The main provision in the Malaysian Constitution

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The main provision in the Malaysian Constitution

• 1- RELIGION
• Islam as an official religion is one of the
  criteria in Malaysian constitution.
• Freedom of religion as a multi religious society
  but this principle is in no way contrary to the
  principle that Islam is the religion of the
  federation.
• Art 11(1) Every person has the right to profess
  and practice his religion.
• Art11(1) allows the state to legislate for the
  control or restriction of the propagation of any

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• religions doctrine among person professing Islam.
• T/fore while safeguarding freedom of religion,
  draw a distinction between practice and
  propagation of religion.
• Every religious group has the right
• a- to manage its own religious affairs
• b-to establish and maintain institution for
  religious or charitable purpose
• c-to acquire and own property and hold and
  administer it in accordance with the law.

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• Art 12(1) prevents discrimination on religious
  grounds in the administration of public education
  and scholarship.
• Art 12(2) gives every religions group the right
  to establish and maintain institution for the
  education of children in its own religion.
• The same clause adds that the state or the
  federation may establish or maintain institution
  providing instruction in Islam.
• Art(12)3 No person shall be required to receive
  instruction in or to take part in any ceremony or
  act of worship of a religion other than his own.

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• 2- CONVERSION AND RELIGIOUS FREEDOM
• Case- Teoh Eng Huat (1990)
• Art 12(3)- refer back.
• Art12(4) The religion of a person under the age
  of 18 years shall be decided by his parent or
  guardian.
• T/fore the judge held that the age of majority
  under art 12 had no application to art 11 and
  applied the Islamic age of majority.
• The declaration that Teoh had the right to decide
  his daughters religion was refused. He could
  decide on her upbringing and her education until
  she attain majority, but only so

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• far as this right did not conflict with her
  choice of religion.
• In 1988- Islamic law bill was introduce clause
  67 a person who is not a Muslim may convert to
  Islam if he has attained the age of majority
  according to Hukum Syara and is of sound.
• This issue criticize by many religions bodies and
  this all brought the issue of conversion to the
  highest level,the prime minister intervening
  after these protestations.
• In March the supreme Court sitting in a bench of
  5 judges, finally pronounced on teohs appeal.It
  held that a person of less than 18 years does not
  have a

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• constitutional right to choose his own religion.
• The episode shows that how constitution
  interpretation must take into account the
  condition of society.
• LANGUAGE
• Art 152(1) provides that Malay shall be the
  national language but
• a- no person shall be prohibited or prevented
  from using or from teaching or leaning any other
  language

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• After merdeka there was a move towards the
  establishment of BM de facto as the national
  and official language.
• Art 152(2) allowed English to be used in
  parliament, in state assemblies and for official
  purpose for 10 years after merdeka.
• English to be the language in the high court and
  the federal court.
• On the expiry of the 10 years,1967, parliament
  did make provision for the national language.
• The potential conflict between the right to use
  languages other than Bahasa Malaysia

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• for example in education, was explored in the
  important and controversial case of Merdeka
  University Bhd v.Government Malaysia.
• POLITICAL RIGHTS
• General consideration under art 10- defined as
  rights to participate in the political process
  other than through ballot box in other words the
  rights to freedom of speech and expression,
  assembly and association.

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• Freedom of speech
• Many statues which restricted the right of
  freedom of speech and expression.
• Especially with regard to the sensitive issues
  under sedition act, printing presses and
  publication act 1984. And official secret
  act.1971.
• The offence may be committed by the printer and
  publisher as well as by speaker or writer. Or by
  one who possesses or imports sedition matter.

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• SEDITION
• The sedition Act was originally enacted in
  1948.The act makes it an offence to utter or
  publish words which have a seditious tendency,
  defined as
• -Bringing into hatred or contempt or exciting
  disaffection against any Ruler or Government
• -Exciting the alteration other than by lawful
  means of any matter by law established
• -Bringing into hatred or contempt the
  administration of justice

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• Raising discontent or dissatisfaction among
  subject
• Promoting ill will and hostility between races or
  classes of the population.
• This definition is of course very wide but
  following a 1970 emergency-law amendment to the
  Act in the wake of the 1969riots, another item
  was added to the definition, namely
• Question any matter, right ,status,position,
  privilege, sovereignty or prerogative established
  or protected by Part or Arts 152,153 or 181 ( the
  so called sensitive issues)

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• The judge must decide wheater the words have a
  seditious tendency.
• Example
• In Melan bin Abdullah , Ong Hock Yhye CJ (Malaya)
  held the accused guilty of when he wrote as an
  editorial sub-heading abolish Tamil or Chinese
  medium schools in this country.
• In Oii Kee Saik the accused was convicted of
  sedition when he charged the government with
  providing comfortable shady places for one group
  of citizen, and hot uncomfortable places for
  other groups of citizen.

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• -Contempt of court
• The law of contempt of court has also given rise
  to some spectacular cases, which define the
  boundaries of freedom of speech in the light of
  local circumstances.
• Example In Lim Kit Siang v Dato Seri Dr.
  Mahathir Mohammad. The Prime minister himself was
  the subject of a contempt of court application by
  the leader of opposition. The PM had criticized
  the courts for interpreting statutes contrary to
  the intention of parliament. Mr Lim alleged that
  his criticisms were a challenge to the authority
  of the judiciary and the separation of powers,
  and intimidated the judiciary.

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• The Supreme Court held that the PMs remarks did
  not constitute contempt of court but were an
  articulation of the executives frustration in
  not being able to achieve its objects in matter
  where the intervention of the courts has been
  sought to some avail. However, the remarks were
  roundly criticized by Salleh Abas as a
  misconception of the constitutional role of the
  court.

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-Press Freedom and the licensing of newspapers

• The printing presses and publication act 1984
  requires the keeper of a printing press to obtain
  a license from the minister and making a deposit
  the amount of which is fixed by him. The
  ministers power to refuse to renew the license
  is not subject to judicial review. This power has
  been used to control the press. For example, 4
  newspaper were closed in 1987 during the operasi
  lalang crisis. A number of weekly and monthly
  journals have also been subjected to this
  procedure.

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-freedom of assembly

• Freedom of assembly has been regulated by the
  Police Act 1967, and gatherings of more than 5
  persons in public places require a permit, which
  must be applied for 14 days in advance.
• Special Privileges and legitimate interest
• Special privileges to bumiputera- Malays and
  natives of any States of Sabah and Sarawak

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• In Malaysia there is an equivalent to the Indian
  situation in the sense that the indigenous orang
  asli are group similar to the Scheduled Tribes,
  being backward and confined to the mountainous
  jungle areas of central Malaya.
• The constitution provides for the validityany
  provision for the protection, well being or
  advancement of the aborigines ( including the
  reservation of land) or the reservation to
  aborigines of a reasonable proportion of suitable
  positions in the public service

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• The justification for such an unusual situation
  is that the bumiputra constitute, historically,
  economically disadvantaged group who would fall
  further behind if rule of legal equality were
  strictly observed
• Anotole France wrote of legal equality, the law,
  in its magisterial equality, forbids the rich as
  well as the poor from sleeping under bridges and
  stealing bread The rational of positive
  discrimination is itself based on the concept of
  equality to impose equality on already unequal
  groups simply perpetuates inequality.

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• It is inherent in the concept of equality that
  inequality must first be overcome and it is
  inherent also in the concept of discrimination
  that at some point it must be regarded as having
  fulfilled its purpose.
• The constitution doesnt allow simply any kind of
  discrimination in favour of bumiputra. It is not
  a blank cheque, but merely confers limited powers
  on government and parliament.
• Art 153(1) says that it is the responsibility of
  the YDPA to safeguard the special position of the
  Malays and native of Sabah and Sarawak. And the
  legitimate interests of other communities.

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• YDPA responsible to ensure the reservation for
  Bumiputera of such proportion as he may deem
  reasonable of
• 1- position in the federal public service
• 2- scholarships and other similar education or
  training privileges.
• 3- permits or licenses for the operation of any
  trade or business, where required by federal law.
• However, these provision do not allow unequal
  treatment of federal employees of different race.

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Personal liberties

• Art 5 - No person shall be deprived of his life
  or personal liberty save in accordance with law.
• Among the rights are
• a- The right to habeas corpus
• Where complaint is made to a High Court of any
  Judge thereof that a person is being unlawfully
  detained the court shall inquire into the
  complaint, and, unless satisfied that the
  detention is lawful, shall order him to be
  produces before the court and release him.

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• b- The right to be informed of the Grounds of
  arrest.
• Art 5(3) gives a right to an arrested person to
  be informed as soon as may be of the grounds of
  his arrest.
• as soon as may be depends on the facts of the
  case. A delay of 57 days between arrest and
  informing the detainee of the grounds is clearly
  contrary to art 5 (3), and also renders the
  arrest invalid.
• C- The right to counsel
• Art 5 (3) the right to be allowed to consult and
  be defended by a legal practitioner of his choice

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• D- The right to production before a magistrate
• Art 5(4) contains the right of an arrested person
  without unreasonable delay, and in any case
  within 24 hours of arrest, to be produced before
  a Magistrate and not to be detained further
  without the Magistrates authority.
• In case of arrest of a non-citizen under
  immigration laws, the period of time is 14 days
  rather than 24 hours.

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• E- Double Jeopardy
• Designed to prevent repeated trials- the accused
  has already been convicted of the offence.
• F- freedom of movement
• g- property rights

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CITIZENSHIP

• Citizenship is a status held by the people who
  have the right to be in a country.
• This status give rights, benefits and certain
  facilities.
• The right to vote
• the right to take active in politics
• the right to fill a post that exclusive for
  citizen only
• Free to own landed property
• etc..

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• Holding this status demands at the same time
  certain responsibilities.
• Give national service including the army if
  required to.
• Abide the laws and help run the systems in the
  country.
• Contribute to the productivity of the country in
  whatever field he undertakes
• Participate and as far as possible support
  national programmes and events.

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Ways of acquiring citizenship

• 1- Jus Soli
• This is based on the laws of the birth place.
  Regardless the status of the mother or father,
  citizenship status is automatic for people born
  in Malaysia between independence day and October
  1962. Those born after 1962 can become citizens
  if they fulfil one of the conditions At the time
  of his birth...
• a- The mother or father is a citizen
• b- mother or father has been residing in the
  country
• c- He was not a citizen of any country

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• B- Jus Sanguinis
• The factor jus sanguinis relies solely on the
  citizenship status of the father.
• If the father is a citizen, regardless of whether
  he is born outside the country.
• However for the child of a citizen who is born
  outside the country, the child inherits the
  fathers citizenship status if
• His own father was born in Malaysia, or
• His father holds a post in the Public Service at
  the Federal or State level, or
• His birth was registered at the office of the
  Malaysian Consulate or with the Malaysian
  government within one year after his birth.

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• C- Marriage
• The right to a foreign woman who is married to a
  Malaysian citizen to apply to become a citizen.
• Citizenship is given through registration.
• The following condition must be fulfilled
• If the husband is a citizen in October 1962 or
  prior to that, and the marriage is still binding
  or
• The foreign woman has lived in the Federation for
  two years before the application is made, has the
  intention to continue living in the Federation
  and is of good conduct.

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• D- Naturalization
• Residents who are not born in Malaysia to become
  Malaysian citizens. Applicants are required
• Aged 21 and above, and
• Have lived in the Federation for at least 10 out
  of 12 years from and up to the date of
  application, and
• Have intention to live permanently in the
  country, and
• of good conduct, and
• Have sufficient knowledge of the Malay language.

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Loss of citizenship

• 1- He himself rejects the citizenship for
  personal reasons. (Renunciation (Art 23) )
• 2- He has violated the laws and committed a
  prohibition action. (Deprivation (art 24)
• Can be one of the following
• he has become the citizen of another country
• He is enjoying all the rights and facilities in
  another country, whereas the rights are given
  only to the citizens of those countries.
• A woman becomes the citizen of a foreign country
  through marriage
• Acts negatively showing he is no longer loyal to
  Malaysia
• Has ties with a hostile country

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• Has been sentenced in a state within a period of
  5 years after becoming a citizen of the
  Federation with a jail sentence of not less than
  12 months or fined not less than RM5,000
• Give services to another country without
  permission
• Lives continuously for 5 years in a foreign
  country unless he is on service with or on behalf
  of the Malaysian Government
• The citizenship has been falsely obtained
• A foreign woman who acquired her citizenship
  status through marriage, is divorced from the
  husband, except in the case of divorce where the
  husband has passed away.