acca f4 - malaysian legal system (self-made notes)

At the apex of the court system is the Federal Court headed by the Chief Justice. Below the FC is the Court of Appeal which is headed by the president of the Court of Appeal. Below the COA are the 2 High Courts with o-ordinate jurisdiction. They are comprised of the High Court of Malaya (for WM) and High Court of Sabah Sarawak (for EM). The head of the both High Court is the Chief Judge. Below the High Courts are the Subordinate Courts, the highest which is Sessions Courts each of which is headed by a Sessions Court Judge. This is followed by the Magistrates' Courts. Parallel to it is the Juvenile Court. Both former and latter are presided by a Magistrate respectively. In the WM , there a the Penghulu's Court under the MC. They are headed by a Pengulu or the village's headman. In practice, these courts hardly function.

There are also the Syariah Courts and the Native Courts. These courts operate only at the State level. The NC only exists in WM and they deal with native rights. SC on the other hand deal with matters pertaining to Islamic Law in the respective states.

Overview of the above: ***

Subordinate courts * < = up to (not less than)

Penghulu's Courta.Magistrates' Courtb.Sessions Courtc.

Penghulu's CourtA.

Lowest level of the hierarchy1.Presided by a Penghulu / Village Headman2.Appointed by State Govt3.Preceedings are informal4.Deals with local disputes ; <$50 in value5.In criminal case, impose fine <$25 ; must inform the criminal's right to elect to be tried under 6.

Subordinate courts

High Courts

Chief Justice

President

Chief JudgeChief Judge

Session Court Judge

Magistrate

***- examined beforeThe Court StructureSaturday, 13 October, 20121:42 AM

Malaysian Legal System

In criminal case, impose fine <$25 ; must inform the criminal's right to elect to be tried under the jurisdiction of a Magistrates' Court before the commencement of the trial

6.

Appeal against the decision made in this court lies in a First Class Magistrate7.

The Magistrates' CourtB.

There are 2 classes of magistrates' court, viz the first class MC and the second class MC both presided by magistrate respectively.

1.

2nd class MCa.The magistrate not required to be qualified in law.•Usually a public servant and minor court officers•Grants bail and mentioning cases•Able to try criminal cases ; max punishment <12months imprisonment; or fine <$1000 or a combination of both

•

Civil cases - jurisdiction to recover a debt / liquidated demand of <$3000•

1st class MCb.Has to be a member of the Judicial and Legal Service•Able to try all offences, punishable with a fine and imprisonment <10 yrs•Able to pass sentences <5yrs imprisonment; fine <$10,000, whipping <12strokes•Civil cases : able to try cases where the value of the subject matter < $25,000•Has the jurisdiction to conduct preliminary enquiries and hold coroners inquest•

Sessions CourtC.

Highest jurisdiction of the Subordinate Courts.1.Presided by SC judge , appointed by the YDPA on the recommendation of Chief Judge2.Able to try all criminal offences other than those punishable with death3.May pass any sentence allowed by the law, other than death sentence4.Able to try all suits of civil matter in respect of mvaccidents, landlord and tenant, and distress5.Able to try civil cases tht >$25k, but < $250k6.

Specific performancea.Injunctionsb.Rectification / cancellation of instrumentsc.Matters involving immovable propertyd.

Does not have jurisdiction for the following matters:-7.

High Court

High court of Malayaa.High court of Sabah and Sarawakb.

2 types of High court1.

Presided by chief justice2.Consist of diff division3.

Originala.Appellateb.Supervisoryc.Revisionaryd.

Jurisdiction :4.

Unlimited criminal and civil powersi.Most cases, hear cases which cannot be determined by Subordinate Courtsii.Deals cases with drug trafficking and unlawful possession of firearms, ammunition and explosives

iii.

In practice, it tries mostly disputes in amount > $250,000iv.Also deals with matrimonial and divorce causes, bankruptcy, appointment of guardians and property of infants,

v.

Grant, alter or revoke Probate of Wills, Letters of Administration of the Estates of Deceased Persons

vi.

Original JurisdictionA.


Hear civil and criminal APPEALS from the subordinate courts (re-hearing)i.Normaly of subject matter >$250,000, UNLESS cases on a question of law.ii.

Appellate JurisdictionB.

To conduct and review the decisions of Subordinate Courts.i.Supervisory JurisdictionC.

In the exercise of its revisionary jurisdiction, if it appears desirable in the interest of justice, may call for the records of any proceding in the Subordinate Courts (civil or criminal cases) at any stage of such proceeding

i.Revisionary JurisdictionD.

If amount or value of subject matter < 250K, leave of the Court of Appeal must first be obtained.

a.

Where the judgment of the original trial was made by consent of the parties;1)Where the judgment relates only to cost2)Where the law stipulates the decision of the HC shall be final3)

No appeal may be made :b.

If the appeal to the COA is on civil matters; subject to restriction :i.

The matter in dispute in the appeal amounts to or is the value of >250Ka.The appeal involves directly /indirectly a claim to or in respect of property/civil right of the same amount/value

b.

From any decisions as to effect any provision of the constitution (including the validity of any written law relating to such provision

c.

If further appeal to the FC is on civil matters; it is to be made with the permission of the FC as follows:-

ii.

Appeals from the High Court - An appeal can be made to the Court of Appeal and then to the Federal Court

5.

The Court of Appeal

Act as an appeal chamber1.Proceedings are usually heard by and disposed by 3 judges. Number of judges may vary as the President see fits. However the number of judges is always uneven

2.

Judge of HC may sit as a judge of the COA if the President considers it necessary in the interest of justice after consulting the Chief Judge

3.

Any decisions made by the HC in the exercise of its original jurisdictioni.A decision of the HC in the exercise of it appellate jurisdiction in respect of a criminal matter originally decided by the SC

ii.

COA hears and determine any appeal against :-4.

Appeal is not allowed if the subject matter is less than 250k, except with the leave of COAi.If the judgment of the HC was made by the consent of both partiesii.Judgment relates to cost onlyiii.If it was expressed the written law is finaliv.

Some exceptions of when Appeal can be made :5.

The Federal Court

Appellate a.Originalb.Referralc.Advisoryd.

Jurisdiction:1.

FC will hear civil and criminal appeals from decisions of HCi.Consist 90-95% of the Court's workii.Criminal cases appeal may be made by the Public Prosecutor against acquittal.iii.

AppellateA.acquittal - formally certifies the accused is free from the charge of an offense,


Original B.

Any questions regarding a law made by a legislature, federal or state is invalid on the ground that it deal with a matter to which it has no power to legislate; (freedom of religion)

a.

And dispute btwn states and btwn the federation of any statesb.

Exercise this jurisdiction over those matters :-i.

ReferralC.Determines constitutional questionsi.Then remits the case back to the original court to be disposed of in accordance with that determination

ii.

Pending the determination of the case by the FC, the court before may postpone proceedingsiii.

AdvisoryD.The FC may give its opinion to His Majesty if referred by the latter concerning the effect of any provision of the Constitution.

i.

Other CourtsJuvenile Courts - Juvenile Courts Act 1947

Purpose : to try offences committed by juveniles in an atmosphere different from ordinary courts

1.

Principle behind this JC is that these juvenile need care and attention and should be treated with compassion with a view to correcting them

2.

May try all offences except those punishable by death3.Special court and closed to the public4.

Industrial Court - Industrial Relations Act 1967

Deal with matter relating to trade disputes and workman dismissal1.Set up with the aim to relieve the ordinary courts workload2.Comprises by a president and 2 panel members (one rep the employer, the other the emee)3.President must be legally qualified4.Proceedings are less formal5.

Advantage of having a court system with a Hierarchy ***

It facilitates a system of appeals. The court hierarchy distinguishes between higher and lower courts so that persons who are dissatisfied with the decision of a lower court have an avenue to have the decision reviewed by a higher court.

1.

It facilitates the application of the doctrine of binding judicial precedent which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in the application of the law.

2.

It facilitates specialization in the judicial process. The higher courts which are presided by more senior and experienced judges handle the more serious criminal offences such as murder, and kidnapping and more serious civil matters where larger sums of money are involved. The lower courts are left to handle the less serious offences and civil disputes involving smaller amounts of money.

3.

It results in greater administrative convenience, efficiency and cost effectiveness. The practical effect of a court hierarchy is that it provides for an extensive system of lower courts dispensing justice inexpensively in local areas and superior courts in the main centres.

4.

Importance of system of appeals


MALAYSIAN LAW

Written lawa.Unwritten lawb.

WRITTEN LAWA.

Written law refers to the law that is contained in a formal document and which has been passed by a person or body that is authorised to do so.

i.

In Malaysia, which has a written constitution, written law consists of the Federal and State Constitutions, the legislation passed by Parliament and State Legislative Assemblies as well as subsidiary legislation.

ii.

Written law comprises of the following:iii.

The Federal Constitution•The Federal Constitution is the supreme law of Malaysia. It is a written constitution. It stipulates the powers of the Federal and State Governments and provides for a democratic system of government. It also establishes a constitutional monarchy and entrenches fundamental liberties of the individual. To ensure that the Federal Constitution is not easily amended, a special majority of two-thirds of the total number of members of the legislature is required for an amendment.

The State Constitutions•Each of the 13 states of Malaysia has its own State Constitution. These contain provisions pertaining to state matters as provided under the Federal Constitution. The State Constitutions deal largely with land matters, agriculture, forestry, local government and Islamic law.

Legislation•This comprises the laws passed by Parliament as well as the State Legislative Assemblies. The laws passed by Parliament since 1957 (i.e. after Malaya’s independence) are called ‘Acts’ while those passed by the State Legislative Assemblies (except Sabah and Sarawak) are called ‘Enactments’. The laws passed in Sabah and Sarawak are called ‘Ordinances’.

Subsidiary legislation•This refers to the rules, regulations, by-laws, orders and other instruments made by a person or body in accordance with the powers delegated to him/it under an enabling legislation. Such legislation is an increasingly important source of law because Parliament and the State Legislatures lack the time and expertise to deal with specific technical details.

UNWRITTEN LAWB.

Unwritten law, refers to the law that has not been formally enacted. i.The unwritten law consists of case law (i.e. decisions of the superior courts which are binding on the lower courts), customary law (i.e. local customs which have been accepted as law by the courts) and applicable principles of English common law and equity.

ii.

Unwritten law comprises the following:iii.

English common law and the rules of equity•A very important source of Malaysian law. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained therein.However, the reception of English law and equity are subject to certain general exceptions. In particular, English law may only be applied where (1) there is no local law governing the matter and (2) if it is suitable to the local circumstances.

Judicial precedents•

Malaysian law is classified into

Sources of Msian Law & Doctrine of Judicial PrecedentSaturday, 13 October, 20121:44 AM


Judicial precedents•This refers to the law as developed through cases decided in the superior courts. Sometimes referred to as ‘judge-made law’, it is another very important source of law. Under the doctrine of binding judicial precedent, which is also observed in Malaysia, the decisions of the higher courts must be followed by the lower courts in similar cases. This generally ensures a fair and uniform application of the law.

Islamic law•This is another important source of Malaysian law, particularly in matters relating to marriage, divorce and inheritance among Muslims. It is only applicable to Muslims. Islamic law is administered at State levels by a separate system of courts called the ‘Syariah’ courts.

Customs•This refers to the customs of the local inhabitants which have been accepted as law. It mainly relates to family matters, e.g. marriage, divorce and inheritance. Generally, the customs of Chinese and Indians relating to marriage and divorce are no longer of much importance since the passing of the Law Reform (Marriage and Divorce) Act 1976, which abolished polygamous marriages among them. However the customary laws of the Malays (also called ‘adat’ law) and in East Malaysia, native customary law, continue to be important sources of law.

The Doctrine of Judicial Precedent

The doctrine of binding judicial precedent is one by which decisions of higher courts are required to be followed by courts, which are lower in the hierarchy of the court structure.

1.

Note that the precedent must originate from a court of appropriate rank in the same hierarchy or of a higher rank

2.

It is actually the ratio decidendi that binds future courts. The ratio decidendi refers to the rationale or principle of law on which the decision is based.

3.

The ratio decidendi must be distinguished from obiter dicta, which refers to opinions or other matters expressed by the judge, which are not directly relevant to the case before him.

4.

Obiter dicta are not binding on future decisions.5.In order to better understand the operation of the doctrine, the hierarchy of the courts must be borne in mind. The Federal Court is the highest court in Malaysia. Below it is the Court of Appeal. Below the Court of Appeal is the High Court. Below the High Court are the lower courts comprising the Sessions Courts, Magistrates’ Courts and the Penghulu’s Courts, which are referred to as the Subordinate Courts

6.

OPERATIONS OF THE DOCTRINE :

Decisions of the Privy Council (which was formerly the highest court of appeal for Malaysia) given on appeal from Malaysia or from another Commonwealth country, where the law are binding on the Malaysian courts.

1.

Decisions of the House of Lords (the highest court of appeal in U.K.) being a part of the common law are binding in Malaysia to the extent permitted under ss.3 and 5 of the Civil Law Act 1956.

2.

Decisions of the Federal Court (the highest court in Malaysia) are binding on all the courts below it. In the same way as the House of Lords of England is not bound by its own decisions, the Federal Court is probably not bound by its own decisions.

3.

This has however not been conclusively decided by case law yet.

Decisions of the Court of Appeal will be binding on all the courts below it. As this court’s position is analogous to the Court of Appeal of England, it is bound by its own previous decisions to the same extent as the latter.

4.

It was held in Young v Bristol Aeroplane Co Ltd that the English Court of Appeal (Civil Division) was bound by its own previous decisions as well as those of courts of co-ordinate jurisdiction. However this was subject to three exceptions, viz:

•

Where there are two conflicting decisions, the court may choose to follow either.i.

Khalid Panjang and others v PP.


Where its previous decision (though not expressly overruled by the House of Lords) cannot stand with a later decision of the House of Lords then the Court of Appeal is bound to refuse to follow its own previous decision.

ii.

Where its own previous decision was given per incurium it is not bound to follow the earlier decision.

iii.

In criminal cases the English Court of Appeal (Criminal Division) regarded itself as bound by its own previous decisions in the same way as the Court of Appeal (Civil Division), except where this would cause injustice: – R v Taylor

•

Decisions of the High Court are binding on all subordinate courts, but one High Court judge is not bound to follow the decision of another High Court Judge - Sundralingam v Ramanathan Chettiar

•

Subordinate courts are bound by precedents laid down by the Superior Courts but their own decisions do not bind any court.

•

ADVANTAGES:•

It helps to achieve certainty and uniformity in the law.i.The law developed through the cases is more practical as it is based on actual situations rather than on hypothetical ones.

ii.

Although judges of the lower court are generally bound by the decisions of the higher courts, there is also a degree of flexibility. For example, a judge may avoid following an earlier precedent if the case was decided ‘per incurium’

iii.

i.e. without taking into account a relevant legal principle or statute. He could also avoid it by distinguishing the precedent from the facts of the present case. This flexibility allows the law to be adapted to the changing needs of society.


Legislation refers to the laws which have been formally passed by the properly elected bodies, i.e. the Parliament (at the Federal level) and the State Legislative Assemblies (at the State level).

1.

Delegated legislation (also known as subsidiary legislation) refers to the rules and regulations, which are passed by some person or body under some enabling parent legislation. The Interpretation Act 1967 defines it as ‘any proclamation, rule, regulation, order, bye-law or other instrument made under any Act, Enactment, Ordinance, or other lawful authority and having legislative effect’.

2.

Act - Legislation passed by Parliamenta.Enactments - Legislation passed by State Legislative Assemblies (with the exception of Sabah and Sarawak, where they are called Ordinances)

b.

Refers to the law promulgated by the Yang Di-Pertuan Agong during state of emergency

1)

Laws passed during the period of Malayan Union2)The laws passed by the Sarawak State Legislative Assembly3)

Ordinance - Refers to 3 things :-c.

Types of legislation :-3.

LAW MAKING PROCESS

Federal Constitutiona.Standing orders of the Dewan Rakyat (House of Representatives)b.Standing orders of the Dewan Negara (Senate)c.

The law making process is stipulated in the :-1.

The initial step in the law making process is to prepare a draft of the proposed legislation called a bill.

2.

The bill is then introduced into Parliament. This may be done either in the Dewan Rakyat or the Dewan Negara. However, it is more commonly introduced in the Dewan Rakyat. It will then undergo the following stages:

3.

First reading – A mere formality. The Minister concerned would only mention the title of the bill and give oral notice as to when the second reading would be moved.

a.

Second reading – The Minister concerned would explain to the house the purpose of the bill and the main policy issues involved. (By this time they would have been printed and circulated to all members.) Debate on the bill is then carried out but this would be confined to its general principles.

b.

Committee stage – At the completion of the second reading the house will automatically resolve itself into a committee of the whole house. This is the committee stage during which the details of the bill are discussed in a less formal manner and amendments are proposed, if necessary. Sometimes the bill would be considered by a Special Select Committee instead of a committee of the whole house if a motion to that effect is agreed upon by the house. This is an ad hoc committee appointed for a particular purpose. The committee of selection will determine its size and nominate its members.

c.

Promulgate - To make known (a decree, for example) by public declaration

LegislationSaturday, 13 October, 20121:45 AM


committee of selection will determine its size and nominate its members.

At the completion of the committee stage the house will resume sitting. The findings of the Committee stage are reported back to the main House so that all the members are aware og what has transpired in the Committee stage.

d.

Third reading – This stage is another formality. The Minister concerned would move a motion that the bill be read a third time and passed. When the motion is accepted the bill is accordingly passed. The bill must then be submitted to the other house (i.e. to the Dewan Negara if the bill originated in the Dewan Rakyat and vice versa) where it would undergo the similar stages of consideration. When the bill has been passed by both Houses of Parliament, it is sent to the Yang di Pertuan Agong for Royal Assent. Upon receiving the Royal Assent the bill becomes law (i.e. Act of Parliament

e.

By an amendment to Article 66 of the Federal Constitution which came into force with effect from 20 January 1984, the Yang Pertuan Agung must assent to a bill within 30 days of it being presented to him.

4.

In the case of non-money bills, he may return the bill to the house from which it originated with a statement of the reasons for his objection to the bill. The bill will then be reconsidered by both the houses and if it is passed by them again after such reconsideration, he must give his assent within 30 days of it being re-presented to him, failing which it becomes law as if it had been duly assented to.

Delegated legislation (also known as subsidiary legislation) defined as the rules and regulations which are passed by some person or body under some enabling parent legislation.

1.

Interpretation Act 1967 - any proclamation, rule, regulation, order, bye-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legal effect

2.

Proclamations - made by YDAa.Rules & Regulation - made by ministersb.Orders and Bye-Laws - made by local authoritiesc.

Types of law:3.

Advantages & Disadvantages :4.

ADVANTAGES

Delegated legislation can be passed very quickly and is more flexible. This is because it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, subsidiary legislation can be just as speedily amended or even rescinded to meet the changing needs of society.

i.

Delegated legislation deals with the detailed rules necessary to implement the law. As Parliament does not have sufficient time to deal with such minute details, delegated legislation is the more efficient way to fulfil this need.

ii.

Some matters require the special skill and knowledge of experts in that area. Parliament itself may not have sufficient experts for this purpose. Thus, delegated legislation fulfils this need as well.

iii.

DELEGATED LEGISLATION


well.

DISADVANTAGES

The growth of delegated legislation goes against the doctrine of separation of powers. This is because law is not being passed by persons elected for that purpose (i.e. the legislature). Instead it is being passed by officers of government departments.

i.

Parliament is unable to effectively supervise the making of delegated legislation due to lack of time. As a consequence, many rules and regulations may have been passed without proper consideration of some very important factors.

ii.

Too much law is passed through subsidiary legislation without sufficient Parliamentary control.iii.

Subsidiary legislative can be controlled by:-5.

Consultationi.Prior consultation with relevant advisory bodies and interest groups are quite often required to be had before the finalisation of the subsidiary legislation. Sometimes the parent legislation makes such consultation compulsory. Disregard of this requirement may result in the subsidiary legislation becoming ultra vires and void.

Parliamentary Controlii.Parliament may exercise control over subsidiary legislation by repealing the parent legislation or the subsidiary legislation. However this is rarely done. More commonly, the parent legislation will require the rules or regulations made under it to be laid before the legislature. The rules or regulations will become effective if there is no negative resolution against it.

Occasionally the parent legislation may require the subsidiary legislation to be subject to an affirmative resolution. In such cases the subsidiary legislation will become effective only when such an affirmative resolution is passed.

Judicial Reviewiii.Where the subsidiary legislation is outside the powers contained in the enabling legislation, the court may declare such legislation as ultra vires the parent legislation and therefore invalid.

Publicityiv.As a general rule the subsidiary legislation must be published in the Gazette. It will become effective only from the date of such publication or on such other date as may be specified.

STATUTORY INTERPRETATION

The courts have evolved a number of rules to assist in the interpretation of a statute, where there is doubt as to the meaning of any part of it; to help the judge arrive at a fair judgment :-

•

The literal rulea.


The literal rulea.This is a rule by which a word or phrase is given its literal or ordinary grammatical meaning. According to this rule, if the words of the statute are in themselves precise and unambiguous they must be expounded in their natural and ordinary sense. This rule is very commonly used and sometimes appears to give a result contrary to the intention of Parliament.

The case Fisher v Bell (1961) is a good illustration of the application of this rule. In this case a shopkeeper was charged for offering for sale certain weapons, including ‘flick knives’, by displaying these knives in a shop window. The court held, applying the literal rule, that the display was not an offer for sale but merely an invitation to treat. Thus, the shopkeeper was held not guilty. The courts in Malaysia have also adopted this rule. This may be illustrated by the case of Kon Fatt Kiew v PP (1935), where the court held, applying the literal rule, that ‘rubber’ includes ‘scrap rubber’

The Golden Ruleb.

This rule is formed as a result of the inadequacy of the Literal Rule. The application of Literal Rule sometimes would produce and absurd result, then the Golden Rule will apply. The Golden Rule states that words in a statute must be interpreted according to their natural, ordinary and grammatical meaning, but to the extent that such an interpretation does not produce a manifestly absurd result.

An illustration can be seen in the case Re Sigsworth. In this case, a son murdered his mother. Under the rules of intestacy and the application of the Literal Rule, he would eventually inherit her property, being the only heir. The court applied the Golden Rule.

The criticism : GR is applied when it is only reasonable to apply; what is reasonable is a discretionary question, therefore what is reasonable to one judge might not be so to another.

The ejusdeym generis rulec.This is the rule by which, where a general word follows a class of specific words, the general word is interpreted to refer to words of that class only. This rule was adopted by the High Court in the case of Public Prosecutor v Pengurus Hong Trading & Co (1985), where the relevant part of the statute referred to a prohibition on tea containing any ‘Prussian blue, or lead or any compounds of lead or other matter …’. The question was as to the interpretation of ‘other matter’. The court applied the ejusdem generis rule and held that ‘other matter’ referred to things of the same category as ‘Prussian blue, lead or compounds of lead’.

The mischief rulec.This rule facilitates the court to interpret words or phrases which are unclear and ambiguous in the light of the statute as a whole. In such cases the courts will enquire into the ‘mischief’ behind the statute. i.e. the court will look into the overall intention of the legislature as discovered from a reading of the statute as a whole.

The matters that the court must consider were laid down in Heydon’s Case (1584) as follows:

(i) What was the common law prior to the Act?(ii) What was the mischief and deficiency for which the common law did not provide?(iii) What was the remedy that Parliament had provided for?(iv) What was the true reason for the remedy?


(iv) What was the true reason for the remedy?

This rule has been applied by the Malaysian courts in Lim Moh Joo v PP (1970).

In this case the Criminal Procedure Code required the Public Prosecutor to deliver a copy of a report to the accused not less than ten clear days before the commencement of the trial. The issue was whether the same procedure applied when the prosecution was by a private person. The court held that it did, saying that this was a case where the court must modify the language of the law to meet what must have been the intention of the legislature.


Human rights may be said to be the basic rights that all human beings are entitled to enjoy. By section 2 of the Human Rights Commission of Malaysia Act 1999, “human rights” refers to fundamental liberties as enshrined in Part II of the Federal Constitution.

1.

According to Kofi Annan, the Secretary General of the United Nations - human rights are the foundation of human existence and coexistence. Human rights are universal, indivisible and interdependent. Human rights are what make us human. They are the principles by which we create the sacred home for human dignity.

2.

FUNDAMENTAL LIBERTIES

So, what is fundamental liberties?1.The phrase, ‘Fundamental Liberties’, refers to certain rights, which may be considered as basic and essential to ensure the freedom of the individual. These rights are stated in the Federal Constitution and are said to be entrenched or enshrined because these rights cannot be altered or taken away altogether unless the Constitution itself is amended. This would be quite difficult as it requires a majority of two thirds of all the members of Parliament.

The provisions of the Federal Constitution which protect human rights are the fundamental liberties stated in Part II. These are listed and explained below:

2.

No person may be deprived of his life or personal liberty except in accordance with the law.

a.

By this provision, individuals are protected from being unlawfully imprisoned or put to death. An individual who is unlawfully detained, may obtain an order of the court through a writ of ‘habeas corpus’. This is an order of the court requiring that he be lawfully charged in court or be released. However, this right is not absolute. A person may still be deprived of his life or liberty in accordance with the law. Thus the Internal Security Act 1960, which was passed under powers conferred by Art.149 of the Constitution permits, among other things, preventive detention.

No person may be subject to slavery or forced labourb.

The constitution recognises that individuals should not be regarded as the property of others and thus bans all forms of slavery and forced labour. However, this right of the individual is given subject to the paramount interest of the nation. Thus, Parliament may make laws providing for compulsory national service.

No person can be punished under a law which was not in force when the alleged crime was committed

c.

This protects the individual from being charged with a crime that was not recognised as a crime at the time the alleged wrongful act was done. Thus, laws against crimes cannot be passed with retrospective effect.

A person cannot be tried more than once for the same crime of which he has already been acquitted or convicted earlier

d.

3 marks

Human Rights Commission of Malaysia Act 1999 @ SUHAKAM

Human Rights, SUHAKAMSaturday, 13 October, 20121:46 AM


been acquitted or convicted earlier

This right recognises that an individual should not be placed in a position of double jeopardy, where he is made to undergo more than one trial for the same offence if he has already previously been tried and either acquitted or convicted. However, this does not apply in cases where a higher court has quashed an earlier trial and ordered a re-trial.

Citizens cannot be discriminated against in relation to the providing of education, merely on grounds of religion, race, descent or place of birth. This is subject to Article 153

e.

Freedom of religionf.

The constitution also entrenches the right of the individual to profess, practice and propagate his own religion

However, as Islam is the religion of the country, restrictions may be placed upon the propagation of other religions among Muslims.

No citizen may be banished from the countryg.

However, this right is subject to exceptions whereby the Federal Government is permitted to deprive a person of his citizenship under certain circumstances.

Every citizen has the right to freedom of speech, peaceful assembly and associationh.

However, in the interests of security, public order or morality, Parliament may impose certain restrictions. For example, the Sedition Act 1948 provides that it is an offence to question the sovereignty, powers and prerogatives of the rulers and the special position of the Malays. Further, the freedom of speech does not entitle a person to defame another. A person defamed has a right to sue under the law of defamation.

It is important to note that a number of these liberties may be overridden by Art 149 and 150 of the Constitution. Among other things, Article 149 empowers parliament to make laws against subversion, whether or not an emergency is proclaimed.Such laws may be inconsistent with a number of the entrenched fundamental liberties such as liberty of the person, free movement and freedom of speech, assembly and association. An example is the Internal Security Act 1960.

SUHAKAM

Function1.

to promote awareness of, and provide education, relating to human rights;a.

to advise and assist the Government in formulating legislation and procedures and recommend the necessary measures to be taken;

b.

to recommend to the Government with regard to subscription or accession of treaties and other international instruments in the field of human rights; and

c.

to inquire into complaints regarding infringements of human rights.d.


acca f4 - malaysian legal system (self-made notes)

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