Question 2

Fundamental Liberties is not absolute. Discuss. (25 marks)

Answers

According to Philip and Jackson, constitution is defined as the systems of laws,

customs, and conventions which define the composition and powers of organs of state and

regulate the relations of various organs of the state and regulate the relations of various organs

to one another and to the private citizen. The Federal Constitution of Malaysia has a significant

feature of providing freedom of liberties of its subjects enshrined in Part II: Fundamental

Liberties, article 5 to 13. However, these Fundamental Liberties are not absolute and have

restrictions.

Article 5 sets the right to life and personal liberty. Every person has a right to life and

liberty. A person’s life or personal liberty cannot be taken away unless it is in accordance with

law. The courts have said that the right to life includes a right to livelihood and quality of life,

while the right to liberty includes the right to privacy.

A person who is arrested or detained must be informed as soon as possible of the

grounds of the arrest. It’s because, they have the right to consult and be defended by a lawyer

of his/her choice (this is known as ‘access to legal representation’) and they must be brought

before a magistrate within 24 hours and cannot be detained further unless it is with the authority

of the magistrate, known as a ‘remand order’.

 If a person has not been detained according to law, the person may file Write of Habeas

Corpus to the High Court and if the judge is satisfied, he is ordered to be released. As in the

case of Government of Malaysia v Loh Wai Kong, in which Kong came back to Malaysia

after working in Australia. He was charged for a criminal offence and required to hand over

his passport to the authorities. Consequently, he was denied renewal upon expiry of the

passport and was brought to the Federal Court. The case was dismissed because the issuance

of passport was the prerogative right of the government and the government may deprive his

liberty from leaving the country due to his criminal charges because Article 5 does not confer

citizen’s right to leave the country.

Next, Article 6 sets no slavery or forced labour. No one can be made a slave or forced

to work. However, Parliament may make laws to require Malaysians to provide compulsory

national service i.e. Program Latihan Khidmat Negara. Work or service required from a person

who is convicted of a crime is not considered forced labour.

Furthermore, Article 7 sets the protection against retrospective criminal laws and

repeated trials known as double jeopardy. A person cannot be punished for something which

at the time when it was done was not an offence. For example, if a law is passed to make it

illegal to drive past a speed limit of 80km/h, a person driving past that speed limit before the

law is passed cannot be punished. This is known as the prohibition against retrospective

criminal laws. If the punishment for a crime is increased, a person who committed the crime

before the punishment was increased cannot be given that increased punishment. For example,

if the law is amended to change the punishment for breaking a speed limit from a fine to a

prison sentence, a person breaking the speed limit before the law is amended cannot be

punished with a prison sentence. A person who has been acquitted or convicted of an offence

shall not be tried again for the same offence, unless the conviction or acquittal is quashed (set

aside) and a retrial is ordered.

 Moreover, Article 8 sets equality. All persons are equal before the law and entitled to

equal protection of the law. Unless the Constitution says so, citizens cannot be discriminated

only because of their religion, race, descent, place of birth or gender. It include in under any

law like in the employment by a public authority or how any law is applied relating to property

or any trade, business, profession, vocation or employment.

However, Article 8 does not apply to laws that regulating personal law, laws relating to

office or any employment connected to any religion or religious institutions, laws for the

protection, well-being or advancement or the reservation of a quota of employment in the

public service for the Orang Asli of Peninsula Malaysia, laws that say that a person to be elected

or appointed into a State authority, and any person who can vote in such elections, must reside

in that State, laws in the Constitution of a State that were made before Merdeka Day (31 August

1957) and laws restricting enlistment in the Malay Regiment to Malays.

Then, Article 9 sets freedom of movement. A Malaysian citizen cannot be banished or

excluded from the country. In general, every citizen has the right to move freely and stay in

any part of the country except where any law is passed relating to the security of the country,

public order, public health or the punishment of offenders. The special position of Sabah and

Sarawak compared to other States also allows for laws to be made to control who can enter and

stay in Sabah and Sarawak. We talk about the special interests and safeguards for Sabah and

Sarawak in The Rakyat Guides 7: Sabah and Sarawak.

 Next, Article 10 sets freedom of speech, assembly and association. Citizens have

freedom of speech, assembly and association but these freedoms may be restricted by

Parliament for reasons permitted by the Constitution. The Courts have said Parliament may

only impose restrictions where they are reasonably necessary. We have freedom of speech and

expression. It’s where every citizen has the right to freedom of speech and expression.

However, Parliament may make laws to restrict this right if they are necessary or expedient in

the interest of the security of Malaysia, friendly relations with other countries, public order or

morality or the protection of the privileges of Parliament or any State legislative assembly or

to provide against contempt of court, defamation or incitement to any offence.

In imposing restrictions on the freedom of speech and expression in the interest of the

security of the country or public order, Parliament may pass laws prohibiting the questioning

of matters relating to citizenship, the national language, the special position of Malays and the

natives of Sabah and Sarawak and sovereignty of the Rulers. However, it is not illegal to

comment on the implementation of these matters.

Then, right to assemble peaceably and to form associations. All citizens have the right

to assemble peaceably and without arms and to form associations. However, Parliament may

make laws to restrict these rights if they are necessary or expedient in the interest of the security

of the country, public order or morality (only for the right to form associations)

Furthermore, Article 11 sets freedom of religion. This Article states that every citizen

has a right to profess and practice his faith and religion peacefully in this country. However,

this liberty is restricted by Article 11(4). Basically, it prohibits the propagation of any religious

doctrine among persons professing the religion of Islam. Plus, this Article must be read with

Article 3 (1) and Article 11 (5) which state the practice of religion must not disturb

peacefulness, and must not adversely affect public order, public health or morality.
 Cases that related with this Article is Meor Atiqulrahman Ishak & Ors v Fatimah bt

Sihi. Meor Atiqulrahman and 2 others wore turban as part of their school uniform. They were

repeatedly asked not to wear the turban as it was not in compliance with the school regulation.

They refused to follow the regulation, and as a result, the headmistress expelled them from the

school. In the court, the plaintiffs argued that the headmistress’ action had violated their right

to practice freedom of religion. They further argued that the wearing of turban is part and

integral of Islamic practice. Their case was dismissed that the Federal Court opined that the

school regulations (that prohibits the wearing of turban) does not contravene Article 11 of the

Federal Constitution.

Moreover, Article 12 sets Right to Education. In Malaysia, education is absolutely

accessible to every citizen. Regarding the administration of educational institution (maintained

by a public authority), the admission of students and the payment of fees – Article 12 prohibits

any form of discriminations on the grounds of religious, races, descent or place of birth in these

matters.

Lastly, Article 13 sets about Right to Property. This Article guarantees the citizen’s

right to own property and he shall not be deprived of this right, except in accordance with law.

No law shall provide for compulsory acquisition or use of property unless adequate

compensation must be given to the owner of the property.