Introduction To Political Science - PAD 120/ Semester 2

1.1 INTRODUCTION

What is constitution? What is the fundamental of liberties? These two things are somehow connected

and are the two most important aspect in Malaysians government both in the past and the present.

Constitution is the fundamental law, written or unwritten, that establishes the character of a

government by defining the basic principles to which a society must conform; by describing the

organization of the government and regulation, distribution, and limitations on the functions of different

government departments; and by prescribing the extent and manner of the exercise of its sovereign

powers. Constitution is also a legislative charter by which a government or group derives its authority

to act. The concept of a constitution dates to the city-states of ancient Greece. The philosopher

Aristotle (384322 b.c.), in his work Politics, analyzed over 150 Greek constitutions. He described a

constitution as creating the frame upon which the government and laws of a society are built.

According to Aristotle in his book, Politics, a constitution may be defined as an organization of offices

in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and

the nature of the end to be pursued by the association and all its members is prescribed. Laws, as

distinct from the frame of the constitution, are the rules by which the magistrates should exercise their

powers, and should watch and check transgressors. Different forms and levels of government may

have constitutions. All 50 states have constitutions, as do many countries including Japan, India,

Canada, and Germany. It is also common for nongovernmental organizations and civic groups to have

constitutions. In its ideal form, a constitution emanates from the consent and will of the people whom it

governs. Besides establishing the institutions of government and the manner in which they function

toward each other and toward the people, a constitution may also set forth the rights of the individual

and a government's responsibility to honor those rights.

Fundamental liberties are rights and freedoms that we have as human beings. Some

fundamental liberties are set out in the Constitution. Because these rights and freedoms are set out in

the Constitution, they are said to be guaranteed and cannot be taken away from us unless the

Constitution itself allows it. Fundamental liberties is also a name given to the freedoms that completely

protect the individual from government. Fundamental liberties set limits for government so that it

cannot abuse its power and interfere with the lives of its lives of citizens.

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 Introduction To Political Science - PAD 120/ Semester 2

1.2 MALAYSIA FEDERAL CONSTITUTION

The Federal Constitution of Malaysia is considered as the supreme law in Malaysia. It is actually

formed after the Constitution of the Federation of Malaya. The Constitution of the Federation of Malaya

is the foundation of the Federal Constitution of Malaysia today. It is drafted by Reid Commission that

headed by Lord William Reid in order to formulate a constitution for the preparation of a fully self-

governing and independent Federation of Malaya.

Eventually, the threat of Communist uprising spread through the Malaya throughout the post

Second World War years and 1950s had affected the formulation of The Constitution of the Federation

of Malaya. And yet, the growth of Malay Nationalism had contributed many alternative ideas on the

shape of Malayan nation that may have resulted in shaping a government that is quite different from

the Western country model. Therefore, Reid Commission had sought the viewpoints from several

political parties, non-political organisations and individuals in order to find an appropriate government

structure that only suits for our country. The report of Reid Commission was published in February

1957. In its report, the Commission suggested that the Constitution should protect individuals rights

and ensure a democratic way of living. In order to achieve the objective of democratic and equal

rights, Reid Commission formulate the Constitution by giving significance to four vital features in the

constitution which are federalism, separation of powers, entrenched human rights and constitutional

amendment process.

The Reid Commission attempted to devise the constitution by adapting the British and Indian

constitutional concepts. The Reid Commission tried to strike the balance between the rights and

restrictions after concerning about the situation of Malaya at that moment. Apparently it is not as easy

as we think. The absolute freedom on fundamental liberties as the constitution at British is not given in

the federal constitution in Malaysia. This is mainly because of the multi-racial society and the rebellion

of the communist during the age. In order to remain the public order, the freedom that given is

restricted.

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 Introduction To Political Science - PAD 120/ Semester 2

By looking at these features, the Reid Commission's recommendations on fundamental rights

were thus modified, and appear as Part P of the Federal Constitution entitled "Fundamental Liberties".

There are as followings:

Article 5 - Life and Liberty of the Person.

Article 6 - Prohibition of Slavery and forced labour

Article 7 - Protection against retrospective criminal and repeated trials.

Article 8 - Equality.

Article 9 - Prohibition of Banishment and freedom of movement.

Article 10 - Freedom of speech, assembly and association.

Article 11 - Freedom of religion.

Article 12 - Right to education.

Article 13 - Right to property.

Although the federalism and constitutional monarchy concepts are being adapted, Reid

Commissions report also contained the provisions protecting special rights for the Malays such as

quotas in admission to higher education and the civil service and the official religion of the federation is

Islam. The status of the Malay language is also being recognized and the right to vernacular education

in Chinese and Tamil would be protected in the report.

As you seen, the Reid Commission sought the fundamental individual rights as an essential

element for a democratic country. For instance, the guarantees of fundamental liberties of Malaysians

in the Federal Constitution cannot be taken away recklessly. As in Article 10, every single thing that we

say is guaranteed by the freedom of speech and expression within the limits in the constitution. It

allows people to express an opinion on any issue freely without having to fear about outcome.

Obviously the fundamental liberties that had been given in the Federal Constitution are balance in

order to embrace and preserve our multi-racial society.

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 Introduction To Political Science - PAD 120/ Semester 2

1.3 FUNDAMENTAL OF LIBERTY

The Fundamental rights of a person are guaranteed by the Constitution. Since the Fundamental rights

are written in the Federal Constitution, it cannot altered in ordinary way but requires two third majoriy

of the total number of the Legislature. The Fundamental right of a person is not guaranteed by

ordinary law, but by the part II of the Federal Constitution. Some of the liberties are absolute, while

others are subject to the qualification which makes them more illusionary than real. Fundamental

liberties are those freedoms which are, or should be, guaranteed to persons to protect an area of non

interferefrom others, particularly power holder and legal authorities. The acts that impose restrictions

on fundamental liberties are the Internal Security Act 1960, the Universities & Universities Colleges Act

1971, the Police Act 1967, the Presses and Printing Act, the Official Secret Act 1957, and other acts.

1.3.1 ARTICLE 6- NO SLAVERY

Article 6 of the Federal Constitution provides that no person shall be held in slavery. This

article also highlighted that all forms of forced labour are prohibited, but Parliament may by law

provide for compulsory service for national purposes. According to this article, Work or service

required from any person as a consequence of a conviction or a finding of guilt in a court of

law shall not be taken to be forced labour within the meaning of this Article, provided that such

work or service is carried out under the supervision and control of a public authority. Where by

any written law the whole or any part of the functions of any public authority is to be carried on

by another public authority, for the purpose of enabling those functions to be performed the

employees of the first-mentioned public authority shall be bound to serve the second-

mentioned public authority, and their service with the second-mentioned public authority shall

not be taken to be forced labour within the meaning of this Article, and no such employee shall

be entitled to demand any right from either the first-mentioned or the second-mentioned public

authority by reason of the transfer of his employment. It can be concluded that Article 6 of the

Federal Constitution provides that slavery and forced labour are prohibited. In this article , it

was stated that no person shall be held in slavery and all forms of forced labour are prohibited,

but the parliament may by law provides for a public service for national purposes.

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 Introduction To Political Science - PAD 120/ Semester 2

1.3.2 ARTICLE EQUALITY

.According to this article, all persons are equal before the law and entitled to the equal

protection of the law. This article also cited that Except as expressly authorized by this

Constitution, there shall be no discrimination against citizens on the ground only of religion,

race, descent, place of birth or gender in any law or in the appointment to any office or

employment under a public authority or in the administration of any law relating to the

acquisition, holding or disposition of property or the establishing or carrying on of any trade,

business, profession, vocation or employment. Apart from that, there shall be no discrimination

in favour of any person on the ground that he is a subject of the Ruler of any State. This Article

also suggested that no public authority shall discriminate against any person on the ground

that he is resident or carrying on business in any part of the Federation outside the jurisdiction

of the authority. This Article does not invalidate or prohibit:

any provision regulating personal law;

any provisions or practice restricting office or employment connected with the affairs of

any religion or of an institution managed by a group professing any religion, to

persons professing that religion;

any provision for the protection, well-being or advancement of the aboriginal peoples

of the Malay Peninsula (including the reservation of land) or the reservation to

aborigines of a reasonable proportion of suitable positions in the public service;

any provision prescribing residence in a State or part of a State as a qualification for

election or appointment to any authority having jurisdiction only in that State or part, or

for voting in such an election;

any provision of a Constitution of a State, being or corresponding to a provision in

force immediately before Merdeka Day;

any provision restricting enlistment in the Malay Regiment to Malays.

Basicly this article Article 8 of the Federal Constitution discuss about equality. It was stated

that all person are equal before the law. Everybody must be granted with their rights to be

treated fairly by the law. As in case Rethana v Government Malaysia, it was held that

Rethana suing the SUSCO cannot sue their employers if any accident happens in their

field of work.

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1.3.3 ARTICLE 10- FREEDOM OF SPEECH, ASSEMBLY AND ASSOCIATION

Article 10 of the Federal Constitution provides on the Freedom of Speech, Assembly and

Association. It provides that every person has their own right to speech and expressed

their opinion and has peaceful assemblies and associations. The speech, assembly and

associations must be safe and are held without any weapons. However the freedom of

speech is restricted to the speech which might be sensitive to the public interest. As in

case Mahdevan v Public Prosecutor, the licence for the public meeting to discuss the

result of M.C.E Examination and the status of Bahasa Melayu as the national language

have been pulled back, the party appealed and saying that it has contravened their right of

freedom of speech, it was held that the condition on the license of public meeting was not

contravened of Article 10.

1.3.3.1 Laws on Freedom of Assembly

While article 10(1)(b) gives the right to citizen to assemble peaceably and without

arms. Like under clause (a), this right also subject to clause (2), (3) and (4). Does it

means any kind of assembly and gathering which is done peacefully is lawful or may a

peace assembly be considered unlawful just because there is other law restricts that

assembly? In Chai Choon Hon v Ketua Police Daerah Kampar [1986]2 MLJ 203, the

peaceful assembly was restricted by Police Act 1967. In that case the act restricted on

the number of speakers and the court held that the restriction was void as it was

unreasonable.

Looking at same ground, can a peaceful demonstration be done by citizen who

disagrees to any government policy? For example what has been done during

BERSIH assembly on 2008 and ANTI PPMSI on 2009. On what basis police has

right to prevent the people from holding such assembly? If the police argued that the

place was not suitable since it was held in a crowded place so is it will be lawful if it

was held in countryside? And if police argued that it will bring harm to the public, on

what extent it may cause since the people bring no weapon. So what law used by

police to restrict such assembly? So the restriction should be considered as

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unconstitutional. In contrary, the assembly held by Hindraf on 2008 should be

restricted as it against article 10(1)(b) because the Hindraf members when held the

assembly has bad intention and also may cause harm to public as they bring

dangerous weapons and used criminal force to public servants on duty.

1.3.3.2 LAWS ON FREEDOM OF SPEECH

By looking at the Federal Constitution, Malaysians do have the rights to enjoy the

freedom of speech and expression as stated in the Article 10. However, the freedom is

only qualified in term of national security, public order, ethics or morality as stated in

Article 10 (2). The freedom is restricted and certain issues like the status of national

language, Malays special rights, the status of Islam as national religion and others

that we should not question as stated in the Federal Constitution. This means that we

have the rights to say whatever we like without breaking the rules or regulations that

threaten the society and even causes any public disorder or riot. In general, the

freedom of speech and expressions in Malaysia is not absolute.

In Malaysia, This part looks at the recommendations in the Reid Commission Report

on the issue to see whether it had laid down sound foundations for the provisions in

the existing constitution. This is necessary to ascertain whether what we have now is

something which reflects those ideas. We will also be able to know whether the

problem which we have today is actually something that is inherent in the

constitutional structure proposed by the commission. Undoubtedly this is necessary

for future reforms and may serve as a good lesson for other countries. Freedom of

Speech is part of what is known as Fundamental Liberties in our Federal Constitution.

It has been observed that the commissions recommendation on this has been vague,

particularly on the importance of such rights.14 It is difficult to understand why the

commission devoted only two paragraphs or a chapter which serves as the

foundations for the protection of the rights in the country, particularly when eights

years before the world saw the adoption of the Universal Declaration of Human Rights

1948. he White Paper, which reviewed the Reid Commission Report, failed to improve

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the recommendations on the subject.17 It seems that the Paper gave matters

pertaining to the Conference of Rulers, Islam and Malay privilege more importance

than questions on fundamental liberties. It is quite clear that the reason why the Reid

Commission included the chapter was to satisfy the unspecified and unfounded

apprehension of unspecified quarters, not an original idea emanating from the

commission itself. t appears that the commission were too optimistic about the rights.

The tone is different if one looks at their recommendations on emergency powers. In

hindsight one could say that the commission should have dealt with the issues more

thoroughly. Given that the commission consisted of judges and jurists it is difficult to

understand why they did not impose a condition similar to that on the special position

of the Malays, which they considered to be hardly acceptable in a democracy.

As a general principle most of us agree that the right to freedom of speech

and expression is not absolute. But while we have no problem of accepting this the

problem with our constitution is that the rights are couched in such a way that it is

placed in the custody of Parliament. This is the impression one gets the moment one

looks at the provision: although the constitution says that every citizen has the right to

freedom and speech and expression it has allowed parliament to impose restrictions

on them. The constitution says, inter alia, that Parliament may by law impose.on

the rights.such restrictions as it deems necessary or expedient in the interest of the

security of the federation or part thereof , friendly relations with other countries, public

order or morality and restrictions designed to protect the privileges of Parliament or of

any Legislative Assembly or to provide against contempt of court, defamation, or

incitement to any offence. For the purpose of comparison perhaps one could mention

the First Amendment to the American Constitution which categorically provides, inter

alia, that the "Congress shall make no law abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances. This has always been regarded as

fundamental by the American constitutional lawyers, something which serves as the

basis of the political system; a character that make their institutions symbols of

freedom and equality.

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 Introduction To Political Science - PAD 120/ Semester 2

1.3.3.3 LAWS ON FREEDOM OF ASSOCIATION

Other right provided under article 10 is the right to association. This article also seems

not bring much benefit to the citizen since court itself confused on the extent of the

right given to people in association. In the case of Malaysian Bar & Anor v

Government of Malaysia [1986] 2 MLJ 225, Harun J held that article 10(1) (c) does not

give any right to any citizen to manage association but just the right to form it.

The issue comes to mind is who are given this right? Is this right given to all

people regardless their status and age? Can law be biased by giving certain restriction

on particular person only for example in University and University Colleges Act 1971

which contain provision restricting university students from involving in political

parties? Or is political parties are excluded from the meaning of association? So it

seems the provision under the Act is unreasonable. Not only that, although article 10

has given right to the citizen to association but in most universities and colleges,

students need to wait for a long time just to form an association. It shows that the right

is does not function properly.

Those three rights under article 10 are so important since it becomes the basic of the doctrine

of democratic country. From the freedom of speech, assembly and association, the people of

the country may express their opinion on important matters of the country especially what are

related to their rights and obligation. The court should function and use their power to help

people and not just interpret the law in favor of the parliament.

1.3.2 ARTICLE 11- FREEDOM OF RELIGION

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 Introduction To Political Science - PAD 120/ Semester 2

According to Article 11, Every person has the right to profess and practice his religion and,

subject to Clause (4), to propagate it. Beside that no person shall be compelled to pay any tax

the proceeds of which are specially allocated in whole or in part for the purposes of a religion

other than his own. Apart from that, every religious group has the right:

to manage its own religious affairs;

to establish and maintain institutions for religious or charitable purposes; and
to acquire and own property and hold and administer it in accordance with law.

This article also told that State law and in respect of the Federal Territories of Kuala Lumpur

and Lubuan, federal law may control or restrict the propagation of any religious doctrine or

belief among persons professing the religion of Islam. This Article does not authorize any act

contrary to any general law relating to public order, public health or morality.

It can be concluded that Article 11 of the Federal Constitutions stated about the freedom of

Religion. In the Article 11 Clause (1), it was stated that every person can profess and practice

their own religion, subject to Clause (4) to propagate it. Clause (2) stated that no person shall

be compelled to pay money, which the money are fully or only part of it will be used for

religions purposes other than your own religion. Article 10 also stated that every religious

group has the right to establish & maintain institution for their children for the purposes of

religion or charitable purpose. As in case Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam,

it was held that a Sikh man is dead and the question before the court whether the deceased is

still Muslim when he died? His relatives claim that he had prayed at the Sikh temple and

continue to eat pork. But he has registered his name as Muslim and he was engaged to marry

a Muslim girl then the court held that he remains a Muslim.

1.4 CONCLUSION

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 Introduction To Political Science - PAD 120/ Semester 2

No one will deny the idealism of human rights as they were enriched in the constitution itself. But we

must not be swayed into believing that these rights are ideal for all intents and purposes for all times

and under all circumstances. To be fair, these rights can only be applies in time of peace properity. The

basic principles of human rights which includes the fundamental liberties should be upheld not only by

those who call themselves democratic government but also by those people who claim themselves to

be citizens of a democratic government. It is a two-sided affair, and not a one sided claim.

BIBILIOGRAPHY

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 Introduction To Political Science - PAD 120/ Semester 2

1. Federal Constitution of Malaysia. (2010). Petaling Jaya. International Law Book Services.
2. Mohamad Suffian. (2007). An Introduction To The Constitution of Malaysia. Petaling Jaya:

Pacifica Publications.
3. Nik Abdul Rashid. (1977). Erosion of Fundamental Liberties Roghts by Legislation. Kuala

Lumpur: The Fourth Malaysian Law Conference.

4. Shad Shaleem Faruqi. (2008). Document of Destiny. The Constitution of federation of

Malaysia. Star Publications (Malaysia) Berhad.

5. Wan Arfah Hamzah. (2009). A First Look at the Malaysian Legal System. Oxford Fajar Sdn.

Bhd.

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