or lead or any compounds of lead or other matter . The question was as to the interpretation of other matter. The court applied the ejusdem generis rule and held that other matter referred to things of the same category as Prussian blue, lead or compounds of lead.

c. The mischief rule This rule facilitates the court to interpret words or phrases which are unclear and ambiguous in the light of the statute as a whole. In such cases the courts will enquire into the mischief behind the statute. i.e. the court will look into the overall intention of the legislature as discovered from a reading of the statute as a whole. The matters that the court must consider were laid down in Heydons Case (1584) as follows:
(i) What was the common law prior to the Act? (ii) What was the mischief and deficiency for which the common law did not provide? (iii) What was the remedy that Parliament had provided for? (iv) What was the true reason for the remedy?
Malaysian Legal System Page 11

(iv) What was the true reason for the remedy? This rule has been applied by the Malaysian courts in Lim Moh Joo v PP (1970).
In this case the Criminal Procedure Code required the Public Prosecutor to deliver a copy of a report to the accused not less than ten clear days before the commencement of the trial. The issue was whether the same procedure applied when the prosecution was by a private person. The court held that it did, saying that this was a case where the court must modify the language of the law to meet what must have been the intention of the legislature.

Malaysian Legal System Page 12

Human Rights, SUHAKAM


Saturday, 13 October, 2012 1:46 AM

Human Rights Commission of Malaysia Act 1999 @ SUHAKAM

1. Human rights may be said to be the basic rights that all human beings are entitled to enjoy. By section 2 of the Human Rights Commission of Malaysia Act 1999, human rights refers to fundamental liberties as enshrined in Part II of the Federal Constitution. 2. According to Kofi Annan, the Secretary General of the United Nations - human rights are the foundation of human existence and coexistence. Human rights are universal, indivisible and interdependent. Human rights are what make us human. They are the principles by which we create the sacred home for human dignity.

3 marks

FUNDAMENTAL LIBERTIES

1. So, what is fundamental liberties? The phrase, Fundamental Liberties, refers to certain rights, which may be considered as basic and essential to ensure the freedom of the individual. These rights are stated in the Federal Constitution and are said to be entrenched or enshrined because these rights cannot be altered or taken away altogether unless the Constitution itself is amended. This would be quite difficult as it requires a majority of two thirds of all the members of Parliament. 2. The provisions of the Federal Constitution which protect human rights are the fundamental liberties stated in Part II. These are listed and explained below: a. No person may be deprived of his life or personal liberty except in accordance with the law. By this provision, individuals are protected from being unlawfully imprisoned or put to death. An individual who is unlawfully detained, may obtain an order of the court through a writ of habeas corpus. This is an order of the court requiring that he be lawfully charged in court or be released. However, this right is not absolute. A person may still be deprived of his life or liberty in accordance with the law. Thus the Internal Security Act 1960, which was passed under powers conferred by Art.149 of the Constitution permits, among other things, preventive detention. b. No person may be subject to slavery or forced labour The constitution recognises that individuals should not be regarded as the property of others and thus bans all forms of slavery and forced labour. However, this right of the individual is given subject to the paramount interest of the nation. Thus, Parliament may make laws providing for compulsory national service. c. No person can be punished under a law which was not in force when the alleged crime was committed This protects the individual from being charged with a crime that was not recognised as a crime at the time the alleged wrongful act was done. Thus, laws against crimes cannot be passed with retrospective effect.
d. A person cannot be tried more than once for the same crime of which he has already been acquitted or convicted earlier
Malaysian Legal System Page 13

been acquitted or convicted earlier


This right recognises that an individual should not be placed in a position of double jeopardy, where he is made to undergo more than one trial for the same offence if he has already previously been tried and either acquitted or convicted. However, this does not apply in cases where a higher court has quashed an earlier trial and ordered a re-trial.

e. Citizens cannot be discriminated against in relation to the providing of education, merely on grounds of religion, race, descent or place of birth. This is subject to Article 153
f. Freedom of religion

The constitution also entrenches the right of the individual to profess, practice and propagate his own religion However, as Islam is the religion of the country, restrictions may be placed upon the propagation of other religions among Muslims.
g. No citizen may be banished from the country However, this right is subject to exceptions whereby the Federal Government is permitted to deprive a person of his citizenship under certain circumstances.

h. Every citizen has the right to freedom of speech, peaceful assembly and association However, in the interests of security, public order or morality, Parliament may impose certain restrictions. For example, the Sedition Act 1948 provides that it is an offence to question the sovereignty, powers and prerogatives of the rulers and the special position of the Malays. Further, the freedom of speech does not entitle a person to defame another. A person defamed has a right to sue under the law of defamation. It is important to note that a number of these liberties may be overridden by Art 149 and 150 of the Constitution. Among other things, Article 149 empowers parliament to make laws against subversion, whether or not an emergency is proclaimed. Such laws may be inconsistent with a number of the entrenched fundamental liberties such as liberty of the person, free movement and freedom of speech, assembly and association. An example is the Internal Security Act 1960.

SUHAKAM
1. Function a. to promote awareness of, and provide education, relating to human rights; b. to advise and assist the Government in formulating legislation and procedures and recommend the necessary measures to be taken; c. to recommend to the Government with regard to subscription or accession of treaties and other international instruments in the field of human rights; and
d. to inquire into complaints regarding infringements of human rights.

Malaysian Legal System Page 14