Rights, Privileges, Liberties

Legislation that violates fundamental rights st out in Part II can be declared void due to inconsistency with the constitution

Art 4(1); Ah Thian v Govt of Malaysia:

________ 2000 markes new commitment to fundamental rights.

Human Rights Comission of Malaysia (SUHAKAM)

Sasmitaat Madja v Ketua Pengarah Penjarah Penjara Malaysia & Anor

Constitution confers upon individuals certain fundamental and inalienable human rights, such as equality before the law (Art 8(1)).

Individuals cannot contract out of the protections of the Federal Constitution

Barat Estates Sdn Bhd v Parawakan a/l Subramanian

Case can engage the application of more than one fundamental liberty at the same time

Alma Nudo Atenza v PP

Where private individual/company invades another’s liberty; the remedy is found in private law not constitutional law:

Beatrice Fernandez v Sistem Penerbangan Malaysia & Ors

• Discriminated against as she was a woman by airline. Sacked from employment due to pregnancy; included in the employment clause.

• Art 8(2) is only applied to government.

• Also in AirAsia Berhad v Rafizah Shima.

Features of Malaysian Constitution That Protects Fundamnetal Rights

1. Law Must Meet The Minimum Content Of Fairneses

2. Presumption Of Constitutionality

3. Broad Construction Of Fundamental Rights

4. Doctrine of Severability

Law Must Meet The Minimum Content Of Fairneses: Must satisfy certain basic requirements such as being clear, stable, generally prospective.

Alma Nudo

Law Must Meet The Minimum Content Of Fairneses: Must include the general principles of the common law such as presumption of innocence.

Pendakwa Raya v Gan Boon Aun

Presumption Of Constitutionality: Emphasized the strong presumption of constitutionality regarding legislative acts, noting that the burden rested on those challenging the law to show it was unconstitutional,

• Public Prosecutor v Datuk Harun bin Haji Idris & Ors

Presumption Of Constitutionality: Presumption in favor of the law’s validity, and it is up to the challenger to rebut that presumption.

• Malaysian Bar & Anor v Government of Malaysia 

Broad Construction Of Fundamental Rights:

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor 

“life” in Article 5(1) includes all those facets that are an integral part of life and those matters that go toward forming the quality of life, such as the right to livelihood and the right to live in a healthy environment.

• Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors 

  • Broad construction in interpreting Article 12(4) on the religion of a child, holding that both parents’ consent is required for a minor’s religious conversion. 

Broad Construction Of Fundamental Rights In other Countries

• Malaysian courts adopted a similar approach to that used by courts in India (notably in the Maneka Gandhi case) and the United States, recognizing the interconnectedness and dynamism of fundamental rights

Doctrine of severability (concept case and application).

• PP v Kok Wah Kuan

  • Court to invalidate only the unconstitutional portion of a statute while upholding the remainder of the legislation if the valid and invalid parts are separable.

  • It ensures that laws are not struck down entirely just because a part of them conflicts with the Constitution.

• Hilman Bin Eidam

  • The Court of Appeal declared Section 15(5)(a) of the UUCA unconstitutional because it unreasonably restricted the students' rights to freedom of expression and political participation. 

  • Court struck down this section and kept the rest of the UUCA.

Art 5: Right to life and personal liberty

• Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan

  • The person was deprived of employment and means of making a living under an unfair basis.

PRISMATIC INTERPRETATION

•  Sivarasa Rasiah v Badan Peguam Malaysia & Alma Nudo

• When right to life goes through the prism of judicial interpretation it is diffused to contain a rich spectrum of subrights which are submerged in the word ‘life’.

CRITIQUE on prismatic and puposive interpretation

Andrew Harding

• Highlights the prismatic and purposive interpretation of fundamental rights in Malaysia, encouraging expansive readings consistent with evolving societal needs.

Right to make a livelihood

•  Tan Tek Seng

  • Expanded “life” to include livelihood as essential to life’s quality.

Right to quality of life

• - Lee Kwan Woh

  • Affirmed quality of life as part of the right to life under Article 5.

Right to live with dignity

• - Muhamad Juzaili

  • People who had gender dysphoria proseeuted by Islamic Affairs Department.

Right to fair trial -

Gan Boon Ang,

• If Act enacted by Parliament is unconstitutional, nobody can be prosecuted because of it as it is void to the extent of the inconsistency.

• Alma Nudo Atenza

Evolving scope of the right to life

• Nicotine Delisting Case (2023) 

•  Retrospective changes to trial procedures can be changed

Lim Sing Hiaw v PP

REASONABLE CLASSIFICATION TEST

• Intelligible differentia: The classification must be based on some clear and rational differences distinguishing the persons grouped together from others.

• Rational nexus: The classification must have a reasonable relation to the objective the law seeks to achieve.

• REASONABLE CLASSIFICATION TEST CASE

• Khamis and Ors v State Government of Negeri Sembilan: State law criminalizing cross-dressing discriminated against male Muslims but not female Muslims; the court found this violated Article 8(1) despite personal law exceptions under Article 8(2).

Doctrine of proportionality must be applied in reasonable classification test

Lee Kwan Woh

Only vertical application of application for breach of fundamental rights

• Beatrice Fernandez

  • Did not apply to private employers. Beatrice was not ba

• Art 8(1) has a ‘humanising and all pervading’ quality,

• Comes with PROPORTIONALITY

• Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors

• restriction to a West Malaysian’s entry to Sabah is not an unconstitutional restriction to liberty.

• 9(3): Sugumar Balakrishnan:

Parliament may impose restrictions on Sedition Act.

• Azmi Sharom

  • Unlimited freedom of speech might cause civil disturbance.

Art.11:  Freedom of religion KEY CASE

• Lina Joy v Majlis Agama Islam Wilayah Persekutuan

  • Lina Joy wanted to exit the Muslim relgiion. She wanted her IC to change from Muslim to Non-Muslim. She brought judicial review against the IC department. Courts upheld that theremust be permission from the Syariah courts before apostatizing. 

    • Apostatizing is a crime in Islam.

  • Exiting is also different in each state, some illegal some has a rehabiliation process.

Freedom of religion; person under 18 years old must need both parents to consent.

Indira Gandhi

When can restricitons to fundamental liberties be implemented?

Pung Choon Chun:

fall within prescribed grounds for security, public order, morality, or other interests.

Case of courts adopting a restrictive approach to judicial intervention where statutory presumptions of security concerns exist.

• Karam Singh

  •  Karam Singh was detained under the Internal Security Act (ISA) without trial. He challenged the constitutionality of his detention.

Some issues relating to fundamental liberties are considered non-justiciable, meaning courts will not intervene or review them.

Sin Yee Chun: 5(1)

Often because the matters fall within the exclusive domain of other branches of government or are protected by statutory ouster clauses.

Equality rights can be non-justiciable depending on context, especially where political or security matters are involved.

Jaraimi Bin Hussin: Involved 8(1) 

CRITIQUE: gap between the theoretical supremacy of the Constitution and the practical challenges Malaysian courts face in enforcing fundamental rights.

• Abdul Aziz Bari

CRITIQUE: Modified constitutional supremacy in Malaysia where Parliament wields extensive amendment powers.

• Professor Zurairi AR

• although the Constitution is supreme on paper, fundamental rights are often subordinate to political expediency unless courts assert themselves as independent guardians.

Written constitution as a living document, intended to uphold human rights and democratic governance. 

• Prof Shad Saleem Faruqi

• Disjunction between Malaysia’s constitutional guarantees and the reality of restricted freedoms, especially curtailed via laws like the Peaceful Assembly Act and the Sedition Act.

• Dr Aileen Khor

Trilogy of cases protecting fundamental rights

The Trilogy: Expanding Constitutional Rights

Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor (1996)

• Justice Gopal Sri Ram emphasized that constitutional rights must be interpreted in a generous and liberal fashion to reflect the framers’ intention12.

Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan (1996)

• This case followed a similar reasoning, applying broad constitutional principles to protect employees in dismissal cases, emphasizing fair procedure and reasonableness in administrative decisions34.

Alma Nudo Atenza

• Burdens or presumptions that heavily affect fundamental rights without adequate justification, fail the proportionality test.

WEAKNESS: Legislative supremacy courts role is to enforce laws not legislate further

Chiow Thiam Guan (1983)

• The court held that although a law restricting life or liberty might be harsh, as long as it is validly enacted, the courts’ role is to enforce it.

  Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah (Federal Court)

• The Federal Court reaffirmed a restrictive interpretation: "personal liberty" in Article 5(1) means freedom from unlawful detention, not a broader package of rights.

• The court disagreed with the view that Article 5(1) should be read generously to include various facets that improve the quality of life.