Nik Aisha Tasnim’s

Class: Dr Khairil

Art 5- FUNDAMENTAL LIBERTIES - Concerns public servant that’s

terminated by the authority
Art5 Liberty of the person.
Right to liberty
The Topics/ Issues
- Right not to be unlawfully
provisions
detained/arrested/injured
Art 5(1) Right to Personal liberty
- Anything related to the body of a
- The limitations
person
- Issue: what law can
the gov impose to
Tan Tek Seng - Right to have a quality
implement this
v Suruhanjaya life. A good lively hood
- Only law that complies
Perkhidmatan - Whats good livelihood?
with principles of
Pendidikan
Natural justice
Anor
- Valid law doesn’t
Lembaga - Right to life
mean it can be used to
Tatatertib v - Scope of right to life is
limit this right
Hospital wider than personal
Besar Pulau liberty and concerns
Right to Life
Pinang v Utra personal livelihood
- The limitations
Badi
Just law?= fair trial/ Principles
Ooi Ken - Not all actions can be
of Natural Justice
Thong & Anor claimed under right to
- Natural justice: right to
v PP (2006) life
be heard and right
against violence.
- Within these principles Ketua -
- Byk case to define Pengarah
what is natural justice Jabatan Alam
- ie right of public Sekitar v
servant Kajing Tubek
5(2) Unlawful detention and
Habeas Corpus Kerajaan -
- HB: what person can Negeri Johor v
claim when unlawfully Adong bin
detained Kuwau
Art5(3)(4) Rights of an arrested person
& (5) Batu Bagi & - Their livelihood has been
Ors v deprived of
Kerajaan
Negeri
Art5(1)= Right to life
Sarawak
Layman’s understanding: life as opposed to
death
A person has right to be alive. Taking life of ___________________________________
person is unlawful and unconstitutional. Summary of all three as all three concerns
native of Sarawak.
Scope of life is expanded in these cases - Diff with the natives if the gov took
- Covers many things. Right to their land
employment. Cuz without employment - It will change their way of life if they
he cant get income and he cant lead a are told to move out from their homes
comfortable life where their ancestors had lived
- Right to live in a clean environment

24
Nik Aisha Tasnim’s
Class: Dr Khairil
- How can we do justice to them? (Batu
Bagi & Ors)
- Art5(1)
__________________________________
Deprivation of life: Validity of mandatory
capital punishment
Provisions pertaining to mandatory capital
punishment:
i. Penal code
j. The dangerous drugs Ordinance
k. Another 2
Many attempts to declare those provisions
unconsti.
AG held that: “under Article 5(1)
Malaysia of the Federal Constitution,
v Chow the law is that if Parliament
Thiam deems it necessary that the
Guan death penalty should be
mandatory it is not within the
province of the court to
adjudicate upon the wisdom of
such a law. The law may be
harsh but the role of the court
is only to administer the law as
it stands
PP V Yee High Court held (Ajaib Singh J)
Kim Seng that : “Article 5(1) is not
infringed because the accused
is not going to be deprived of
his life or personal liberty
except in accordance with law
PP v Lau Public Prosecutor v Lau Kee
kee Hoo Hoo, 32 it was held that a
person may be deprived of his
life so long it is in accordance
with the law. Similarly, the
Federal Court in Public
Prosecutor v Lau Kee Hoo, 33
had to decide on the issue :
“Whether or not the
mandatory death sentence
provided under section 57(1)
of the Internal Security Act,
1960, is ultra vires and violates
Articles 5(1), 8(1) and 121(1) of
the Federal Constitution.”
25
Capital punishment is a matter
for Parliament. It is not for
judges to adjudicate upon its
wisdom, appropriateness or
necessity if the law prescribing
it is validly made;
Capital punishment is a matter
for Parliament. It is not for
judges to adjudicate upon its
wisdom, appropriateness or
necessity if the law prescribing
it is validly made.
Che Ani
bin Itam v
PP
Che Omar
bin Che
Soh v PP
Latitia
Bosman v
PP
Recent developments= Malaysia ends
Mandatory death penalty
- DR passed an appeal that abolishes
mandatory death sentence
- Death sentence still exists btu no
longer mandatory
- Mandatory: no choice but to sentence
a guilty person to death
- The changes: the judge has the choice
to send the person to life
imprisonment or the death sentence in
exceptional cases
- Theres 34 criminal offences punishable
by death where 11 is mandatory death
sentence
Art5(2)- Right to Habeas Corpus
Habeas corpus literally means: bring the body
Where complaint is made to HC or any judge
thereof that a person is unlawfully detained
the court shall inquire into the complaint.
Upon investigation, the court decides the
detention is unlawful, the HC will issue and
order for habeas corpus asking the person to
be released (the illegal arrest/detention is
quashed by HC)
Nik Aisha Tasnim’s
Class: Dr Khairil

- Habeas Corpus is an order from the - Eg: unlawfully detained. Habeas corpus
High Court is available but has to be claimed. If
- Order of release is issued to the one not claimed, he’ll stay detained
who has custody of the aggrieved
person. Next lecture, details of habeas corpus
- App of Hab Corp made to HC
- Someone representing a complainant
Article 5(2)- Habeas corpus
on his behalf to file the complaint
- Application of habeas corpus starts in
the High Court, when appealed terus
to Fed Court.
Detention is against Art5(1) - A complaint of habeas corpus must
But rights can be claimed be it legal specifically be claimed/complained on
detention/illegal detention his own behalf.
- Legal detention= Right of An Arrested - The judge shall look into the complaint
Person > Art5(3)(4) and determine whether the detention
o Examples: lawful arrest made or arrest is lawful or unlawful
by the police. o If lawful= the arrest/ detention
shall continue and court
When a person is arrested. should not interfere and not
Their right to liberty is grant the order of habeas
deprived but it is legal. (only corpus.
within 48 hours) o If unlawful= the HC judge will
issue writ of habeas corpus.
o Another example: a person is
being detained without trial Detention
under certain laws like Legal detention Illegal detention
dangerous drugs act, terrorism Rights of an arrested Apply for habeas
act, prevention of crime act. person- Art5(3) & corpus in Art5(2)
(Executive decisions. Valid (4) or
detentions unless proven Rights of a detainee
otherwise) (art151)
Lawful arrest made A detention against
- Illegal detention = Habeas Corpus by police Art5(1) when the
o For people unlawfully arrested When a person is detention is
or people illegally detained being detained unlawful
- Court will issue arrest without a trial
Under special law
(drugs act/
Gov of In construing personal liberty dangerous act)
Malaysia v in art5(1) it only guarantees a
Loh Wai person, citizen or otherwise If want to keep the
Kong 1979 except an enemy alien. detainee longer, an
Freedom from bein order from the court
unlawfully detained is needed.
Ac to dicey
Art5(1)&(2)
Sir comments: Art 5(2), for habeas corpus is a The right to writ of habeas corpus
good example of rights and remedy. When - HCorp literally means bring the body
rights are infringed. Remedy doesn’t come to - It’s a prerogative writ issued by the
u. You must claim. court used to command a person who

26
Nik Aisha Tasnim’s
Class: Dr Khairil

is detaining another in custody to Anor

produce that person before the court. Re Onkar
- Its used primarily to secure the release Shrian
of a person detained unlawfully// Sejahratul
without legal justification. Dursina v
- HC judge will quash an illegal detention Kerajaan
of a person by issuing habeas corpus. Malaysia
- The order is issued to the person who Cheow
has the custody of the aggrieved Siong Chin
person (the detainee). Andrew s/o Any form of detention does
- The grant of habeas corpus is as of Thamboosa violate the Article 5 and
right and not in the discretion of the my v power given by law to detain
curt in circumstances of a fundamental Superinten must be interpreted strictly.
right being involved. dent of
Pudu
Power of HC to Provide Prisons KL
Section 25. Additional Powers of High Re Meenal
The Courts Court w/o
of - Mentions the power of HC Muniyandi
Judicature to issue to any persons, 1980
Act orders/writs of the habeas
Corpus nature. Mala Fide batteries: The grounds to
argue the detention is invalid/ unlawful.
The S365- Power of HC to make 1. Detention made outside the territorial
criminal certain orders jurisdiction of the law (Re James Wong
procedure Kim Min)
code Provisions of the law allowing
*Habeas Corpus is a mixture of civil and detention without trial must be strictly
criminal matter interpreted and safeguards as law
purposely provides for the protection
Situations where habeas corpus is of any citizen.
inapplicable.
1. Undergoing a sentence of 2. The executive had acted mala fide in
imprisonment made by a court of making the order of detention -
competent jurisdiction substantive review (Peh Swee Chin J in
2. Lawful arrest on a reasonable suspicion Karpal Singh s/o Ram Singh v Menteri
of having committed a crime 24 hours Hal Ehwal Dalam)
3. Lawful remand under an order of a - Discusses that mala fide isn’t malicious
magistrate- more than 24 hours intention. It normally means that a
4. Challenge the legality or validity of trial power is exercised for a
5. A person on bail collateral/ulterior purpose. For
6. A person who is subjected to a purpose other than the purpose for
restriction order which it is professed to have been
exercised
Sukma
Darmawan 3. Technical defects or noncompliance w
v Ketua procedural requirements in relation to
Pengarah the detention./ The failure to comply
Penjara w a cond precedent - procedural
Malaysia & grounds. (Re Tan Boon Liat (1976))

27
Nik Aisha Tasnim’s
Class: Dr Khairil

Art5(3) Rights of Arrested Person offence and failure to

Art5(1) Art5(2) Art5(3)&(4) inform him he was
Right to Right to Rights of an arrested bcuz of his
Personal Habeas arrested involvement w drug
liberty Corpus Person trafficking/offence
Right NOT to Remedy for Rights for a - Court disagrees (the
be unlawful person inform was sufficient)
unlawfully detention when the Right to be informed IMMEDIATELY
detained and unlawful arrest is Abdul Held that a person arrested
and arrest. lawful. Rahman v on suspicion of committing
unlawfully Tan Jo Koh an offence, is entitled to
arrested immediately know the
reason for his arrest. It was
also held that if the reason
Art5(3)- can make under arrest even no
was withheld, the arrest and
physical connection detention would amount to
false imprisonment, until the
In S15: Criminal Procedure Code time he was told the reason
(1). In making an arrest, the police or other Yit Hon Kit
person making the same shall actually touch or v Minister
confine the body of the person to be arrested of Home
unless there is a submission to the custody by affairs,
word or action. Mas

Art5(3)- where a person is arrested, he shall

be:
2nd Right: The right to consult counsel
1. informed as soon as may be of the Ooi Ah Police may delay provided
grounds of arrest Phua that the delay is reasonable
2. shall be allowed to consult - Suffian LP: right
3. and be defended by a legal practitioner begins from moment
of his choice. of arrest but cant be
*so we can see from above that there are 3 exercised
rights immediately after
arrest.
The provision in CPC is more specific on the
rights Held: delay of 10 days of
consultation w lawyers in a
police lock up can be
1st Right: informed as soon as may be of the postponed pending police
grounds of arrest investigations. Its emphasis
S28A Rights A person arrested w/o that a balance must be struck
of Person warrant shall be informed as between the entitlement of
arrested soon as may be the arrestee and the duty of
[Art5(3)] - can be done in writing police to collect evidence.
and orally (P.E Long @ Hashim b The right to consult counsel
Jimmy [1976]) Saud v begins from the moment of
Right to be informed Yahaya b arrest. But the right was
Chong Kim - it was argued that the Hashim postponed so long in this
Loy v The police may be specific case. Since the request to
Menteri why he was being consult counsel was done
Dalam arrested. when pf was under
Negeri - Convicted for drug detention, the pf cant

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Nik Aisha Tasnim’s
Class: Dr Khairil
exercise his right at the
material time. Consequently,
there cant be a denial of such
right.
The plaintiff then took action
against the defendants for
wrongful detention but
Harun J held that the
information that was given
by the plaintiff had proven to
be reliable and credible in
the past. Therefore, the
arrest of the plaintiff without
a warrant was proven to be
lawful.
Ramli b The right begins from the day
Salleh v of his arrest even if
Inspector investigation hasn’t
yahya b completed.
Hashim
The action of the resp in this
case of restricting the
learned counsel’s application
to interview his client on the
expiry of the detention
period is unreasonable.
- Police musnt delay
interviews on
arbitrary or fanciful
grounds with a view
to deprive the
accused of his
fundamental right.
The right to be defended by a legal
practitioner of one’s choice
Legal profession Act 1976
S28A. Attorney General’s power
Saul Hamid A person who is qualified
v PP
Cherie They appointed to represent
Booth QC v client in Malaysia but AG
AG rejected application
Mohamed A person appoint a lawyer
b Abdullah but the lawyer didn’t attend
the hearing
- The court may proceed
and not have to wait for
the lawyer.
Held: its wrong to say that a
29
litigant is entitled to be
represented by counsel of
choice.
- Accurate: he is entitled
for so if the counsel is
willing and able to
represent him.
Art5(4)- About time period
When someone is arrested and not released.
He shall without unreasonable delay.
Prohibits further detention of the accused w/o
the magistrate’s shariah court judge’s
authority.
Exception to Art5(4)
In paras 2
and 3 of
the clause
And (5)
Aminah v Art5 clearly meant to apply to
Superinte arrests under any law
ndent of whatsoever in this country
Pudu
Prison FEDCOURT: agreed to read
into art5(3) and art(4) as
permitted by art162(6)
Loh Kooi Position of Aminah was later
Choon v changed after the clause was
Govt of amended.
Malaysia
Chong was arrested under s3
Dangerous Drugs Act and later
detained under the law
- Argued that there had
been a contravention
of art5(4) of the consti
as the applicant hadn’t
produced before the
magistrate within 24
hours after his arrest
and detention at the
police station.
- Held: legislation under
art149 may restrict the
right conferred by
art5(4) but any such
restriction must be
clear in the legislation.
Nik Aisha Tasnim’s
Class: Dr Khairil

*this right National level prohibition of slavery

In penal code
- S370: buying or disposing of any
Article 6- Prohibition of Slavery person as a slave.
- S371: habitual dealing in slaves
Art6(1)-No person shall be held in
slavery Anti-trafficking in persons and anti-smuggling
- The only prohibition in absolute sense of migrants act 2007
- The right to not be a slave - S370: buying or disposing of any
- This right is absolute person as a slave.
- Applicable to every person (respective - S371: habitual dealing in slaves
of age and whatever background
Wong Lai Young couple was in debt so
Why the need for this when theres no slavery Fatt v PP they had applied for loan.
in current times - But they borrowed
- Slavery is a crime from ah long
- When it’s a crime, its something - And since they
people don’t commit couldn’t pay their
- Ordinary people: slavery is uncommon debt, the person that
- However the number of slavery has lended money forced
increased, this is contrary to the reality the woman to be in
that we know prostitution.
- The creditor wanted the
Slave Meaning- Slavery convention woman to still continue
Art1(1) prostitution eventho they
‘The status or cond of a person over whom any had paid off debt.
or all of the powers attaching to right
ownership are exercised.’ Counsel for husb advised the
- Slavery denies a person from all husb to plead guilty.
human rights - The HC judge had
- Eg: right to life (life, death and recognised that justice
livelihood are decided by other human wasn’t given and thus had
being) given 4 years in prison
- Right to personal liberty (the person instead for the husb
serves another person w complete (patutnya hukuman mati)
obedience and without any choice or
say) Thing to be highlighted was
- Ownership here refers to ownership of that the wife had been forced
a person. The person isn’t own by against her will to be a
himself but another. So he has no prostitute and give her body to
power to decide on things for himself anyone.
- To work/ not to work/ to not marry or - Modern slavery
marry Subraman- Decision by Privy council
- So he has no right to life iam v pp - Person forced to serve
- He has no right to personal liberty the communist
o A person serves another
person w complete obedience Main characteristics of slavery
and without any choice 1. Ownership
o No say even in matters of life A common theme existing in all the
and death conventions concerning the abolition of
slavery-like practices.

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Nik Aisha Tasnim’s
Class: Dr Khairil

The coercion or force usually involved the use

Modern context punya of violence or intimidation or by more subtle
1. The degree of restriction of the ind’s means such as accumulated debt, retention of
inherent right to freedom of identity papers, or threats of denunciation to
movement immigration authorities.
2. The degree of control of the ind
personal belongings *amount of salary being bigger or smaller than
3. The existence of informed consent and friend is not forced parties if its accepted by
a full understanding of the nature of both parties.
the relay btw the parties *diff with us working is that we work
voluntarily
It will become apparent that these elements of
control and ownership often accompanied by A free man Have the Complete
the threat of violence, are central to identifying liberty in liberty
the existence of slavery relation to
*if they say that youre an obedient employment
son/daughter= not slavery because its done Forced Have no or Liberty is
out of respect/love/sympathy labourer limited limited
*diff w Slavery because it has use of violence liberty “
A slave Have no or No liberty
Forms of modern slavery In limited
1. The migrant worker whose passport has democratic liberty in
been confiscated by his or her employer country relation to
o Very serious because if they die, the takleh employment
gov wouldn’t know bcuz they gov because
don’t have their documentation demo
o These people are vulnerable country
because if they don’t obey they ensures that
would be exposed to gov of everybody
passport being confiscated has rights
2. The child sold into prostitution
3. Woman forced into sexual activities/trade ILO Forced Labour Convention: Art2.1
Definition by them gave three elements:
All have the element of choice and control of 1. Malas take note huhu
their lives taken from them, either by circum or
through direct action and passed to a 3rd party. Penal Code: Offences Affecting Human Body
(PartXVI)
- Section 374: Unlawful Compulsory
Art6(2) Prohibition of Forced Labour
Labour
Art6(2): all forms of forced labour are
- Whoever compels any person to
prohibited.
labour against the will of that person,
shall be punished with imprison……
Labours: practical work, especially when hard
phys effort
Barat Estates Involves s12/s13 and deals the
Sdn Bhd v consti right of employee to
Manual Labour: Hard Work using the hands
Parawakan choose the employer for the
Subramaniam lost of the right unde the
Forced labour: situations in which persons are
sections mentioned
coerced to work
- Plaintiff is worker in
Work that is performed involuntarily and
the estate
under the menace of any penalty
- The owner sold the

31
Nik Aisha Tasnim’s
Class: Dr Khairil
property to a new
owner
- The barat estate told
parawakan to stay and
cont working at the
estate
- The new owner came
and took over the
estate and took
control over parwakan
- Consti issue:
parawakan was asked
to work for new owner
- Barat estate tak kasi
notice of change of
new employer
- Parawakan contended
that they weren’t
given a choice to
choose whether to
work for the new
employer or not
International Law exceptions
Forced Labour boleh
Art2(2) of Convention no.29 describes 5
situations where it can
1. Compulsory military service
2. Normal civic obligations
3. Prison labour (under certain
conditions)
4. Work in emergency (war, calamity,
threatened calamity like fire flood etc)
5. Minor communal services
National Law exceptions
Art6(2) Parliament can pass law for
compulsory service for national
purposes
- When receive letter
then they have to go
- Allowed because for
benefit of the country
Art6(3) when a prisoner has to do work
during their stay in prison, that’s
not regarded as forced labour
Art6(4) when a public servant is
32
changed from one pub authority
to another public authority then
that isn’t forced labour.
Art7(1) Prohibition of
retrospective Criminal Laws and
Greater punishment
Art7(1) explains the:
1. terms of fairness of innocent person
and
2. Terms of fairness of punishment
- Focuses of fairness for innocent persons
- When a person is innocent, he shouldn’t be
punished.
- And fairness in punishments
Two limbs
1. [Prohibition of Retrospective laws]
No person shall be punished for an act
or omission which wasn’t punishable
by law when it was done or made
2. [Prohibition of Greater punishment]
No person shall suffer greater
punishment for an offence than was
prescribed by law at the time it was
committed
Applies in criminal
- But punishment can only occur for
criminal/ penal offences
- If he hasn’t committed any act against
the law (at the time) how can he be
punished? < that’s the rationality
- The borderline: when the law was
made an enforced.
This is in line with the rule of law by AV DIcey
- No person is punishable or can be
lawfully made to suffer in body or
goods
- Except for a distinct breach of law est.
aka no one shall be punished until
proven guilty
Law passed by legis on 1st Jan 2019
Nik Aisha Tasnim’s
Class: Dr Khairil

Have legal Have legal Have legal

effect on effect on effect Maria Chin bt
dec 31 2017 Jan 1 2019 Dec 1 2020 Abdullah v PP
Retrospective Immediate Prospective
Mohd Roziman
Have force of Have force Have force b Saaidon v PP
law at an of law of law at
earlier date immediately future date Dalip Bhagwan
^valid but Singh v PP
note until
the date is Mohd Amin b
mentioned Abdullah v pp
Pp v
No prohibition- Civil matters Karthiselvam a/l
Prohibited Vengatan
Retrospective effect of substantive criminal
law (creation of offences) *Prohibition of retrospective Criminal law is in
Prohibited: its substantive element
The retrospective effect of procedural law and
law of criminal trial Prohibiton of Greater Punishment (2nd
Tuan Hj Zulkifli
Limb)
No person shall suffer greater punishment for
hj Hussain v
an offence than what was prescribed
Suruhanjaya
- This is when an amendment was made
Sekuriti & Ors
to a law
Loh Kooi Choon
- And a punishment was amended
v gov of
making the offence he had made
malaysia
before capable of being punished with
Lim Sing Hiaw v
a bigger punishment
PP
- The rule might be simple but when
Gerald
cases are read, it might be a little
Fernandez v AG
complicated
Pp v Musa
Pp v Mohamed
Nordin - He wasn’t sent to
ismail
Yusmadi prison but he was
Yusoff v PP sent to school
Pp v Hung Peng 1997 - He has committed an
Khai ofence and was said to be
guilty
PP v Chung - He was released
Tshun Tin & Ors - Unfortunately,. The pp
appealed against the
Haw Tua Tau v released
PP - He was arrested again
Jabatan Agama and put in prison
Islam WP & Ors - Court held that he cant
v Berjaya Books be punished twice
Sdn Bhd - Twice would mean
greater punishment
Rina
Simanjuntak

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Nik Aisha Tasnim’s
Class: Dr Khairil

Art7(2)- Protection against Repeated Polis

Trials Sukma
A person who has been acquitted or convicted Darmawan
of an offence shall not be tried again for the Sasmitaat
same offence. Madja

Acquittal= Trial and decision has The pleas don’t apply where:
finished/concluded 1. A trial has been held to be a nullity
Conviction= trial has ended and has been 2. The accused has already been
found guilty subjected to preventive detention
No conclusion= no acquittal/conviction 3. The accused is preventively detained
having already been convicted of an
Charged again on the same facts (but not if offence
same offence) = boleh 4. The accused is charged with a different
Diff offence but same facts= boleh offence on the same facts
Same offence same facts = xleh 5. EXCEPTION mentioned in Art7(2)
When the conviction or acquittal has
Saravanan Art7(2) of the FC lays down the been quashed and a retrial is ordered
a/l KS Somu principle that a person shall by a court superior to that in which a
v Timbalan not be placed in double defendant was acquitted or convicted,
Menteri jeopardy and be punished for neither the plea of ‘autrefois acquit’
the same offence. nor ‘autrefois convict’ applies.

Held: Art 8- The right to equality and

- A person shouldn’t be put
in jeopardy twice for the
same offence. Because of
this safeguard, an
accused may make a plea
of autrefois acquit or
autrefois convict as case
may be
- Autrefois acquit= means
the accused has already
been acquitted of the
offence.
- Autrefois convist= means
the accused has been
convicted of the offence.
- The previous proceedings
must have actually
resulted in a verdict of
guilty or not guilty.
Mohamed
Yusoff
Smaadi v
AG
Ismail b
Ahamad v
Suruhanjaya
Pasukan
prohibiton
Rule of law
Albert Venn Dicey defined the rule of law
= it means all persons are equal before the law
and equal subjection of all classes to the
ordinary law of the land administered by
ordinary court
- People of all strata of society
- The law is not only meant for certain
people only
- When we enforce the law and apply
the law, the court shall dispense justice
to solve the dispute
- So we have these same courts that will
be using the same law for all of the
people
- So we don’t have a court meant for a
specific people
- Another court specific to this people
Aspect of the rule of law:
- Above the law
- No man is above the law
- All are equal in the eye of the law

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Nik Aisha Tasnim’s
Class: Dr Khairil

- Every person is equally subject to the

same law
- All persons are equal before the law -
and is entitled to the equal protection Thanavatan The doctrine of equality
of the law v majlis embodied in the consti
Peguam which is aimed at striking out
Article 8(1)= shows the supremacy of the law Malaysia as arbitrariness, applied duty
Meanwhile art4(1) shows the supremacy of the 2003 bound to give equal
consti treatment to persons

Case Equally to punishment

Sivarasa As may be seen, the art imposed in cases
rasiah v guarantees two separate and
Badan distinct rights namely: Is equality= as justice?
Peguam - Equality b4 the law equality Justice
Malaysia - Equal protection of the Being in the same Fairness in the way
[2010] law quantity, size, people are dealt
- Cant be overemphasised degree or value with
that in acc with well
settled principles of Just= acting or being
consti interpretation, in conformity w
each of these rights what is morally right
must be treated as a or good
separate and distinct Its something
……… righteous
A person or thing
All persons are equal b4 the law and is entitled that’s the same as
to the equal protection of law anor in status or
- Punishment/ sentence by the court quality
- Art 5(1)= u cant punish person unless
proven guilty Same as in same
o prohibits people from taking amount??????
the laws in ur own hands
o Xleh act vigilante *Equal justice is only applicable in public sector
- Case of PPv Tengku Muhammad *for private sector and individual
Iskandar [1971] Case
Pp v So liang Yu 1976
PPv Tengku The court is going to give - The dominant idea in both expressions
Muhammad order to executioner to be ‘equal before the law and ‘equal
Iskandar punished. protection of the law is that of equal
[1971] justice’
The sentence given by
sentence judge was lenient, PP v Khong Teng Khen 1976
so the PP filed an appeal - The principle in art8 is that a law must
because PP said that the operate alike on all persons under like
punishment is not circum
proportionate to the gravity - Not simply that it must operate alike
for the crime on all persons in any circum
- Not that in general in character and
universal in application

35
Nik Aisha Tasnim’s
Class: Dr Khairil

- All that Art 8 guarantees is that a - Also relates to order

person in one class should be treated
the same as another in the same class.
*if they are diff group and diff cricum then
they should be treated differently
What Art8(1) TAK Guarantee
- Doesn’t quarantee equality that’s not
justice
- Allows difference of treatment that
attains justice
- Allows reasonable classification
- The status of a person
Art9(1)= The Immigration Act 1959/63 provides
detention and deportation of foreign nationals
like the banishment act which has been
repealed
- This isn’t a straightforward process
- Not the same with detention without
trial (that’s done under Art149/
Dangerous drugs act/ terrorist act)
- In cases of habeas corpus when about
to be deported (for PATI: Pendatang
Asing Tanpa Izin)

*Glaring differences between (1) and (2)

(1) For every human being Article 9(2)
(2) For the citizens ONLY Subjected to clause 3 and to any law relating to
the security of the federation or any part
Art9(1) Prohibition of thereof, public order, public health, or any
banishment punishment of offenders, every citizen has the
right to move freely throughout the federation
Banish: send (someone) away from a country
and to reside in any part thereof.
or place as an official punishment. No citizen
- This right is only for Malaysian citizen
shall be banished or excluded from the
- Freedom of movement is only
Federation citizen cant be banished from the
guaranteed in the country and not in
country. Citizen must also be allowed to return
foreign country.
even if he is a criminal.
- Noncitizen can be banished
Gov of - Whats the purpose of the
- Non-citizen may be not allowed to
Malaysia v order?
enter the country and may be expelled
Loh Wai - To direct the authority to
form the country.
Kong of issue him a passport and
Malaysia & contended that he had a
Banishment Act 1951
Ors fundamental right to
Ex-Parte Tan Kheng Long 1958 3 MC 205
travel abroad and the
- In this case, the applicant, a British
refusal of a passport
subject and Federal citizen by virtue of
violated his right.
Article 124(1)(b) of the Federation of
- The HC rejected the
Malaya Agmnt 1948, had been served
application. Loh Wai Kong
with a banishment order and deported
then appealed to the
- Being a federal citizen, it was argued
Federal Court
that he couldn’t be banished under
Art9 of the Consti
The federal court then
- However Rigby J held that the court
decided that:
couldn’t in view of sect 12 of the
- Art 9 is silent as to the
banishment ordinance 1959. Go
citizen’s right to leave the
behind the banishment ordinance
country to travel overseas
1959, go behind the banishment order
and to have a passport
of the Minister in order to ascertain
- The citizen has no
the nationality of the applicant.
constitutional right to
leave the country, to
Kung Aik

36
Nik Aisha Tasnim’s
Class: Dr Khairil
travel overseas
- The citizen doesn’t have
the right, not even
qualified right to a
passport
- A citizen has no
fundamental right to
leave the country without
a passport
- Sir suddenly mentioned
the case of ghandi
(doctrine of basic
structure)
- Our consti is applicable
only in our country. We
cant apply it in other
countries. So how can we
guarantee a right in other
country.
Constitutional Limitations
Art9(2) =
Art9(3) =
Art9(2)
The Q of whether the provisions of the
restricted Residence Enactment
(Cap39)(revised in 1989 as the Restricted
Residence Act 1933 (Act377) authorising
detention and or deprivation of liberty of
movement was void as being contrary to the
provisions of the Federal Consti was
considered by the Fed Court in Assa Singh v
Mentri Besar Johore 1969
Held: Q is answered in the negative on the
grounds that the Restricted Residence
Enactment is a law relating to public security
and is therefore not inconsistent with Art9.
Datuk Seri - Argued that the right to
Anwar freedom of movement is
Ibrahim v subject to any law in clause
Kerajaan 2 and may be restricted by
Malaysia & any act of Parliament or by
Anor [2021] any provision in the FC
- There is however an
important
- This relates to the power of
the National Security
Council.
37
- He said that the council is
against the constitution
- App (Anwar): Says National
Security Council Act 2016 is
void
- Says the NSCA should’ve
been enacted under Art149
of the FC which alone
permitted the curtailment
of such fundamental rights
- Held: Act was valid
Pua Kiam - Not allowed to go overseas
Wee v - Court says it isn’t unconsti
Ketua
Pengarah
Imigresen
Malaysia
and Anor
PP v - He had caused death
Harmender- because was drunk driving
pall singh - His license was taken away
Jagara - he argued that the
Singh provisoonsudner the road
transport act which took
away his license was
unconstitutional (againt
art5/8)
- Court: no absolute right to
drive on our road and the
suspension made under the
act was conctitutional
- Because the intention of
the act was to protect all
road users
Kerajaan - Arguments: when they
Negeri were expelled from the
Johor & place that they live, their
Anor v movement was restricted
Adong bin because they can’t return
Kuwau back to their place
- Held: yes, they have been
t=denied their free right
of living which is to go
back and collect produce
Nik Aisha Tasnim’s
Class: Dr Khairil

Art9(3) Article 10
- Under the consti, there are states Freedom of Speech Assembly and azzociation
that’s under special position - Subjected to clauses (2)(3)(4)
- Not the ones under states of Malaya - Every citizen
which is Sabah and Sarawak.
- So the federal government can impose Speech and expression
restrictiosn of movement in all - Its very wide
countries. Right of that power takde - It involves any communication
kat Sabah Sarawak je. - It could involve the photos, pictures,
symbols, sign language
Pihak Berkuasa Negeri Sabah v Sugumar - All of the abovementioned are
Balakrishnan considered communication eventho
- Whether he had the right to stay in w/o words
Sabah - It covers publication of anything=
news/ books
Article 64: Application of Immigration Act -
Article 66: Restricion of citizens right of entry
into and east Malaysian state Citizens
- When hes a member of any of the pub - In terms of persons and legal entity
services of the federation - Non-citizens don’t get the protection
- When hes NOT entitled under article 10(1)
- Case of Dow Jones’
Datuk Syed
Kechik bin Cases
Syed Dow
Mohamed v Jones
Gov of Publishing
Malaysia 1979 CO (ASIA)
Inc v Ag
Pihak 1989
Berkuasa
Berkuasa v
Sugumar Article 10(2)(a)
Balakrishnan - Factors that can be used to restrict
freedom of expression
Ambiga a/p - Law for the interest of the security of
Sreenevasan v the federation
Director of - Law of friendly relations w other
Immigration, countries
Sabah, Noor - Law relating to public order morality
Alam Khan bin restrictions to
Abdul Wahid
Khan Article 10(4)
- Restrictions can be done for the
security of the Federation for any
matter pertaining to sovereignty or
Article 10 prerogative est/protected under:
o Article 152
o 153
Article 10(1)(a) Freedom of Expression o 181
o Contempt of court

38
Nik Aisha Tasnim’s
Class: Dr Khairil

o defamation statutes such as the right to

o Rulers sovereignty information Act.
- An example would be seditious acts
(Sedition Act) Article 10 isnt widely
worded such as a s2(b) of
This right is based on: the Canadian Charter of
Article 19- to understand the scope of the Rights that clearly mentions
laws. We can refer to this article from the the right to information
Universal Declaration of Human Rights
(UDHR) 1948 (cari about what they meant
by communication. Utusan Foe flows from the right of
Melayu Bhd fos
‘Everyone has the right to freedom of v Dato Sri Di
opinion and expression’ Raja Hj
Adnan b Hj
Comments by sir: freedom of speech is the Yaakob 206
important part in democracy Muhammad Maj of COA held: the
- Power of the people hilman b restrictions by way of
- The people w their right to choose Idham v s15(5)(a) of the University
their leader (PM) kerajaan and University alleges
- In order to choose the right leader, the Malaysia Act1971 that barred
leader needs to communicate well to 2011 university students from
the people participating in election
- Therefore, here, communication is
crucial in a democratic country. Limitations
- Democratic country needs the people Parliament may impose the prohibition of
to receive opinions, give opinions, etc the questioning of (in artcicle 10(4))
- Freedom of expression and speech
must be consistent, and protected Menteri Held: that freedom in
- Its also important to know whether the Dalam Art10(1)(a) is not
gov is governing us well or not Negeri v absolute
- Eg: the expenditures of the Titular
government. The gov must let the roman A freedom of expression
people know. Whether they have Catholic to scandalise another
abused their power w the money 2013 will be subjected to the
dictates of the law
PP v Phua In my opinion there’s no
Keng Tong doubt that the right to foe Non-absolute nature of
MLJ 1986 includes communication or fowe and speech is
dissemination of apparent from the
information reading of art1092) that
- Right to access of empowers
information
Comment: you cant hide
Sir: anything that behind some rights to
correct sumn wrong
Haris COA rejected the argument Mat Held: the chapter on
Fatillah v that theres consti right to Shuhaimi Fundamental Liberties in
Suruhanjaya info. bin Shafie v the Federal Consti don’t
Pilihan Raya Held: unlike india, Malaysia Pendakwa recognise absolute
2017 doesn’t have specific Raya 2014 frredom

39
Nik Aisha Tasnim’s
Class: Dr Khairil

The words “ under the 4. Universities and university colleges act

law” must be read after 5. Communications and multimedia Act
the passage in clause(1) 1998
(a) a. The television, the internet

6. Defamation Act

Laws that can be used to restrict the freedom

of speech and expression directly/indirectly

1. Sedition act 1948

What it governs:
a. Basically what you utter what
you say on sensitive political
subjects.
b. The things you say about the
rules
c. Sect3: defines what’s seditious
tendency
S3(1)(a)- S3(1)(f)

d. Under s4 (offences): of the act

anyone responsible for a
seditious publication is liable
to a fine not exceeding
RM5000 etc

Sect4(2):
act/speech/words/publication
that’s not deemed to be
seditious
- When showing what any
Ruler did was wrong
- To point out erros or
defects in any gov
(constructive criticism)

e. Case of Mat Shuhaimi

2. Official secrets act

a. Relating to gov official
documents

3. Printing presses and publications act

a. Printed materials
b. In order to set up a printing
house
c. Theres cases relating to this
d. Sometimes there’s rules the
people say is unreasonable

40
Nik Aisha Tasnim’s
Class: Dr Khairil

Article 11 Freedom of Religion o They don’t allow to propagate

the other religion.
Art11(1)(2)
o Restrictions can only be
- Is for individual
imposed on propagation of
- With matters to professing
other religion than Islam upon
This means that a person can freely
Muslims (because it would be
CHOOSE their religion (doesn’t concern
an incitement to a crime
practice yet)
because apostacy is a crime).
- When they can CHOOSE their religion,
But the state cant do so upon
this means they can’t be COERCED to
propagations of other religions
join other religions.
to non-muslims.
- Does this article also include the right
o State authority can only
to leave religion.
restrict propagation from
- Profess means to believe in the
other religions to Muslims
religion.
- practice means to carry out acts in the
Art 11(5):
religion.
Any provision of any ordinary law which relates
- These practices can be limited under
to public order or pub health/morality may
art11(5).
restrict any religious action of any religion.
- For practice and profess the right is in
- Applies to people of all religion.
individual and collective level under
- Obvious during the pandemic
the same religion.
- U can use ordinary law to restrict
- This is different in propagating where
fundamental liberties
the right confines to collective level
with other religion since you propagate
*above are general provisions of art11
to other religion

Art11(3) The rights in Art11(1)

1. Every person has the right to profess
- To any religion
religion.
- Its for collective rights
2. Every person has the right to practice
- Rights to acquire property
his religion.
- To have their own place of worship
3. Every person has the right to
propagate their religion.
Art11(4)(5)
- Limitation of rights 1st 2nd right is confined to religion.
- The right to propagate individual 3rd right relates to spreading religion and
- The right to propagate religion to all therefore involves other parties of his faith.
people is restricted under state law
o Putrajaya= restricted by The word person is confined to adult- a person
federal law who has attained the age of majority. Can be
o Kelanatan= Kelantan laws observed in the case of Lee Susie Teoh 1986
o etc (sir always mentions this case under this
- Propagation of religion including islam article)
- People of other religion can be
prohibited from propagating the Maqsood v Ahmad and his group had
religion of ketua done Jumaat prayer without
- No federal law which restricts the Pegawai the authorisation of other
propagation of any other religion other Pengawi authorities
than Muslim Kuasa - Ahmadiyyah?
- But if the states ada restrictions based - It has been declared that
on their law, then the state law those who professes the

41
Nik Aisha Tasnim’s
Class: Dr Khairil

Ahmadiyyah belief is a Muslim, the person must

non-Muslim. have fulfilled the first
- Its to the extent that they requirement which is the
cant inherit from other recitation of the
Muslim families Shahadah.
- Many aren’t - ^this is where the (3)
comes into the picture
- But the Shahadah wasn’t
done w the consent of
the parents (tak fulfil
Lee Susie Conversion was doen by the clause 4)
Teoh 1986 kadhi of pasir Mas
- Conversion was argued to
be invalid
- The conversion was doen
without the consent of
the parents
The HC had based the Teoh Eng
decision on in the interest of Huat v
the child Kadhi Pasir
- The court had interviewd Mas &
the minor and had Anor
believed that the child
was able to make
decisions on her own Religion of Children
maturely Susie Teoh Refer previous material
facts
But the decision was
overruled by the Supreme
Shamala
Court in the 1990
Sathiyaseelan
- The reason Tun Salleh
v Dr
Abbas had delayed the
Jeyaganesh
decision purposely so that
when the court had
Hj Raimi Bin
decided the case, the
Abdiullah v
minor was already
Siti Hasnah
mature (FUN FACT!!)
Vangarama
- The SC held that the
conversion was invalid
Inderagandhi - Hindu mother of three
- The court referred to
a/p Mutho v children
Art12(3) and Art12(4)
Pengarah - Husband took the
- (3)= read together w (4)
children when they had
- Clause 4: The religion of a
a dispute (not sure if
person under the age of
they divorced) and
18 shall be decided by her
converted their children
guardian.
to Islam
- Clause 3: This is for the
- Mother brought case to
purpose of receiving
court
instructions.
- Fed court interpreted
- Supreme court says that
Art12(4) to be consent
for any person to be a
by both parents needed

42
Nik Aisha Tasnim’s
Class: Dr Khairil

to convert/ change cover leaving the

religion of the child religion.
under 18 - Bukanla takde, but its not
- Relates to several constitutionally
children. protected under this
- Court held that since article.
they were muslism when - In other words, there can
their parents were alive, be laws to restrict exiting
they are muslims the religion.

Religious rights
Apostacy
Ahmadyani - Jemaah Islam Mamat b - Court states that right to
b Ismail v - This JI was regarded as a Daud v profess religion does not
Inspector terrorist group. Majlis Agam cover leaving the religion.
general of - This group describes Islam - Bukanla takde, but its not
Police themselves as the true constitutionally protected
Muslims. under this article.
- Their purpose is to overthrow - In other words, there can be
the gov. laws to restrict exiting the
- Ahmadyani had argued this is religion.
their religious rights.
- These rights are argued also Lina Joy v Pf cant hide behind art11(1) of
in the right to overthrow the Majlis Agam the FC w/o first settling the
government. Islam issue of renunciation of her
- The court held that u can’t Wilayah religion w the religious
hide behind religion. persektuan authority which has the right to
- U can’t commit terrorist in manage its own religious affairs
the name of Islam under art11(3)(a) of FC
- How can you kill Muslims in
the name of Islam? Jenny b - They were charged/adviced
Peter by the lawyer that if you
Rights in art11 not absolute and Muzdhalifah declare that you are non-
subject to law dealing w the Abdullah v muslim you wont be
security and public order Majlis charged
Agama
Right to profess & practice Islam
religion doesn’t include the right Sarawak
to belong to a terrorist group
hiding behind the name of Islam

Halimatus Polygamy
saadiah v Zakaria - Police officer had married
PSC 1994 Abdul without the approval of his
Rahman v employer
Ketua Polis - The need for approval
Negara restricts his rights
Malaysia & - He lost the case because the
Mamat b - Court states that right to Anor 2001. court said that polygamy is
Daud profess religion does not not fundamental its just

43
Nik Aisha Tasnim’s
Class: Dr Khairil

permissible or commendable Kementerian - The menister issued

- The rights governed are Dalam negeri order saying non-
n=only for fundamental rights Malaysia Muslims shouldn’t use
(2021) the name of Allah in
order to translate their
Serban teachings
Meor Wearing a serban isn’t an - Jill Ireland won the case
Atiqulrahman obligation so it doesn’t fall then the gov appealed
b Ishak v under rights in Art11 - Not the case: Majlis
Fatimah bt Agama Islam Selangor
Sihi & Ors didn’t agree with the
2000 retraction of Appeal by
Fatimah v the Gov
Meor 2005

Purdah
Halimatus- - She has to take it off to
sadiah v PSC ensure security because she Minister of Freedom to profess and
1994 works in the public home affairs v practice ones religion is
sector/bank Jamaluddin not a license to commit
- Wearing a purdah isn’t an unlawful acts or acts to
obligation so it doesn’t fall threaten the security of
under rights in Art11 the federation

The freedom to profess n

Art11(2) practice ones religion
- You can only collect zakat from people itself is subject to the
of Muslim general laws of country as
expressly provided in cl5
The right to propagate religion (its of art11
limitations)
Facts: malay is involved w
propagating Christianity
Art11(4)

Titular roman - The use of kalimah Allah

Cathilic - The Menteri dalam
Archbishop of Negeri doesn’t allow it
Kuala Lumpur because it’s a form of
Even Muslims are restricted from
v Menteri propagation thatll cause propagating their own version of Islam
Dalam Negeri confusion
Or Mamat b Daud
- v Gov of The petitioners was
Malaysia charged for an offence
under Section 298A of the
Penal Code. They were
reported to have acted as
Jill Ireland bt - She brought several cds an unathorised Bilal,
Lawrence Bill v with contents w names Khatib and Imam without
Menteri bagi of Allah being appointed under

44
Nik Aisha Tasnim’s
Class: Dr Khairil
the Terengganu
Administration of Islamic
Law Enactment 1955 at a
Friday prayer.
ISSUE
Whether or not section
298A of the Penal Code,
being a section introduced
by an amendment Act of
Parliament (Act A549) in
1983, is invalid as being
ultra vires the
Constitution
Petitioners' Argument
it is a law which ought to
be passed not by
Parliament but by State
Legislative Assemblies, it
being a legislation on
Islamic religion according
to Article 11 clause (4)
and item 1 of List II, Ninth
Schedule
Respondents' Arguments
The section is valid
because it is a law passed
by Parliament on the basis
of public order, internal
security and also criminal
law according to Article
11, clause (5) and items
(3) and (4) of List I, Ninth
Schedule.
Fathul Bari B The first petitioner was
Mat Jahya arrested by enforcement
officers of the Negeri
Sembilan Islamic Affairs
Department for
conducting a religious talk
without a tauliah. This is
an offence under Section
45
53(1) of the Syariah
Criminal Enactment
(Negeri Sembilan) 1992.
He was charged for the
offence in the Shariah
subordinate court and the
second petitioner was
charged with aiding and
abetting him.
Issues
Whether Section 53(1) of
the Syariah Criminal
Enactment (Negeri
Sembilan) 1992 is null and
void as being contrary to
the Federal Constitution?
Whether the Syariah
Court for Negeri Sembilan
does not have jurisdiction
to try any offence under
Section 53(1) of the
Syariah Criminal
Enactment (Negeri
Sembilan) 1992?
The court dismiss the
petition with no further
order.
Section 53(1) of the
Syariah Criminal
Enactment (Negeri
sembilan) 1992 is valid.
The action of the State
Legislative Assembly of
Negeri Sembilan in
enacting the
aforementioned provision
is within its legislative
power. The objective of
such provision is clearly to
protect the Islamic
Integrity that constitutes
the precepts of Islam. The
requirement of tauliah
was indeed necessary to
stop the spread of deviant
teachings among Muslims.
Nik Aisha Tasnim’s
Class: Dr Khairil
Therefore, it could be said
that, the teaching of Islam
without a tauliah could
similarly be construed as
an against the precepts of
Islam.
Negeri Sembilan’s Syariah
Court have the jurisdiction
to try any offence under
Section 53(1) of the
Syariah Criminal
Enactment (Negeri
Sembilan) 1992. This is
because such a section
was enacted prior to
Section 2 of the Syariah
Courts (Criminal
Jurisdiction) Act 1965.
Whereas it vested the
power for Shariah Courts
to handle any cases in
regards to the offenses
against the precepts of
Islam by those people
who profess it.
Sulaiman b
Takrib
General limitations Art11(5)
Minister of Freedom to profess and
Home practice ones religion is not
Affairs v a license to commit unlawful
46
Jamalauddin acts or acts to threaten the
security of the federation
The freedom to profess n
practice ones religion itself is
subject to the general laws
of country as expressly
provided in cl5 of art11
Facts: malay is involved w
propagating Christianity
Ahmadyani - Jemaah Islam
b Ismail v - This JI was regarded as a
Inspector terrorist group.
- This group describes
themselves as the true
Muslims.
- Their purpose is to
overthrow the gov.
- Ahmadyani had argued
this is their religious
rights.
- These rights are argued
also in the right to
overthrow the
government.
- The court held that u
can’t hide behind
religion.
- U can’t commit terrorist
in the name of Islam
- How can you kill Muslims
in the name of Islam?
Rights in art11 not absolute
and subject to law dealing w
the security and public order
Right to profess & practice
religion doesn’t include the
right to belong to a terrorist
group hiding behind the
name of Islam
Nik Aisha Tasnim’s
Class: Dr Khairil

more Higher education Act 1996

legislations - Malaysian Qualifications
agency act 2007
Article 12 - The universities and
Art12(1)(a) university colleges act 1971
No discrimination against any citizen on the - The national higher
grounds of religion/ race/ descent/ pob. education fund corporation
- In the administration of any act 1997
educational institution maintained by a
public authority. Manoharan - HC: they have locus standi
- And the admission of pupils or a/l - Regarding the funding of
students or the payment of fees Malayalam school
& Anor v
Art12(1)(b) Dato’ Seri
No discrimination against any citizen on the Najib
grounds of only religion/ race/ descent/ pob –
In providing out:
- of the funds of a public authority of a
public authority financial for
education. Merdeka - Case valid, law isn’t valid
- Financial aid for the maintenance or university v - Because it took place
education of students in any Gov of before private uni was
educational institution Malaysia allowed to be established
- The petition was rejected
This includes Tertiary education and pre- and the minister of
tertiary. education announced that
- When it comes to prohibition of the rejection of the
discrimination it applies to all plaintiff’s petition was for
the following reason:
The Covers pre-tertiary levels of - Merdeka uni would use
education education under the national Chinese as the medium
act 1996 education system which instruction
(Act 550) comprises pre-school, - Meant to cater for students
primary, and secondary from Chinese independent
education as well as post- secondary schools
secondary education. - Its to be set up by the
private sector: the basis for
Act contains provisions that the set up is against
apply to the Ministry of national education policy
Higher education in the
establishment of Malay uni says the rejection
Polytechnics and community is to be null and void
colleges.
If Merdeka Uni had been est:
it would be a public authority
and its purpose would be an
official purpose within
art152(6) and would be
excluded by the parenthesis
For tertiary - The private higher
in proviso (a) to article 152(1)
education, educational institutions act
from its protection
there are - The national council of

47
Nik Aisha Tasnim’s
Class: Dr Khairil

Teoh (ada case ni kat atas)

Consequently. As the
merdeka uni proposes to give
instruction in its courses in
Chinese, whether as the only
main medium of instruction ,
the proviso would be of no Indira - Hindu mother of three
protection for that purpose. Ghandi v children
Pengarah - Husband took the
Proposal to use Chinese as Jabatan children when they
the medium of instruction Agama had a dispute (not sure
would be contrary to the Islam if they divorced) and
national education policy. Perak converted their
children to Islam
- Mother brought case
to court
- Fed court interpreted
Art12(4) to be consent
Art 152 National language by both parents
Art152(1) National language =BM needed to convert/
Art152(1)(a) No person shall be prohibited change religion of the
or prevented from using child under 18
(otherwise than for official - Relates to several
expenses), or from teaching children.
or learning, any other - Court held that since
language they were muslism
Art152(6) “official purpose” means any when their parents
purpose of the, whether were alive, they are
federal or state, and includes muslims
any public authority

Article 12(2)
- Every religious group has the right to
est and maintain institutions for the
edu of children in its own religion
- No discrimination on the grounds only
of religion in any law relating to such
institutions
Art12(3)
- No person shall be required to receive
instruction / take part in any ceremony
or act of worship of a religion other
than his own
Art 12(4)
- For the purposes of this clause
Re Susie - Child below 18 peluk islam
Art13- Right to Property
Art13(1)
- No person shall be deprived of
property save in accordance w law
(can see that its similar w art5(1) abt
natural justice)
o But 13(1) isn’t for punishment
as in art5(1), but for the
acquisition of property.
Art13(2)
No law shall provide for the compulsory
acquisition of use of property w/o adequate
compensation
o A property has been taken
away by force (he doesn’t

48
Nik Aisha Tasnim’s
Class: Dr Khairil

wanna sell it but the gov took

it)
o It’s the conflict of public
interest
o Apa apa pun the gov MUST
give cukup compensation

Art17 Everyone has the right to own

UDHR property alone as well as in Corporeal Property= the right of ownership in
association with others material things
Property that can be seen and handled
No one shall be arbitrarily - Movable property
deprived of his property - Immovable property
- Bcus they are against
capitalism. Incorporeal=
- They are in line w - Jura in re propria- propriety rights over
communism. materials as well as nonmaterial rights
- Ownership of property is o Ie: patents, trademarks
equal. - Jura in re aliena
- Communism- socialism-
capitalism Real property
- All the price is - Land and the things permanently
determined by the attached to the land
market, whether the - Things that are permanently attached
people can afford it? to the land include homes, garages,
Doesn’t matter and buildings.

Minister of Court held that the gov

finance, gov Must pay compensation as Selangor They did pilot sage service
of Sabah v they have acquired the Pilot - Gov passed a law
Petrojasa property Association v that took over the
Sdn Bhd Government company
of Malaysia - Argued: what the
Anor (1974- gov did was a
1977) denial of their own
property

Adequate compensation if
there is compulsaory
Majlis Issue: the house was built acquisition
Perbandaran on gov’s land Because theres no
P.pinang v compulsory acquisition,
Syed Ahmad - Ahmad wasn’t satisfied they don’t get right for
a/l M. Gouse bcuz they destroyed their adequate compensation
house.
- The ownership of the The property was acquired
land belongs to the gov
but bcuz the house was Goodwill (because he gave
Ahmad’s property the land voluntarily) x
constitute property within
context of art13 and

49
Nik Aisha Tasnim’s
Class: Dr Khairil

therefore theres no citizen of his livelihood

question of deprivation of - Adequate
property in this case compensation is one
method of remedy
to remedy the harm
Station A hotel was in a station occasioned by such
Hotels - Hotel looked like a action pursuant to
Berhad v train art13 of FC which is
Malayan - taking a property of
Railway someone
(1977)
Arumugam
Pillai v Gov
of Malaysia
Batu Bagi v Gov Deprivation of property
of Srwk rights were unlawful
Right to Adequate Compensation - It fell within the
Gov of Adequate compensation if ambit of law
Malaysia there is compulsaory occupied under
v Selangor acquisition customary right and
Pilot Because theres no it must be
Association compulsory acquisition, they compensated
don’t get right for adequate
compensation

The property was acquired

Compulsory Acquisition of Land
Goodwill (because he gave - Land acquisition act 1960/ land
the land voluntarily) x acquisiton Ordinance Part IV Sarawak
constitute property within land code
context of art13 and - Using power embodied in land
therefore theres no question acquisition sact, gov can acquire land
of deprivation of property in for purposes of
this case
Right to a hearing
- Under the Land Acquisition act
Kerajaan When state action has the - Not for the whether the gov can
Negeri effect of unfairly depriving a acquire the land or not
Johor v citizen of his livelihood - Non issue: gov will and can acquire
Adong - Adequate compensation - Right to hearing applies after the
Kuwau is one method of remedy acquisition or during the process
(mentioned to remedy the harm - The hearing only for when the
in occasioned by such determining the price of the land that
right to life) action pursuant to art13 is taken not whether the gov can take
of FC which is taking a it or not
property of someone
-

Land and Native’s Rights

Adong Kuwau When state action has the
effect of unfairly depriving a

50
Nik Aisha Tasnim’s
Class: Dr Khairil

Special Powers Against against subversion, -

organised violence
Subversion organised violence, and acts and crimes
and acts and crimes prejudicial prejudicial to the
public
to the public and emergency Preventive detention laws
powers Executive power to detain people without
fair trial
Must know what is ordinary power? Article 151: restrictions on preventive
= executive/legislative/judicial power that we detention
learn above - Detention must be done in
Status of ordinary power? accordance w art149/art150
= they can only be used by the gov according
to the fed cons, cant be inconsistent w the fed Gov can give power to executive to detain a
cons > same goes for the executive person without trial. (under art149)
- This is how we control/supervise the - Hence habeas corpus is irrelevant
executive legislative and judiciary - Habeas corpus is only valid when the
detention is invalid, unconstitutional.
Art151= doesn’t give any power but gives - The gov can also give power to gov to
protection against being wrongly detained(???) detain people w/o trial. A wider one in
art150
Special Powers conferred by the fed Cons to - We can’t question the detention.
the fed Legislature. (Art 149) -
- Special powers give extraordinary
powers Laws Made under Art149
- Against ordinary norms Internal security Act ISA (repealed)
- Against ordinary value Dangerous Drugs (Special Prveentive
- So we find that special powers are Measures ct 1985
constitutional even If it infringe certain Dangerous Drugs (Forfeiture of Property
rights Act 1988
Security Offences (Special Measrues) Act
Why is it extraordinary? 2012
- Valid even if its inconsistent with rights Prevention of Crime (Amendment Act
under art 5,9,10,13
Preventive Detention
conditions under art149 Preventive/ Criminal Detention
1. (clause 1) The special powers under Administrative
art149may only exercised under one or detention
more the circum stated in (1) Detention w/o Sufficient for a
2. A recital that refers to at least one of the charges or trial person
reasons or circumstances stated in art authorised by
14991) must be included in the legislation administrative order Pre-trial: 1st
a. The reason why law is rather by than by detention is within
made must be mentioned judicial decree 24 hours(?)
in legislation - Detention is done Trial process:
b. Law must be justified by to prevent - Order made by
any of the reasons - Ie: during covid, the judge
people are - Once found
prevented from guilty, he will be
149 150 spreading covid detained
Special powers Emergency powers - It can be used -

51
Nik Aisha Tasnim’s
Class: Dr Khairil

solely for - Their purpose is to

prevention, overthrow the gov.
danger to state or - Ahmadyani had
public security argued this is their
posed by a religious rights.
particular person - These rights are
whose release argued also in the
would likely right to overthrow
threaten the the government.
security of the - The court held that u
state and the can’t hide behind
ordinary course of religion.
life. - U can’t commit
- The goal of terrorist in the name
administrative of Islam
detention is - How can you kill
prevention. A diff Muslims in the name
situation of Islam?
compared to
criminal detention. Rights in art11 not absolute
- and subject to law dealing w
the security and public order
Inconsistent w Art 5
Right to profess & practice
Minister of Freedom to profess and religion doesn’t include the
Home practice ones religion is not a right to belong to a terrorist
Affairs, license to commit unlawful group hiding behind the
Malaysia & acts or acts to threaten the name of Islam
Anor v security of the federation
Jamaluddin
bin The freedom to profess n
Othman practice ones religion itself is
1989 subject to the general laws of
country as expressly provided
in cl5 of art11
Right of arrested person , can be
Facts: malay is involved w
deprived
propagating Christianity
- Pursuant to laws made under art149
- Like the dangerous drugs act (special
preventive measures)
Ahmad Terrorist
- Part II: powers of preventive detention
Yani bin - Says they have the right
- Section 3>
Ismail & to est Islamic state
- Security offences (special Measures)
Anor v through violence
Act
Inspector
- Part II Special powers
General of - Jemaah Islam
- Section 4
police & - This JI was regarded
ors 2005 as a terrorist group.
- This group describes Summary
themselves as the Unlawful detention/arrest= art592)
true Muslims. Lawful arrest
Art151; restrictions on preventive detention

52
Nik Aisha Tasnim’s
Class: Dr Khairil

Art 151(a)= right of a detainee - Internal mechanism

- Where any law or ordinance made or - Doesn’t involve court as opposed to
promulgated in pursuance of this Part habeas corpus where it involves the
provides for preventive detention— (a) court
the authority on whose order any - Art 151(1)(b)
person is detained under that law or o Only applicable to Malaysian
ordinance shall, as soon as may be, citizen.
inform him of the grounds for his o Lays out 2 detentions.
detention and, subject to Clause (3), Detention for a period not
the allegations of fact on which the exceeding 3 months
order is based, and shall give him the
opportunity of making representations Re Tan Boon Technical defects/non
against the order as soon as may be; Liat & Anor compliance with procedural
Et Al 1977 requirement sin relation to
First right in art151(1)(a) the detention/ failure to
- These rights can be claimed by any comply with a condition
persons precedent (procedural
- The authority shall as soon may be, grounds)
inform him of his detention
- Be informed (must be given) a. Non compliance with
- Be informed of the allegations of fact procedure can make
- Exception in cl(3) detention unlawful
o Authority may refuse to
disclose facts if it affects public
security

Mohamad Although the court will not

Ezam case question the executive’s decision
as to what national security
requires, yet the court may and
will examine whether the
executive decision is in fact
based on considerations of
national security.
the police interrogation and
investigations conducted on the
appellants after their arrest had
no connection with the
respondent’s press statement
that the appellants had acted or
was about or likely to act in a
manner prejudicial to the
security of Malaysia.
the appellants’ detention by the
respondent, purportedly under s.
73 ISA, was unlawful.
Second right in 151(1)(a)
- The authority shall give opportunity ….
Lim Thean
Lee v
Inspector
general of
Police & ors
1991
Article 150- Emergency
- One of the three articles in 5 and 11
- Pertaining to special powers
- Another art is art149 (power:
subversion, crimes)
- Another art is 151 that relates to
art149 and art150
- Art151 related because only those arts
allow the parliament to detain a
person w/o trial
- Preventive detention law can only be
passed pursuant to art149 and art150
- Cond: must relate under art149 (1)(2)
Now our focus will be in art150
- A long article. More than two pages
- Must know every clause under art150

53
Nik Aisha Tasnim’s
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Meaning of emergency (grave emergency) Emergency is a state of affairs.

- Stated in art150 - Are you in a state of emergency?
- ‘a grave emergency exists whereby the - May be subjective
security/ economic life or public order - But in law, we need an objective
in the federation or any part thereof is meaning.
threatened.’ - That’s why we must have a good
understanding of what a state of
Defined in Stephen Kalong Ningkan 1968 emergency
- The word ememrgency as used in - This is a problem too because
art150(1) cant be confined to the emergency isn’t stated specifically
unlawful use or threat of force in any stated/defined in the FC as its very
of its manifestations general
- There can be other circum that doesn’t
involve use of force
- An emergency must be grave and must When is emergency (obj)
constitute an emergency to the - When its issued/there’s a proclamation
federation or part of it by the YDPA
- It covers a wide range of situations and - When there’s an existing or valid
occurrences inc diverse events such as proclamation of emergency being
wars, famines, earthquakes, floods, made
epidemics, and the collapse of civil - “I cant find anything to –“(irrelevant)
government. - Why the need for proclamation? To
- Lord Dunedin observed in Bhagat signify when the Emergency power can
Singh: a state of emergency is be used and when can it no longer be
something that doesn’t permit of any used
exact definition: it connotes a state of
matters calling for drastic action.
State of Emergency State of
Timelines of emergency emergency power can be emergency
*our country gained independence during begins exercised ends
emergency during this
period
Here, there’s This is where
1948- the Malayan emergency
emergency emergency
1960
power. stops
1963= Indonesian confrontation
3 beneficiaries
of emergency:
1966= Sarawak consti crisis (issued in
Srwk) YDPA
- Stephen Kalong Ningkan Parliament
related Fed cabinet
Proclamation Make law= By virtue of:
1969= racial Riots of Executive (4) Annulment
Followed with 13th May racial Emergency of revocation
riots Art150(1) of
1977= Kelantan Consti Crisis Proclamation
(issued in Kelantan) YDPA
2021= Malaysian Proclamation Art (2B)
Emergency 2(2C)
- Because of covid19 (3)
-

54
Nik Aisha Tasnim’s
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Who can proclaim emergency?
- YDPA only
- Art150(1)
Discussions on the clauses
Art150(1) - Can be made when the
situation causes hardship
- When he is satisfied that a
grave hardship exists
(security etc is threatened
Emergency ordered when
YDPA is satisfied there’s grave
danger
Art150(2) - Emergency proclamation
can be done before the
actual occurrence that:
- Threatens the security or
the economic life
- Or the public order etc
Emergency can as long as
YDPA satisfied theres
imminent danger
Art150(2A) What power to YDPA shall it
be conferred. What power it
includes
- In proclamation there
must be stated a
PLACE and TIME the
proclamation shall
take place
- So upcoming emergency
proclamation shall be done
confined to those
limitations that was stated
- But overall, YDPA has the
power to order
Proclamations on diff
grounds and whether or
not there’s
proclamations/proclamatio
n already issued under
clause 1
Art 150 (2B) (2B) If at any time while a
Proclamation of Emergency is
in operation, except when
both Houses of Parliament are
sitting concurrently, the Yang
di-Pertuan Agong is satisfied
that certain circumstances
55
exist which render it
necessary for him to take
immediate action, he may
promulgate such ordinances
as circumstances appear to
him to require.
YDPA can make laws during
emergency
1983 Consti Amendment
In this year, the PM during that time had
supported this amendment, which is to
transfer the power of passing the proclamation
to the YDPA.
- That’s why its said that if the PM is
satisfied that a grave emergency exists,
he shall advice the YDPA in the
issuance of emergency
- Rulers objected to this ofc
1983 also had the amendments to take away
the YDPA’s veto power to allow law.
It had controversies because the amendments
would result in a lot of concentrated powers in
the hands of the prime minister.
Proclamation of Emergency: The
duration & Termination
An emergency so declared continues in force
indefinitely unless its revoked by the YDPA or
annulled by a resolution by both Houses of
Parliament. [Art150(3)]
- Goo
Emergency Power
a) The power
b) Executive power
1. The power to make law during an
emergency.
a. Agong’s Power
b. Parliament’s power
Special features of Emergency Law
Nik Aisha Tasnim’s
Class: Dr Khairil
Power to make law is given to YDPA
(make ordinances).
That’s why when we look at power of
legislation we say its power to make
law. But for Agung, it’s the power to
PROCLAIM ordinances.
There’s a legislative process.
Process means tabling a bill.
Art150 YDPAA empowered during
(2B) pendency of the emergency
to issue ordinances which
have the force of law.
States exactly when power
can be exercised/ when can
Proc of Emer is in operation.
If at any time while the
proclamation of emergency is
in operation, except when
both Houses of Parliament
are sitting concurrently, the
YDPA is satisfied that certain
circum exist which renders it
necessary for him to take
immediate action, he may
promulgate such ordinances
as circum appear him to
require.
Art150 What is concurrently?
(9)
For this Art, the houses of
Parliament shall be regarded
as sitting only if the members
of each Houses are
respectively assembled
together and carrying out the
business of the House.
Discusses in Teh Cheng Poh v
PP 1979
Anor Circumstances appear to him
issue w to require (What satisfies the
Art150 YDPA// person that advise
him)
- YDPA has discretionary
power in proclaiming
emergency.
- But this doesn’t mean the
56
YDPA has the power to rule
the country personally.
- But it’s done with the
advice of cabinet??
(executive)
When executive power is in
control of making laws, its
against the doctrine of
separation of powers.
Art150 Says that what is
(2C) promulgated in Art150(2B)
has the same force and effect
as if its an Act of Parliament.
It shall continue in full force
until its revoked under
clause(3) or until it lapses
under clause(7).
The power of the YDPA to
promulgate ordinances
under clause(2B) may be
exercised in relation to any
matter w respect to which
the Parliament has power to
make laws regardless of the
legislative/ other procedures
required to be followed (like
proportion of total votes
required in either Houses).
Whats the power of
parliament to make law
(kena faham ni dulu because
that’s the extent of power
the YDPA can make law on
during emergency)
Additional notes:
2021, the emergency was
announced by Cabinet. Sir
says its unconstitutional
because its not binding. YDPA
is supposed to do so.
Art150 Subject to clause(6A) when a
(5) Proclamation of Emergency
is in force, Parliament may
make laws on any matter
Nik Aisha Tasnim’s
Class: Dr Khairil
(but with regards to
concurrent list/state list/fed
list) -> contrast with YDPA
because the cabinet behind
the YDPA/ and YDPA himself
covers everything, theres no
division of power.
Art 150 (6) Subject to Clause (6A), no
(6) provision of any ordinance
promulgated under this
Article, and no provision of
any Act of Parliament which
is passed while a
Proclamation of Emergency is
in force and which declares
that the law appears to
Parliament to be required by
reason of the emergency,
shall be invalid on the ground
of inconsistency with any
provision of this Constitution.
Art150 (6A) Clause (5) shall not
(6A) extend the powers of
Parliament with respect to
any matter of Islamic law or
the custom of the Malays, or
with respect to any matter of
native law or customs in the
State of Sabah or Sarawak;
nor shall Clause (6) validate
any provision inconsistent
with the provisions of this
Constitution relating to any
such matter or relating to
religion, citizenship, or
language.
2. Executive power during emergency
Special Feature of Emergency Law
Art150(6) subject to clause (6A):
- No prov of any ordinance under this
Article
- No prove of any Act of Parliament
which is passed while a proclamation
of Emergency is in force and which
57
declares that the law appears to
Parliament to be required by reason of
emergency
*shall be invalid on the ground of
inconsistencies w any prov of the consti
Case:
Kam Teck No law under art150 shall be
Soon invalid on the ground of
inconsistencies w any prov of
the consti
Limitation
Art150(6A) (6A) Clause (5) shall not extend
the powers of Parliament with
respect to any matter of Islamic
law or the custom of the
Malays, or with respect to any
matter of native law or customs
in the State of Sabah or
Sarawak; nor shall Clause (6)
validate any provision
inconsistent with the provisions
of this Constitution relating to
any such matter or relating to
religion, citizenship, or
language.
Art150(7) (7) At the expiration of a period
of six months beginning with
the date on which a
Proclamation of Emergency
ceases to be in force, any
ordinance promulgated in
pursuance of the Proclamation
and, to the extent that it could
not have been validly made but
for this Article, any law made
while the Proclamation was in
force, shall cease to have effect,
except as to things done or
Nik Aisha Tasnim’s
Class: Dr Khairil

omitted to be done before the Art14(1)(b) Part II of the 2nd schedule

expiration of that period. Regist Person born after Malaysia
ration

Registration
Art15 Registration of wife of citizen
Executive power (1) Subject to Article 18, any
Art150(4) - While PoE is in force, married woman whose husband
executive authority of is a citizen is entitled, upon
the federation shall making application to the
extend to any matter Federal Government, to be
within the legislative registered as a citizen if the
authority of state marriage was subsisting and the
husband a citizen at the
beginning of October 1962
Immunity
Art150(8) 2- Subj to art18
- Satisfaction of the YDPA under clause 1
and clause2 is final Art15A Subject to Article 18, the
- No court shall have jurisdiction Federal Government may, in
such special circumstances as it
thinks fit, cause any person
under the age of twenty-one
Citizenship years to be registered as a
Chapter 1- Acquisition of citizenship citizen.
- Art14- Art22
Art16 Subject to Article 18, any person
Chapter 2- Termination of citizenship of or over the age of eighteen
- Art23-Art28A years who was born in the
Federation before Merdeka Day
Chapter 3- Supplemental is entitled, upon making
- Art29-Art31 application to the Federal
Government, to be registered as
The principles under here: a citizen if he satisfies the
1. Jus Soli Federal Government—
2. Jus Sanguinis
3. Naturalisation (a) that he has resided in the
Federation during the seven
Acquisition of citizenship years immediately preceding
Citizenship of Malaysia may be obtained by the date of the application, for
1. Operation of law periods amounting in the
2. Registration aggregate to not less than five
3. Naturalistion years;
4. Incorporation of Territory
(b) that he intends to do so
Operation of law (automatic) permanently;
Art14(1)(a) part I of the 2nd schedule
who is a citizen (c) that he is of good character;
person born before Malaysia Day and

58
Nik Aisha Tasnim’s
Class: Dr Khairil
(d) that he has an elementary
knowledge of the Malay
language.
Art16A Subject to Article 18, any person
of or over the age of eighteen
years who is on Malaysia Day
ordinarily resident in the State
of Sabah or Sarawak is entitled,
upon making application to the
Federal Government before
September 1971, to be
registered as a citizen if he
satisfies the Federal
Government:
(a) that he has resided before
Malaysia Day in the territories
comprised in those States and
after Malaysia Day in the
Federation for periods which
amount in the aggregate to not
less than seven years in the ten
years immediately preceding
the date of the application, and
which include the twelve
months immediately preceding
that date;
(b) that he intends to reside
permanently in the Federation;
(c) that he is of good character;
and
(d) except where the application
is made before September
1965, and the applicant has
attained the age of forty-five
years at the date of the
application, that he has a
sufficient knowledge of the
Malay language or the English
language or, in the case of an
applicant ordinarily resident in
Termination of citizenship
Sarawak, the Malay language,
A citizen may voluntarily renounce his
the English language or any
citizenship or may be deprived of it by the Gov.
native language in current use in
Sarawak.
Voluntary Renunciation of Citizenship
59
Art18 (1) No person of or over the age
of eighteen years shall be
registered as a citizen under this
Constitution until he has taken
the oath set out in the First
Schedule.
(2) Except with the approval of
the Federal Government, no
person who has renounced or
has been deprived of citizenship
under this Constitution or who
has renounced or has been
deprived of federal citizenship
or citizenship of the Federation
before Merdeka Day under the
Federation of Malaya
Agreement 1948 shall be
registered as a citizen under this
Constitution.
(3) A person registered as a
citizen under this Constitution
shall be a citizen by registration
from the day on which he is so
registered.
Art19 (1) Subject to Clause (9), the
Federal Government may, upon
application made by any person
of or over the age of twenty-one
years who is not a citizen, grant
a certificate of naturalization to
that person if satisfied— (a)
that— (i) he has resided in the
Federation for the required
periods and intends, if the
certificate is granted, to do so
permanently; (ii) (Repealed);
(b) that he is of good character;
and (c) that he has an adequate
knowledge of the Malay
language.
Nik Aisha Tasnim’s
Class: Dr Khairil
Art23(1) Termination of citizenship
(1) Any citizen of or over the age
of twenty-one years and of
sound mind who is also or is
about to become a citizen of
another country may renounce
his citizenship of the Federation
by declaration registered by the
Federal Government, and shall
thereupon cease to be a citizen.
Art23(3) (3) This Article applies to a
woman under the age of
twenty-one years who has been
married as it applies to a person
of or over that age.
Cases
Kung Aik v Order of banishment set aside
PP 1970 because he is a citizen and
citizen cant be banished
Re Hoon Tye Not banishable because citizen
Wan 1965 (used to be Singaporean but
became Malaysian by operatio
of law)
Kuluwante v
Gov
Malaysia
1978
Re meenal
Muniandy
1980
60
Deprivation of citizenship
Article 24: Deprivationn fo citizenship on
Deprivation acquisition exercise of foreign
citizenship.
Art 25 Deprivation of citizenship by
registration under art16A art17
of naturalisation
Art26 Other provisions for deprivation
citizenship by registration or
naturalistuion
Art 26A “ of child losing citizenship
Restrictions on Deprivation of Citizenship
Art26B(2) (2) No person shall be
The deprived of citizenship under
limitation of Article 25, 26 or 26A unless
deprivation the Federal Government is
satisfied that it is not
conducive to the public good
that he should continue to be
a citizen; and no person shall
be deprived of citizenship
under Article 25, paragraph
(b) of Clause (1) of Article 26,
or Article 26A if the Federal
Government is satisfied that
as a result of the deprivation
he would not be a citizen of
any country.
Procedure for deprivation of citizenship by
the government
Art27 (1) Before making an order
under Article 24, 25 or 26, the
Federal Government shall give
to the person against whom the
order is proposed to be made
notice in writing informing him
of the ground on which the
Nik Aisha Tasnim’s
Class: Dr Khairil
order is proposed to be made
and of his right to have the case
referred to a committee of
inquiry under this Article.
Mak Sik App is citizen by operation of
Kwong v law under art14
Minister of - Order made against him
Home because he was alleged
affairs to have ties with foreign
country chine (exchange
infos)
Constitutional Amendment
Loh Kooi The framers of our consti
Choon prudently realise that future
context of things and
experience would need change
in the consti, and they
accordingly armed the
Parliament w the ‘power of
formal amendment’.
Raja Azlan Shah:
The vanity and presumption of
governing beyond the grave is
the most ridiculous and insolent
of all tyrannies.
- Man has no property in man
neither has any generation
or property in the
generations which are to
follow. It is the living and not
the dead that are to be
accommodated.
- Shows that the law relevant
to us may not be relevant
for the people in the future.
Other Raja Azlan Shah FJ:
61
principles Our consti prescribes 4 diff
from Loh methods for amendment of the
Kooi diff provisions of the
Choon constitution.
(four methods are describe after
this, but use this case to est
what are the four methods)
Reid Report
- The method of amending the
constitution shud neither be so
difficult to produce frustration nor so
easy as to weaken seriously
Why four procedures?
- The process of amendment is only
according to one
Art159 (1) Subject to the following
provisions of this Article and to
Article 161E the provisions of
this Constitution may be
amended by federal law.
Art159(3) General requirement
Art159(4) Exclusion from clause 3
Provision voered by clause ni
doesn’t need to be covered by
the ones in clause 3
Art159(5) Includes the consent of rulers
along with the general
requirement
Art161E(2)// General requirements along w
(4) consent of sabah n sarawak
Loh Kooi Choon. Raja Azlan Shah further
elaborated:
Our consti presicribes 4 diff methids of
amendment of different provisions of the
consti:
1. Some parts of the consti can be
amended by simple majority of houses
of parliament.
2. The amending clause (5) of article 159
which requires a 2/3 maj of both
houses of parliament and the consent
of the CoR
Nik Aisha Tasnim’s
Class: Dr Khairil

3. The amending clause (2) of article 161E 1948 Agreement clause

which is of special interest to East 153
Malaysia and which

Independence
1st Art159(3) Doctrine of sep of powers
Method: General amendment Principles of check and balance
The judge as the guardian of the constitution
2nd Art159(5) - As we know the law can be interpreted
Method in many ways, but only the courts
Laws enacted w this interpretation is binding
- Art10(40 from the judgement we can see some guides in
- Laws passed under interpreting
art10(4)= this
- Part III (Art14-Art31)
- Art38
On being generous in interpreting:
- Art63(4)
- Art70 Sukma - Its language must be
- Art71(1) Darmawan accordingly receiving a broad
- Art72(4) Samitaat v and liberal construction to
- Art152 Ketua advance the intention of its
- Art153 Pengarah frramers- as lock Diplock:
- Art159(5) Penjara - in Ag v Gamvia v Momodou
Malaysia Jobe
Art38(4): no law directly - A consti
affecting the privileges, - A court should sympathise w
position, human rights and the rights
should be given to those who
3rd Method Art161(2) and Art161(4)
they seek to protect.
+the concurrence of the YDP
Negeri of the State of Sabah and
The court reminded itself: in
Sarawak.
interpreting the consti generally
4th Method Art159(4)
and liberally, it must observe the
- Exception (art159(3))
limitations.
- Subject to Art161E
- The court isn’t entitled to
Provisions excluded from clause
stretch the language of
(3)
the enactment in the
interests of any legal or
constitutional theory or
even for the purpose of
Constitutional Interpretation supplying omissions or of
correcting surpassed
Power to interpret the constitution. errors (As per gwyer CJ

Before independence *court cant make law.

Johore (A sultanate Interpreting the law is not the
Protected stat) judicial duty.
Consti of Johore
Anchom bt Lampong Nordin b - Interpretation of the consti
(1940) salleh v calls for a generous
Federation of Malaya Federation of Malaya Dewan interpretation avoiding what
Undangan has been called the austerity

62
Nik Aisha Tasnim’s
Class: Dr Khairil

Negri of tabulated legalism suitable Menteri from earlier stand

Kelantan to give to individuals the full Othman
1992: measures bin
Baginda v
Dato Ombi
Syed

Kelantan v Theres a few considerations

Fed of which must be taken into Phang Chin An expression appearing in the
Malaya account in interpreting the Hock v PP same or diff provisions of a
Federal Constitution: 1980 constitution may bear the
- The first that although same or diff meaning acc to the
the consti fo context in which its used.
- The second limb: is that
consti is primarily to be
interpreted within its
own walls and not in the
light of analogies drawn
form other countries.
- Our consti has to be
interpreted based on our
own experience. (Sui DYTM Use of Hansard as an aid to
Generis) Tengku interpretation
Idris Shah v
Dikim

Loh Kooi Every consti is sui generis: a

Choon class by it self. It must be Pith and Substance
interpreted within its own four Mamat b
walls Daud v Govt
of Malaysia
Raja Azlan Shah: Our consti
now stands on its own

Kerajaan
Malaysia v
Badan
Peguam
Malaysia

Dato - There is a provisions to depart

63