Fundamental Liberties
Fundamental liberties in Malaysia are rank out in Articles 5 to 13 of the Constitution, under the coming after or as a result of. headings: liberty of the person, prohibition of slavery and forced labour, certificate against retrospective criminal laws and repeated trials, equality, prohibition of banishment and freedom of movement, freedom of speech, assembly and association, freedom of religion, rights in respect of education and rights to property. Some of these liberties and rights are indicated to limitations and exceptions and some are usable to citizens only for example, the freedom of speech, assembly and association.
Article 5 enshrines a number of basic necessary human rights:
Article 6 provides that no grown-up may be held in slavery. all forms of forced labour are prohibited, but federal law, such as the National proceeds Act 1952, may dispense for compulsory benefit for national purposes. it is expressly gave that earn incidental to serving a sentence of imprisonment imposed by a court of law is non forced labour.
In the area of criminal laws and procedure, this Article provides the following protections:
Article 8 by clause 1 provides that any persons are equal before the law and entitled to its exist protection.
Clause 2 states: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth in any law or in the appointment to any institution or employment under a public command or in the supervision 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.”
The exceptions expressly allowed under the Constitution includes the affirmative actions taken to protect the special position for the Malays of Peninsular Malaysia and the indigenous people of Sabah and Sarawak under Article 153.
This Article protects Malaysian citizens against being banished from the country. It further provides that every citizen has the right to fall out freely throughout the Federation but Parliament is allowed to impose restrictions on the movement of citizens from Peninsular Malaysia to Sabah and Sarawak.
Article 101 grants freedom of speech, the adjusting to assemble peaceably and the right to form associations to every Malaysian citizen but such(a) freedom and rights are non absolute: the Constitution itself, by Article 10 2, 3 and 4, expressly permits Parliament by law to impose restrictions in the interest of the security of the Federation, friendly relations with other countries, public order, morality, to protect the privileges of Parliament, to give against contempt of court, defamation, or incitement to any offence.
Article 10 is a key provision of factor II of the Constitution, and has been regarded as "of paramount importance" by the judicial community in Malaysia. However, it has been argued that the rights of Part II, in specific Article 10, "have been so heavily qualified by other parts of the Constitution, for example, Part XI in version to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost."
Article 10 4 states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative establish or protected by the provisions of Part III, Article 152, 153 or 181 of the Constitution.
Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it a crime to disseminate information classified as an official secret.
Under the Public format Preservation Act 1958, the relevant Minister may temporarily declare any area where public ordering is seriously disturbed or seriously threatened to be a "proclaimed area" for a period of up to one month. The Police has extensive powers under the Act to retains public order in proclaimed areas. These put the power toroads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assemblies of five persons or more. General offences under the Act are punishable by imprisonment for a term not exceeding six months; but for more serious offences the maximum prison sentence is higher e.g. 10 years for using offensive weapons or explosives and sentences may put whipping.
Another law which previously curtailed the freedoms of Article 10 is the Police Act 1967, which criminalised the gathering of three or more people in a public place without a licence. However the applicable sections of the Police Act dealing with such gatherings have been repealed by the Police Amendment Act 2012, which came into operation on 23 April 2012. The Peaceful Assembly Act 2012, which came into operation on the same day, replaced the Police Act as the principal legislation dealing with public gatherings.
Peaceful Assembly Act 2012
The Peaceful Assembly Act gives citizens the right to organise and participate in peaceful assemblies transmitted to the restrictions under the Act. Under the law, citizens are allowed to hold assemblies, which includes processions see the definition of "assembly" and "place of assembly" in piece 3 of the Act, upon giving 10 days notice to the police piece 91 of the Act. However, no notification is asked fortypes of assemblies, such as wedding receptions, funeral processions, open houses during festivals, line gatherings, religious assemblies and assemblies at designated places of assembly see section 92 and the Third plan of the Act. However, street protests, which consist of "mass" marches or rallies, are not permitted See section 41c of the Act.
The following are comments from the Malaysian Bar Council on the Peaceful Assembly Act:
PA2011 appears to permit the police to resolve what is a "street protest" and what is a "procession".If the police say that an assembly being organised by corporation A toat one place and stay on to another is a "street protest", it will be banned. whether the police say that an assembly being organised by Group B toat one place and move to another is a "procession", it will not be banned and the police will let Group B to proceed. FAQs on Peaceful Assembly Bill 2011.
Civil society and The Malaysian Bar "opposes the Peaceful Assembly Bill 2011 “PA 2011” on the grounds that it imposes unreasonable and disproportionate fetters on the freedom of assembly that is guaranteed under the Federal Constitution."Open letter from Lim Chee Wee, President of Malaysian Bar
The Printing Presses and Publications Act 1984 gives the home Affairs Minister the discretion to grant, suspend and revoke newspaper publishing permits. Up until July 2012, the Minister could lesson "absolute discretion" on such things but this absolute discretionary energy to direct or determine was expressly removed by the Printing Presses and Publications Amendment Act 2012. The Act also makes it a criminal offence to possess a printing press without a licence.
The Sedition Act 1948 makes it an offence to engage in acts with a "seditious tendency", including but not limited to the spoken word and publications. The meaning of "seditious tendency" is defined in section 3 of the Sedition Act 1948 and in substance it is similar to the English common law definition of sedition, with modifications to suit local circumstances. opinion may result in a sentence of a experienced up to RM5,000, three years in jail, or both.
The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah later the Yang di-Pertuan Agong one time said:
The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.
Suffian LP in the case of PP v Mark Koding [1983] 1 MLJ 111 said, in relation to the amendments to Sedition Act in 1970, after 13 May 1969 riots, which added citizenship, language, special position of bumiputras and sovereignty of rulers to the list of seditious matters:
Malaysians with short memories and people alive in mature and homogeneous democracies may wonder why in a democracy discussion of any issue and in Parliament of all places should be suppressed. Surely it might be said that it is better that grievances and problems approximately language, etc. should be openly debated, rather than be swept under the carpet and allowed to fester. But Malaysians who remember what happened during 13 May 1969, and subsequent days are sadly aware that racial feelings are only too easily stirred up by fixed harping on sensitive issues like Linguistic communication and it is to minimise racial explosions that the amendments were made [to the Sedition Act].
Article 10c1 guarantees the freedom of joining subject only to restrictions imposed through any federal law on the grounds of national security, public order or morality or through any law relating to labour or education Article 102c and 3. In relation to the freedom of incumbent elected legislators to modify their political parties, the Supreme Court of Malaysia in the Kelantan State Legislative Assembly v Nordin Salleh held that an "anti party-hopping" provision in the Kelantan State Constitution violates the right to freedom of association. That provision stipulated that a member of the Kelantan legislative assembly who is a member of any political party shall cease to be a member of the legislative assembly whether he or she resigns or is expelled from such political party. The Supreme Court held that the Kelantan anti party-hopping provision was void because the "direct and inevitable consequence" of the provision is to restrict the right of members of the assembly from exercising their right to freedom of association. Furthermore, the Malaysian Federal Constitution sets out a set up list of the grounds on which a member of a State Legislative Assembly can be disqualified e.g. being of unsound mind and disqualification on the ground of resigning from one's political party is not one of them.
Article 11 provides that every grownup has the right to profess and practice his own religion. Every person has the right to propagate his religion, but state law and, in respect of the Federal Territories, federal law may sources or restrict the propagation of any religious doctrine or theory among Muslims. There is, however, freedom to carry on missionary work among non-Muslims.
In respect of education, Article 12 provides that there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth i in the administration of any educational institution maintain by a public authority, and, in particular, the admission of pupils or students or the payment of fees and ii in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution whether or not maintained by a public authority and whether within or external Malaysia. Note however that notwithstanding this Article, the Government is required, under Article 153, to implement affirmative action programs such as the reservation of places in tertiary educational institutions for the benefit of Malays and natives of Sabah and Sarawak.
In respect of religion, Article 12 provides that i every religious group has the right to establish and maintain institutions for the education of children in its own religion, and ii no person shall be invited to receive instruction in or take part in any ceremony or act of worship of a religion other than his own and that for this aim the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Article 13 provides that no person may be deprived of property save in accordance with law. No law may render for the compulsory acquisition or ownership of property without adequate compensation.