Fundamental Liberties- Article 5-13

MALAYSIAN LEGAL SYSTEM 2012/2013
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Introduction
The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying
3 basic concepts: One of them is that the individual has certain fundamental rights upon which not even
the power of the state may encroach. They are set out in Articles 5 to 13 of the Constitution. This paper
will be focusing on certain articles which are controversial and rebuttable by many parties.
Article 5 – Liberty of the person
In general, every person including citizens and non-citizens has right to life and liberty. These
rights cannot be taken away unless there are circumstances allowed by law to do so. The word “life” here
doesn’t merely means to be alive in this world, but as an access to quality of life. Different people possibly
have diverse ideas on what ‘life’ means. Even the pleasure of a pollution free environment was held to be
part of the constitutional protection within the meaning of life as in Hong Leong v Liew Fook Chuan.1
In the other hand, ‘fundamental liberty’ is the power of doing what is allowed by the law.2 In PP
v Tengku Mahmood Iskandar3, it is interpreted as restriction to physical body of person, and ‘a right not
to be subjected to unlawful arrest, imprisonment or other physical coercion.4 There are disputes arises on
whether life imprisonment, euthanasia and death penalty violates the constitutional rights under Article 5.
In PP v Lee Kee Hoo5, a case where the mandatory sentence was challenged on constitutional
grounds, the court held that it is constitutional under the law for a conviction under Section 57 ISA.
1
[1996] 1 MLJ 481.
2
Shad Saleem Faruqi. Document of Destiny, see page 208 para 2.
3
[1973] 1 MLJ 128.
4
Ibid
5
[1983] MLJ 157.

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Thus, it is clear that every person is entitled to right to life except the law allowed such right to be
infringed.
Article 7–Protection against retrospective criminal laws and repeated trials
Article 7(1) generally deduced that a person cannot be punished for something which at the time
when it was done was not an offence. The case of Loh Kooi Choon v Government6 is a case concerning
the rights guaranteed by the Constitution, and the extent to which Parliament can amend the
Constitution. This case interprets ‘punishment’ as refer to criminal sanctions only. For the civil matters,
they can be backdated.
To make it clearer, if someone broke one of the traffic rules in the pass, the authority cannot then
punish him after the enforcement of certain law specifically on that offence today. The same rule applies
to the sentence decided by the court in the past where it cannot be changed today due to the amendment
of laws based on the doctrine of res judicata7 as prescribed under article 7(2) of the Federal Constitution
and affirmed in the case of Sau Soo Kim v PP.8
Article 8 – Equality
The principle of equality is the most fundamental of human rights and has been described as the “
starting point of all liberties”9. This article discusses specifically on the equality before the laws under
few sub sections (1) to (5). In general,every person will have the same right under the law to be enjoyed
and it is equal to everyone. Nevertheless, there are some privileges given to certain peoples such as
6
[1977] 2 MLJ 187.
7
A matter that has been adjudicated by a competent court and may not be pursued further by thesame parties.
8
[1975] 2 MLJ 134.
9
Mashood Baderin, International Human Rights and Islamic Law. (Oxford: Oxford University Press. 2003) p. 58 quoting Justice Tanaka in
the South West Africa Cases [1966] ICJ Reports, p. 304.

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indigenous people and Bumiputera in Malaysia which cannot be questioned because they are protected
by the constitution.
However, despite of the existence of Article 8 which provides equality to all people, there are still
issues arose especially in term of ‘gender discrimination’. What if women and men are not similarly
situated? For example, in Fernandez v Malaysia Airlines10, a term of employment allows the dismissal
of female airline stewardesses who are pregnant. Here males and females are not similarly situated because
only females can get pregnant as that is a sexual-biological difference between males and females. To
what extent equality can be achieved is still a question of fact.
Article 9 – Freedom of movement and protection against banishment
In general, every citizen has the right to move freely and stay in any part of the country excluding
where any law is passed relating to the security of the country, public order, public health or the
punishment of offenders. However, it must be noted that freedom of movement does not cover right to
passport as the authority may stop a person from leaving the country, if for instance there are criminal
charges pending as against him.
In Government of Malaysia & Ors v Loh Wai Kong11 where the respondent had applied for an
order directing the appellants to issue a Malaysian passport to and contended that he had a fundamental
right to travel abroad and that the refusal of a passport violated this right. The court that even Article 5
itself does not confer on the citizen a fundamental right to travel overseas. As for the protection against
banishment, Malaysia had taken light positive by abolishing the Banishment Act 1959 which has not been
applied since 34 years ago since the case of Home Minister vs Chu Choon Yong and Anor.12
10
[2004] 4 MLJ 466.
11
[1979] 2 MLJ 33.
12
[1977] 2 MLJ 20.

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It is true that every person is entitled to freedom of movement, so long as they obey the laws, they
will be protected constitutionally.
Article 10 – Freedom of speech, assembly and association
Citizens have freedom of speech, assembly and association nevertheless these freedoms may be
restricted by Parliament for reasons permitted by the Constitution. The Courts have said Parliament may
only impose restrictions where they are reasonably necessary such as for the security purposes.
The recent issue on this basis is the amendment of Universities and University Colleges Act
(UUCA) which allows university students to hold positions in both political parties and campus
organisations. This hot issue rose when students started complaining and showing their dissatisfaction that
they should be given the same right to assemble and being given access to speak freely. ‘Bersih’ assembly
done by the opposition parties is still a question of fact in whether the government has the right to restrict
their movement or not.
It can be deduced that the authority actually have power impliedly to decide whether such acts is
reasonable or dangerous and whether they will threaten the well-being and security of country or not.
Article 11- Freedom of religion
In order to fully understand Article 11, one must have deep understanding on Article 3 of the
constitution, stated that Islam shall be the religion of the Federation, but other religions may be practiced
in peace and harmony in the Federation13. It must be accepted that the concept of freedom of religion in
Malaysia is far different from what have been practiced in the West where apostasy14 is an offence here
13
Article 3, Federal Consitution of Malaysia.
14
Conversion of Muslim to another faith.

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in Malaysia. Besides, it is also strengthened under this article that there shall be no discrimination to any
person of federation on the basis of religions.
However, there also exist restraints on the freedom of religion as to what extent a person is
protected under the constitution. Many of them developed through case laws, especially on the scope of
the word, practise in article 11, culminating in the ‘non-mandatory practices’ doctrine. In essence, this
means that freedom of religion extends only obligatory practices. In Halimatussaadiah bte Hj
Kamaruddin v. Public Services Commission Malaysia & Anor15 , the court rejected a woman‟s
contention to be allowed to wear a purdah to work places because the government was entitled to forbid
a religious tradition that was optional in the interests of the public service.
Article 12 — Rights in respect of education
This article generally prohibits any form of discriminations on the grounds of religions, races,
descent as well as in the payment of fees. In Malaysia, primary education is absolutely accessible to every
person. This article also provides the basis of religious education where a person is not entitles to receive
any instructions of other religion other than his own. For instance, Non-Muslims students cannot be forced
to learn Islamic subject which is compulsory to the Muslims except he is voluntarily done so as in Teoh
Eng Huat v Khadi of Pasir Mas16
Another important matter issued under this article is the right to profess a religion. It must be noted
that a person who has not yet achieve the age of majority of 18 years old is obliged to follow their parent’s
decision in religion matters. The most confusing scene happened when the case involved the divorce of
parent, and one of the party convert their children to his or her new religion without the other party
permission.
15
[1994] 3 MLJ 61.
16
[1986] 2 MLJ 228.

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These issues are very common nowadays and will never ends unless common understandings can
be achieved which is actually hard.
Article 13 — Rights to property
Right to property involves not only the physical thing itself but also the surrounding rights such as
exclusive use, the right to alienate by sale, gift or exchange and the right to bequeath17. Article 13 provides
that no person may be deprived of property save in accordance with law.
The most widespread issues on rights to property always involve the case of aboriginal peoples.
For instance, in Adong bin Kuwau& Ors v Kerajaan Negeri Johor & Anor18, the first case of indigenous
people in Malaysia, the court ruled to allocate an amount of RM26.5m for the Plaintiff to sustain their
welfare for the next 25 years due to the loss that they suffer because of the land acquisition of income of
anything above the land not because of the land.
In short, no law may provide for the compulsory acquisition or use of property without adequate
compensation.
Conclusion
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
17
Shad Saleem Faruqi. Document of Destiny at page 367.
18
[1997] 1 MLJ 418.

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times and under all circumstances. To be fair, these rights can only be applied in time of peace and
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.
Bibliography
Books
1. Federal Constitution of Malaysia. (2010). Petaling Jaya: International Law Books Services.
2. Mohamed Suffian. (2007). An introduction To The Constitution of Malaysia. Petaling Jaya :
Pacifica Publications.
3. Nik Abdul Rashid. (1977). Erosion of Fundamental Liberties Rights by Legislation. Kuala
Lumpur : The Fourth Malaysian Law Conference.
4. Shad Saleem Faruqi. (2008). Document of Destiny: The Constitution of the Federation of
Malaysia. Star Publications (Malaysia) Berhad.
5. Wan Arfah Hamzah. (2009). A First Look at the Malaysian Legal System. Oxford Fajar Sdn.
Bhd.
Websites
1. My Constitution: Fundamental liberties and citizenship. Retrieved from
http://www.malaysianbar.org.my/constitutional_law_committee/my_constitution_fundam
ental_liberties_and_citizenship.html?date=2010-12-01
2. Constitutional Law : Fundamental Liberties. Retrieved from
http://llbnotes.blogspot.com/2009/03/constitutional-law-fundamental.html

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3. Salbiah Ahmad. Gender Inequality. Retrieved from
http://www.malaysianbar.org.my/gender_issues/gender_equality_under_article_8_human
_rights_islam_and_feminisims_by_salbiah_ahmad.html

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