See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/337906624
THE ROLE OF THE JUDICIARY IN THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS: THE MALAYSIAN EXPERIENCE
Article · December 2019
CITATIONS READS 0 98
All content following this page was uploaded by Lavan Nj on 12 December 2019.
The user has requested enhancement of the downloaded file.
[2017] 1 LNS(A) lxxv Legal Network Series 1
THE ROLE OF THE JUDICIARY IN THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS: THE MALAYSIAN EXPERIENCE
by
LAVANIYAN NATHAN JOTHY*
INTRODUCTION/ABSTRACT
Human rights as a concept has evolved tremendously since the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly on 10 December 1948. The Declaration has given rise to many other important human rights documents such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966, the Convention on the Prevention and Punishment of the Crime of Genocide in 1951 and the Convention on the Rights of the Child. Not only did the UDHR become the catalyst for international conventions, it also found its way into many national constitutions and regional conventions, where it became the founding legal document for many aspects of state relations with its citizens. For the purposes of this article, the national judiciary of Malaysia will be the focus of our analysis on how they have decided disputes in relation to human rights questions, with specific reference to issues relating to the right of religion and freedom of expression, association and assembly within the national and international law framework.
[2017] 1 LNS(A) lxxv Legal Network Series 2
HUMAN RIGHTS - THE CURRENT DEBATES
Throughout human history, the human penchant for violence and abuse of other humans is well recorded and known.[1] The Haiti 1890 Massacre, the Armenian Massacre, the Holocaust, the Hutu and Tutsi conflict in Rwanda, Khmer Rouge brutality in Cambodia, Islamic State brutal and inhuman regime in some parts of Syria and Iraq, genocide of the Bosnian people in Srebrenica by the Serbian army, the Darfur crisis and the continued denial of the human rights of Palestinian people in the hands of Israel are a few examples where human lives have become both meaningless and inconsequential in political and military conflicts, or where a repressive government is in power. Despite these dark episodes in human history, such heinous crimes against humanity continue unabated until the present day. This is despite the tremendous progress the human race has made in terms of technology, science, art, entertainment, social movements and justice and all other progress since the age of reformation and reason.
The problem with international human right protection is the relationship that exists between 2 different states in relation to each other. Generally no one state can interfere with the jurisdiction of other states. Article 4 of the United Nations Charter expressly states that “all members shall refrain in their international relations from the threats or use of force against the territorial integrity or political independence of any state” and Article 2 of the Charter states that “all members shall settle their international disputes by peaceful means”. These two articles of the abovementioned instrument recognised the general right of sovereignty of the individual
[2017] 1 LNS(A) lxxv Legal Network Series 3 state, which cannot be breached other than as provided in Chapter 7 of the Charter.
There are conflicting prevailing views on how international documents on human rights can be used at the national or municipal levels. In this regard, Shaw (2005)[2] stated that “positivism stresses the overwhelming importance of states and tend to regard international law as founded upon the consent of states… this theory is known as dualism (or sometimes as pluralism) and stress that the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on or overrule the other”. The author continues that “those writers who disagree with this theory and who adopt the monist approach… the monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivist”. In elaborating on this monist approach, Evans (2010)[3] stated that “in the view of the monist, there is a single legal system with international at its apex and all national constitutions and other legal norms below it in the hierarchy. There is no need for international obligations to be transformed into rule of national law and in any case of apparent conflict, the international rule prevails.”
Despite the many international human rights documents, the abuse of human rights nevertheless continues in many countries, especially those countries that are classified as ‘third world countries’. Globalization of trade and trade agreements have placed emphasis on the wealth creation capacity of states, rather than the importance of affording adequate protection to vulnerable groups of people such as migrant workers, those
[2017] 1 LNS(A) lxxv Legal Network Series 4 who are socially deprived of wealth due to their indigenous origin, discrimination based on race, religion or gender and forced laborers. Human rights are also continuously suppressed when viewed in relation to national security. In spite of the existence of conventions such as the International Convention On The Protection of the Rights of All Migrant Workers and Members of their Families, International Convention On the Elimination of All Forms of Racial Discrimination, Convention On the Elimination of All Forms of Discrimination against Women and Convention on the Rights of the Child and conventions pertaining to the rights of detainees and prisoners, the spectrum of human rights as a whole does not reflect any positive note. Human Rights Watch’s Executive Director Kenneth Roth states as follows in their annual human rights report:
“The world has not seen this much of tumult for a generation. The once-heralded Arab Spring has given way almost everywhere to conflict and repression. Islamist extremists commit mass atrocities and threaten civilians through the Middle East and parts of Asia and Africa. A Cold War-type tension has revived over Ukraine, with even a civilian jetliner shot out of the sky. Sometimes it can seem as if the world is unraveling. Many governments have responded to the turmoil by downplaying or abandoning human rights. Governments directly affected by the ferment are often eager for an excuse to suppress popular pressure for democratic changes…some of these governments continue to raise human right concerns, but many
[2017] 1 LNS(A) lxxv Legal Network Series 5
appear to have concluded that today’s serious security threats must take precedence over human rights”.[4]
The effectiveness of international law in relation to the protection of human rights therefore is put into question with the continued abuse and breach of human rights that occur around the world. Sohn argued that “although the existence of the norm embodied in these documents cannot be denied, controversy has been raging for almost forty years about their binding character and practical effect. It has been argued, in particular that most of these documents are soft law, rather than hard law. According to this view, these documents contain no more than mere guidelines, which states need not follow. Furthermore, there are no effective means of implementing the document, and violators go unpunished”.[5] This argument is further solidified by the fact that any reference to the International Court of Justice is only by the state parties against another state and not based on individual reference.[6]
If international documents relating to human rights merely provide the guidelines for the protection of human rights, do states that incorporate this document into their national laws provide adequate and necessary protection when allegations of human rights abuses or breaches are raised at the national courts level? For this purpose, it is necessary first to identify the function and the role of the judiciary and the courts in upholding laws and in the protection of human rights.
THE JUDICIARY AND THE ROLE OF JUDGES
[2017] 1 LNS(A) lxxv Legal Network Series 6
In a civil society, “ubi societas ibi jus” prevails and it is accepted that a necessary order must be maintained so that society can function in its expected and natural ways. Law is made, promulgated and regulated. When this law is accepted by civil society, the enforcement mechanism is established to ensure that the law is followed and those who breach these sets of law will be sanctioned. The responsibility for that sanction rests with what we call the judiciary. The judiciary consists of men and women of such great knowledge in the law that they are entrusted to resolve our disputes. These judges or arbitrators of law, as the civil society calls them, are not only responsible for ensuring that the law made by civil society is applied according to the wishes and intent of that society, but are also responsible for ensuring that the law is applied in such a way that certain principles and rules relating to the law are not derogated. Principles relating to justice, fairness, equity, the question of rights and access to law will all become an important question that a judge needs to answer in order for him to arrive at a just decision.
In Malaysia, all superior court judges in the judiciary is a constitutional appointment and by virtue of the Federal Constitution “shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers”.[7] The role of Executive nevertheless is inevitable in the appointment of the judges, and in order to have some form of transparency in the appointment and selection of these judges, the Judicial Appointment Commission Act 2009 provides the infrastructure for judicial appointment of superior court judges in Malaysia within the provisions of the Constitution.[8] Section 2 of the Commission
[2017] 1 LNS(A) lxxv Legal Network Series 7 requires the Prime Minister to uphold the continued independence of the judiciary and he must have regard to the need to defend that independence, the need for the judiciary to have the support necessary to enable them to exercise their functions and the need for public interest to be properly represented with regard to matters relating to the judiciary, the administration of justice and related matters. Section 23(2) provides that in selecting the candidates for the post of judges, the Commission must take into account certain selection criteria, which include:-
a) Integrity, competence and experience;
b) Objective, impartial, fair;
c) Decisiveness, ability to make timely judgment and good legal writing skills;
d) Industriousness and ability to manage cases well; and
f) Physical and mental health.
Richard Posner[9] state eloquently that:
“To regard oneself and be regarded by others, especially one’s peers, as a good judge requires conformity to the accepted norms of judging. One cannot be regarded as a good judge if one takes bribes, decides cases by flipping a coin, falls asleep in the courtroom, ignores legal doctrine, cannot make up one’s mind, bases decision on personal attractiveness or unattractiveness of the litigant or their lawyers or decide cases on the basis of “politic”… Virtually all
[2017] 1 LNS(A) lxxv Legal Network Series 8
judges would be distressed to be regarded as politicians in robes, because if they thought of themselves in that light they could not regard themselves as being good judges, and this would deny them a major satisfaction of a judgeship and might well drive them into practice, teaching, or some other nonjudicial vocation”
On a larger scale, the judiciary is an umpire to almost all branches of law. The judge in a given particular case, needs to find the relevant facts, determine the relevant law and finally apply the law to the facts as it is found. In executing this task, the judge might even end up “making the law”, by clarifying, developing or by supplementing the existing legal rule or articulating a new legal concept. In performing these functions, the court not only has to evaluate any existing law but also must make a decision that at end of the day it will achieve its ultimate purpose ie, to dispense justice.[10] The question that a judge is usurping the role of legislature and parliament when he “makes the law” does not arise in a democratic society, as the role of the judge as the beacon and the protector of the Rule of Law is a cardinal principle in the idea of justice.[11]
The establishment of our superior court is found in Article 121(1) of the Federal Constitution which states that the two High Courts of co-ordinate jurisdiction ie, the High Court of Malaya and High Court of Sabah and Sarawak, together with any other inferior court, shall have such jurisdiction and power as may be conferred by or under federal law. The question thus is, do these provisions of the Constitution take away a judge’s judicial power? The term judicial power is defined in the of-quoted case of Huddrat Parker v. Moorehead[12] where Chief Justice Samuel
[2017] 1 LNS(A) lxxv Legal Network Series 9
Griffith defined the term as “the power which every sovereign authority must necessarily have to decide controversies between its subjects or between itself and its subjects, whether the right relates to life, liberty or property”.[13] In the Privy Council case in Hinds v. The Queen Director of Public Prosecution,[14] Lord Diplock describes judicial power of judiciary in the following terms:
“All Constitutions on the Westminster model deal under separate chapter headings with the legislature, the executive and the judicature. The chapter dealing with the judicature invariably contains provisions dealing with the method of appointment and security of tenure of the members of the judiciary which are designed to assure to them a degree of independence from the other two branches of government. It may, as in the case of the Constitution of Ceylon, contain nothing more. To the extent to which the Constitution itself is silent as to the distribution of the plenitude of judicial power between various courts, it is implicit that it shall continue to be distributed between and exercised by the courts that were already in existence when the new Constitution came into force. What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution”.
[2017] 1 LNS(A) lxxv Legal Network Series 10
At the Federal Court in the case of PP v. Kok Wah Kuan,[15] the majority decision took a rather regressive view on the concept of judicial power on a post-amendment interpretation of Article 121. This case concerns the power of the Yang di-Pertuan Agong under section 96 of the Child Act 2001 to determine the length and severity of the sentence that is to be served by a child offender in a case where the sentence of death cannot be made against him. Abdul Hamid Mohamad PCA, elaborated that:
“After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that “judicial power of the Federation” as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts, we will have to look at the federal law.”
Richard Malanjum CJ nevertheless disagreed on this point. He stated that:
“At any rate, I am unable to accede to the proposition that with the amendment of Article 121(1) of the Federal Constitution (“the amendment”) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such a proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to the law for those who come before them. The
[2017] 1 LNS(A) lxxv Legal Network Series 11
amendment which states that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” should by no means be read to mean that the doctrines of separation of powers and independence of the judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment, our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.”
In Semenyih Jaya Sdn Bhd v. Pentadbiran Tanah Daerah Hulu Langat & Another Case,[16] the appellant and the applicants sought to challenge the constitutionality of the Land Acquisition Act 1960 made by way of the Land Acquisition (Amendment) Act 1997. The appellant and the applicants filed objections against the Land Administrator’s award, disputing the amount of compensation awarded arising out of the acquisition of part of their land. The appeal and the reference focused on the changes made to the Land Acquisition Act 1960 by the Land Acquisition (Amendment) Act 1997, in particular, section 40D which empowers assessors sitting with the judge in the High Court to make the final determination on the amount of reasonable compensation for the acquisition of land under the Land Acquisition Act; and sub-section 40D(3) and the proviso to sub-section 49(1) which preclude appeals against the High Court decision on the amount of compensation. The Federal Court observed:
“Section 40D of the Act thus imposes on the judge a duty to adopt the opinion of the two assessors or elect to concur with the decision
[2017] 1 LNS(A) lxxv Legal Network Series 12
of either of them if their decisions differ from each other in respect of the amount of reasonable compensation arising out of the acquisition. The legislative intent is clear and unambiguous. As highlighted by the Court of Appeal in Jitender Singh Pagar Singh & Ors v. Pentadbir Tanah Wilayah Persekutuan & Another Appeal [2012] 2 CLJ 165, a High Court Judge cannot come to a valuation different from that of the assessors, or if different, from either one of them. Wherefore now stands the judge? It would appear that he sits by the sideline and dutifully anoints the assessors’ decision. Section 40D of the Act therefore effectively usurps the power of the court in allowing persons other than the judge to decide on the reference before it. This power to decide a matter which is brought before the court is known as judicial power and herein lies the rub. What is “judicial power”?”
Zainun Ali FCJ in a landmark ruling held that despite the amendment made to Article 121(1), it nevertheless does not remove the judicial power of the court. Her Ladyship stated that:-
“In Dato’ Seri Anwar Ibrahim v. PP [2010] 7 CLJ 397, the Federal Court held that the provision of Article 121 of the Constitution is to be read in connection with its shoulder note (which contains the words ‘judicial power’) and interpreted in this light. The shoulder note in a written Constitution therefore furnishes some clue as to the meaning and purpose of the article. (see also Kok Wah Kuan (CA) and Bengal Immunity Co Ltd v. State of Bihar AIR 1955 SC 661). The legal consequence is that Article 121(1) of the Federal
[2017] 1 LNS(A) lxxv Legal Network Series 13
Constitution states that judicial power or the power to adjudicate in civil and criminal matters brought to the court is vested only in the court. The same position was adopted in an earlier decision of the Federal Court in the dissenting view of Richard Malanjum (CJSS) in Kok Wah Kuan (FC) and curiously, as did the majority of the Court of Appeal in the same case; Kok Wah Kuan v. PP (CA) . With respect, the majority decision of the Federal Court in Kok Wah Kuan appears to have given a narrow interpretation of art. 121(1) of the Federal Constitution.”
Her Ladyship added further that:
“Thus, it is clear to us that the 1988 amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:
(i) The doctrine of separation of powers; and
(ii) The independence of the Judiciary.
With the removal of judicial power from the inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign. This result was manifestly inconsistent with the supremacy of the Federal Constitution enshrined in Article 4(1) of the Federal Constitution. It is worthwhile reiterating that Parliament does not have power to amend the Federal Constitution to the effect of undermining the features as stated in (i) and (ii) above for the
[2017] 1 LNS(A) lxxv Legal Network Series 14
following reasons: The effect of (amendment) sub-s. 8(a) of the Amending Act A704[17] appeared to establish Parliamentary supremacy; this consequentially suborned the Judiciary to Parliament, where by virtue of the amendment, Parliament has the power to circumscribe the jurisdiction of the High Court. Consequentially this has the unfortunate effect of allowing the executive a fair amount of influence over the matter of the jurisdiction of the High Court.
This decision, in essence, did not declare outright the amendment to Article 121 as unconstitutional, but reiterated that the separation of powers between the executive, legislature and judiciary is well preserved within our Federal Constitution. This notion of separation of power holds as it was originally spoken by Montesquieu as follow:-
“there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of such subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression”[18]
A judge’s appointment, by its very nature, is an appointment to exercise his judicial role.[19] Article 124 (2) of the Federal Constitution requires the judge of the superior court to take and subscribe to an oath of office and allegiance, which is set out in the Sixth Schedule in relation to his judicial duties in whatever office.[20] Further, Article 128 of the Federal
[2017] 1 LNS(A) lxxv Legal Network Series 15
Constitution allows the Federal Court to determine the validity of any law made by the Parliament or the legislature of the State. In addition to this Article, all legislations and statutes of law must allow the exercise of judicial power, the only limitation being the jurisdiction of the court to decide the subject matter concerned as prescribed by the particular legislation and the hierarchy to which the judge performs his judicial role. This limitation again is only for the purpose of ensuring that a judge does not have so much power at his disposal that it is rendered open to abuse.
The judicial power of the judiciary therefore cannot be removed or allowed to be exercised by any other entity or person in whatsoever manner, regardless of how widely the statute or legislation is worded to appear to undermine that power.[21] S.K. Foo[22] has rightly pointed out that:-
“The 1988 amendment has therefore been completely inefficacious in achieving its intended, or indeed any, effect. It has no capability whatsoever to shift the source of the judicature’s basic power from the Constitution to Parliament, and consequently, it is still the constitutional judicial power (and not some “new” statutory judicial power) which is vested in the Article 121 courts. Incredible as it may seem for such an important constitutional amendment, all three drafting devices applied to Article 121(1) by the draftsman -- the deletion of the vesting formula, its substitution with “There shall be”, and the insertion of the “jurisdiction and powers” provision have failed to produce any substantive change. And clearly, apart from them, there is nothing else in the textual changes to Article 121 which could possibly produce any other effect.”
[2017] 1 LNS(A) lxxv Legal Network Series 16
Now when a judge takes upon himself to exercise his judicial power or in some cases, judicial activism, does he propose to do so by choice or by necessity? If it is by choice, then the question of free will and the limit of that choice will be raised. On the other hand, if it is by necessity, then the question of authority, provision of relevant law or statute and the jurisdiction to make that decision will be raised. Whether a decision is made out of choice or necessity, a judge who takes upon himself such a task must first and foremost give regard to the supremacy of the Constitution and the preservation of the rule of law.[23] Constitutional application, needless to say, requires interpretation of its own. In Dato Menteri Othman bin Baginda & Anor v. Dato Ombi Syed Alwi Bin Syed Idrus,[24] Raja Azlan Shah CJ in the Federal Court stated the following well-known legal principle:
“In interpreting a constitution, two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way — “with less rigidity and more generosity than other Acts” (see Minister of Home Affairs v Fisher (1979 3 All ER 21). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law.
[2017] 1 LNS(A) lxxv Legal Network Series 17
Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity” was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1979] 3 All ER 129, pg 136.
Constitutional protection of fundamental rights requires a balanced approach between safeguarding the interests of the state and the needs of the people. We cannot have a judiciary that doubts questioning the validity of any law that is perceived to be made in order to justify the trampling of human rights in this country. The existence of security laws such as the National Security Council Act 2016, Prevention of Terrorism Act 2015 and Security Offence (Special Measures) Act 2012 together with the Sedition Act 1947 and the Printing Presses and Publications Act 1984, although argued to balance the rights of citizens with the needs of the State to preserve peace and harmony, nevertheless must not be at the expense of legitimate inquiry of the Executive’s or the State’s nefarious actions. The judiciary must be bold in striking down any statute or legislation that impairs any legitimate exercise of fundamental rights that is provided in the Federal Constitution.[25]
[2017] 1 LNS(A) lxxv Legal Network Series 18
The problem faced by the judges in assuming their role as the protector of the Constitution is their need to strike a balance between safeguarding the interests of the Federation to ensure a safe and secure nation, and at the same time ensure there is no unwarranted transgression of the fundamental rights protected by the Federal Constitution. The Federation needs to ensure the various aspects of safety of the country from various threats, whether internal or external. The Lahad Datu [26] intrusion and the constant global threat of Islamic State terrorist activities[27] are some of the incidents that have tried to destabilise our national sovereignty and security. This is not new for Malaysia, having seen many forms of security threats during her formative years such as the Communist insurgency[28] and during our Confrontation with Indonesia.[29]
Although the Federal Constitution via Article 149 and 150 allow security measures to be taken in the event of an act of subversion or an act prejudicial to public order and in cases of grave emergency,[30] these powers given under these Articles are wide and appear to be unrestricted, and the elected Government of the day is given a free hand to determine what situation can be considered as an act of subversion or prejudicial to the public interest, and in the case of a national emergency being declared, the Yang Di Pertuan Agong has almost absolute power in the exercise of such powers.[31] As such, since the Federal Constitution allows the imposition of laws that would have far-reaching consequences, the court is duty-bound to ensure that such exercise of power is done within the boundaries set by the law. The judiciary ought to be reminded that it was
[2017] 1 LNS(A) lxxv Legal Network Series 19
Raja Azlan Shah LP speaking in the case of Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lembah Enterprise[32] who said that:
“Every legal power must have limits, otherwise there is dictatorship… Every discretion cannot be free from legal restraint; where it is wrongly exercised. It becomes the duty of the courts to intervene.”
Beyond these security issues, the judiciary has on many occasions, been called upon to arbitrate other aspects of fundamental rights, such as the right of religion where conflict arose between the freedom of religion which is guaranteed under Article 11 of the Federal Constitution and Article 3 which states that Islam is the religion of the Federation. The court has also grappled with the issue relating to freedom of expression in the form of speech, assembly and association as provided under Article 10[33] and the controversial issues relating to the equality clause in Article 8 of the Federal Constitution and its interpretation in relation to gender [34] and transgender communities.[35] The judiciary has been called to adjudicate matters when conflict arose as to the extent of Federal and State Constitutional relations[36] and the right of an elected Member of Parliament[37] and the conundrum posed in relation to the right to life provided under Article 5 of the Federal Constitution.[38]
The judiciary as the third pillar of government is the safety net against the tyranny of uncontrolled politicians who would act in the name of majority rule. Judges are expected to uphold the Constitution, even if it questions their own moral standing and ethical views. In a society like ours where
[2017] 1 LNS(A) lxxv Legal Network Series 20 there exists a variety of competing interests and values, the judiciary has always been the final frontier to which ordinary people would seek justice against any wrong done toward them, and what is expected from the judiciary is the time honored principle that judges should discharge their role without fear or favor.
MALAYSIA AND HUMAN RIGHTS LAW - THE DOMESTIC LEGISLATION AND INTERNATIONAL LEGAL NORMS
Although human rights is argued to be a universal right that does not need specific written documents, states nevertheless have a social contract with their citizens to ensure that this right is given certainty in the form of law or legislation. The Federal Constitution of Malaysia has listed certain rights, known as Fundamental Liberties, in Part II of the Constitution. The Reid Commission that drafted the Constitution provided in Chapter IX, entitled Fundamental Rights, that a Federal Constitution should also, apart from defining the relationship between the Federation and the states and guaranteeing the rights of the Federation and the states, define and guarantee certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life. Thus, what the Federal Constitution has done is put fundamental rights such as the right of freedom of assembly and speech, the right to religion, right to education and other fundamental rights as part of the supreme law of the country, taking into consideration Article 4 of the Federal Constitution which declared that “this Constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”. This
[2017] 1 LNS(A) lxxv Legal Network Series 21 therefore suggests that the fundamental rights in Part II of the Federal Constitution is part of supreme law that can only be removed or denied within the limits set by the Federal Constitution itself.
Despite the protection under the Federal Constitution, there is always a question of how effective this right is in actual practice without any arbitrary interference from the government or states in democratic countries. The establishment of the Human Rights Commission via the The Human Rights Commission of Malaysia Act 1999 to protect the fundamental rights enshrined in Part II of the Constitution is viewed as a small step towards the development of better human rights protection mechanisms in Malaysia. The Act defined human rights as the fundamental liberties as enshrined in Part II of the Federal Constitution. A perusal of the function and power of the Commission would indicate to us that its role is merely an advisory one, and it also serves to promote human rights awareness[39] through activities which include:-
a) The promotion of, and performance of educational and awareness-raising activities in relation to, human rights;
b) Advising and assisting the government on formulating legislation or administrative directives on human rights;
c) Recommending international human rights instruments for the adoption and consideration by the government; and
d) Inquiring into complaints regarding the infringement of human rights, as provided under section of 12 of the Act.
[2017] 1 LNS(A) lxxv Legal Network Series 22
The Commission’s powers to inquire on any infringement of fundamental rights upon receiving a complaint by any person or group of persons is one of the most important functions performed under the Act. To date, the Commission has inquired and made 10 reports on complaints on the infringement of fundamental rights.[40] Although regard can be made to the Universal Declaration of Human Rights, it extends only as far as it remains consistent with the Federal Constitution. Lobo[41] has argued that section 4(4) of The Human Rights Commission of Malaysia Act made the Universal Declaration as supplemental to Part II of the Federal Constitution, and that the provision of The Human Rights Commission of Malaysia Act 1999 is an extension or an appendage to Part II of the Constitution. He further argued that because of the specific reference to Part II of the Federal Constitution within the Act, the provision of the Human Rights Commission of Malaysia Act 1999 has been put on the same pedestal as Part II of the Federal Constitution, which includes reference to the Universal Declaration of Human Rights, and therefore, the Universal Declaration of Human Rights has by virtue of this, been incorporated into domestic law in Malaysia.
The Federal Government has on many occasions enacted statutes and legislations that are very often seen as restricting the rights of the citizens to exercise their fundamental rights. However, it must be noted that the Federal Constitution allows certain reasonable restrictions to be imposed on the aforementioned fundamental rights, and the authority for such restrictions is found within the Federal Constitution itself. For example, the freedom of movement can be restricted in the interest of public order
[2017] 1 LNS(A) lxxv Legal Network Series 23 or public health[42] and when it is it deemed necessary or expedient in the interest of the security of the Federation, public order or morality, and under such circumstances, the freedom of speech, assembly and association as guaranteed under the Constitution can be restricted. Some of the legislations that caused such concern include The Security Offence (Special Measures) Act 2012, Sedition Act 1948, Societies Act 1966, Special Measure Against Terrorism In Foreign Countries Act 2015, Prevention of Terrorism Act 2015 and many other statutes that to a certain extent have restricted fundamental human rights.[43]
Since domestic legislation appears to lack the capacity to afford strong protection against human rights violations on the grounds that states can impose restrictions on their enjoyment, the Malaysian judiciary is very often called upon to decide on issues relating to human rights violations in relation to international human rights instruments or documents. However, there remains the question of whether Malaysia, as a sovereign state, is obligated to accept any international legal documents within its domestic legal structure. Malaysia is a dualist State in that any international legal document ratified must be made into domestic legislation in order to be accepted as national law. Article 160 of the Federal Constitution clearly states that law is defined to “include written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. This definition has effectively excluded any application of international legal document or precedents. Further, the law-making process within the Federal Constitution is divided between the Federation and the States.
[2017] 1 LNS(A) lxxv Legal Network Series 24
While the Parliament can make law for the whole of the Federation, [44] it is confined to making “law with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First List or Third List set out in the Ninth Schedule”).[45] A perusal of the Federal List shows that Parliament can make law in relation to any treaties, and implementation of the treaties, agreements and conventions with other countries. It also includes law-making power in relation to international organizations, participation in international bodies and implementation of decisions taken thereat. On the other hand, the State may make laws with respect to any of the matters enumerated in the State List (that to say, the Second List set out in the Ninth Schedule) or the Concurrent list. One of the most important distinguishing features of the Federal law in comparison with state law-making power is that any matter of religion is the sole prerogative of the individual states[46] and further each state has a Ruler or Sultan who is identified as the supreme head of the religion. The state power in relation to religion would include matters relating to Islamic law and personal and family laws of persons professing the religion of Islam, including Islamic law relating to succession, gift, wakaf and marriage as well as divorce.
Malaysia is a party to the following human rights documents[47]:-
a) Convention on the Right of the Child - Acceded on 17 February 1995;
[2017] 1 LNS(A) lxxv Legal Network Series 25
b) Convention on the Elimination of All Forms of Discrimination against Women - Acceded on 5 July 1995 but with reservation;[48]
c) Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institution and Practices similar to Slavery - Ratified on 18 November 1957;
d) Convention on the Nationality of Married Women - Ratified on 24 February 1959;
e) Convention on the Prevention and Punishment of the Crime of Genocide - Ratified on 20 October 1994; and
f) Convention on the Rights of Persons with Disabilities - Signed the convention on 8 April 2008.
The Federal Government to this date has not ratified or acceded to the International Convention on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Status of Refugees 1951. All these conventions collectively are important human rights documents that confer certain rights and privileges that one is entitled to simply by virtue of being human, and the failure of the Federal Government to give recognition to these Conventions is regrettable. Hathaway (2005) opined that the failure of the state to recognise international documents in relation to human rights law widens the gap
[2017] 1 LNS(A) lxxv Legal Network Series 26 between the declared universal law and the state practice, which results in an expansive interpretation of universal human rights norms which may inadvertently contribute to the destruction of a meaningful system of general interstate obligations toward humankind.[49] This universalist approach to human rights argues that since the value of human rights is the same no matter where humans exist, an equal legal protection should therefore be accorded in protecting human rights, and since these international documents are applicable to all persons regardless of their status and identity, states therefore must accept it unequivocally.[50] Donnely (2007) stated that “human rights, are ordinarily understood to be the rights that one has simply because one is human. As such, they are equal rights… human rights are also inalienable rights, because being or not being human usually is seem as an inalterable fact of nature, not something that is either earned or can be lost. Human rights are thus “universal” rights in the sense that they are held “universally” by all human beings”.[51] The Federal Government viewed this to be a conflict between universal human rights and domestic sovereignty as well as a conflict between Asian values and international human rights practices. This conflict often arises when international legal instruments seek to impose human right norms on local cultures. This relativist approach to human rights principles argues that any imposition of human rights must primarily take into account the local, historical and cultural backgrounds of the individual states.[52] This relativism is even reflected in the ASEAN Declaration of Human Rights adopted by the ASEAN member states on 18 November 2012. Article 6 of the Declaration in clearest terms echoes that the enjoyment of human rights and fundamental freedoms must be balanced
[2017] 1 LNS(A) lxxv Legal Network Series 27 with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives. It is ultimately the primary responsibilities of all ASEAN Member States to promote and protect all human rights and fundamental freedoms. Article 7 further elaborates that the realization of human rights must consider the regional and national contexts, bearing in mind different political, economic, legal, social, cultural and religious backgrounds. Commenting on the Declaration, Clarke (2012) argued that “the Declaration’s features may suggest that it espouses a cultural relativist position, in opposition to the universalist norms of international human rights law, and therefore outside the interdependent structure of regional and global human right systems.”[53]
If Malaysia adopts the relativism approach to human rights and takes the stand that international legal documents can only be relevant if it is made into domestic legislation, the question that arises is how human rights in Malaysia can survive with these limitations found within the law. We will view this matter in the background of two fundamental human rights, that is, the right to religion and the freedom of speech, expression, assembly and association which are guaranteed by our Federal Constitution.
THE RIGHT TO RELIGION AND PRACTICE OF RELIGION
The Malaysian Federal Constitution is clear on the right of religion for all. Article 11 of the Federal Constitution stated that every person has the right to profess and practice his religion and, subject to Article 11(4), to propagate. As specified under Article 3, Islam is the religion of the
[2017] 1 LNS(A) lxxv Legal Network Series 28
Federation; but other religions may be practiced in peace and harmony in any part of the Federation. Malaysia has yet to ratify any convention on matters relating to religion. Article 18 of the Universal Declaration of Human Rights specifies that “everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.[54] But these provisions of the Declaration which give a general right of religion is not compatible with the Federal Constitution as Article 11(4) imposes restrictions on any religion other than Islam being propagated to those who profess the said religion. Since matters related to the practice of Islam are within the state prerogative and the Ruler of each state is head of the religion, it would be almost impossible to adopt such freedoms within the Constitution. There appears therefore to be a conflict between the freedom of religion entrenched in the Federal Constitution and the position of Islam as the religion of Federation. The Reid Commission Panel stated that “we have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not affect the civil rights of non-Muslims in any way. In the memorandum submitted by the Alliance it was stated the religion of Malaysia shall be Islam. These observances of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religion and shall not imply that the State is not a secular State”.
[2017] 1 LNS(A) lxxv Legal Network Series 29
The Malaysian judiciary has followed this spirit of the law and early decisions on matters relating to the freedom of religion indicate that the courts have been liberal in their interpretation of freedom of religion. In the case of Jamaluddin Othman v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor[55] the applicant was detained under the now-repealed Internal Security Act 1960, as the applicant, being a Muslim, was involved in activities to propagate Christianity among Malays. The Supreme Court disagreed with the argument made by the prosecutor as to why the applicant’s detention was necessary in order to prevent him from acting in a manner prejudicial to the security of Malaysia. The Supreme Court held that mere participation in meeting and seminars for the dissemination of Christianity among Malays cannot make a person a threat to the security of the country, as a person has the right to profess and practice his religion, which is guaranteed under Article 11 of the Federal Constitution. In another case, Wan Jalil Bin Abdul Rahman& Anor v. Public Prosecutor,[56] the Supreme Court via Salleh Abbas LP rejected the argument by the defense that since the applicant is a Muslim, he is therefore subject to the Islamic Law of Hudud or Qisas, and as such the mandatory death sentence imposed on the applicant for drug and firearm offences is against the injunction of Islam and therefore void, as it is against Article 3 of the Federal Constitution.[57] As a result of the perceived intrusion of the court in the affairs and matters relating to the Islamic way of life and law, the Parliament via Constitutional Amendment Act 1988 inserted the new Article 121(1A), which overrides the jurisdiction of the Civil Court on matters which are within the jurisdiction of Syariah courts.[58] In Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam, a case concerning the
[2017] 1 LNS(A) lxxv Legal Network Series 30 validity of a renunciation made by the deceased applicant from the religion of Islam,[59] Wan Sulaiman SCJ held that “The amendment to art 121 of the Federal Constitution which came into effect on 10 June 1988 and the provision of the new art 121(A) has taken away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah courts and this is such a matter to which the Syariah court has jurisdiction”.
With these amendments, any matter which is considered within the ambit of Islamic legal principles therefore falls outside the jurisdiction of the civil courts and exclusively within the power of the respective States. This has resulted in an unfortunate situation in which Islamic law and practice comes into conflict with that of non-Muslims. The most common problem is when a spouse in a civil marriage embraces Islam but the other spouse remains a non-Muslim. Conflict arises as to whether the Syariah or civil courts would have jurisdiction to resolve this matter. Further, the issue becomes more complex when one of the spouses has not only converted to Islam but has also converted the child or children of the aforementioned civil marriage without the consent of the other spouse. This is illustrated in the case of Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors.[60] On the facts, the applicant (wife) entered into a civil marriage with the respondent in 1993. In 2009, the respondent embraced Islam and without her consent, converted their children, age 12 years, 11 years and 11 months to Islam. On discovering that the children had been converted without her consent and that the custody of the children had been granted to the respondent, the applicant initiated judicial review proceedings for a declaration that the children’s conversion was null and
[2017] 1 LNS(A) lxxv Legal Network Series 31 void and the custody of the children should be given to her. Lee Swee Seng JC held that the conversion of the children was null and void on the ground that they did not utter the Affirmation of Faith, as required by section 96 of the Administration of the Religion of Islam (Perak) Enactment 2004. One of the significant elements of the decision is the recognition given by the court to the Universal Declaration of Human Rights via the Human Right Commissions Act. His Lordship stated that “as a member of the international community, Malaysia cannot ignore our commitment to the various conventions that we have adopted and indeed we have amended our law to more clearly reflect our commitments. To begin with, the Universal Declaration of Human Rights is already part of the corpus of our law. The importance of the fundamental liberties provision of the Federal Constitution is underscored by the fact that s. 2 of the Human Rights Commission Act 1999 in defining human rights said it refers to the fundamental liberties as enshrined in Part 11 of the Federal Constitution. The word “enshrined” is a powerful word properly placed to protect that which is innate and inviolable, sacrosanct and sacred”. The court here attempted to give effect to the children’s right of religion to be determined by both parents under Article 12(4) and Article 8 of the Federal Constitution.
Unfortunately, the Court of Appeal, on a majority of two-to-one overturned the said decision. Balia J stated that the question on appeal was centred on the issue of the jurisdiction of the High Court in determining the matter of the validity of the conversion of the children by the Pendaftar Muallaf,
[2017] 1 LNS(A) lxxv Legal Network Series 32 which is a department under the Jabatan Agama Islam Negeri Perak. The court on majority view held that:
“Having heard the submission of all parties, and having considered the rich plethora of cases submitted before us, we are of the view that taking the “subject matter approach”, it is beyond the a shadow of doubt the issue of whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Shariah Court. The determination of the validity of the conversion of any person to the religion of Islam is strictly a religious issue and it falls within the exclusive jurisdiction of the Shariah Court”
The court also ruled that the plain reading of section 50(3)(b)(x)and (xi) of the Administration of the Religion of Islam (Perak) Enactment 2004 gives the Shariah High Court the power in a civil case to hear and determine a declaration that a person is no longer a Muslim and a declaration that a deceased person was a Muslim at the time of his death. The court then went on to say that the fact that the High Court had relied on an international document, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Right of the Child (CRC) to answer the question of whether the conversion of the children violated international norms and conventions was wrong, since it is trite law that international treaties do not form part of the country’s law unless those provisions have been incorporated into the national law. The court relied on the Federal Court decision of Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Anor Appeal[61] where it was decided as follows:-
[2017] 1 LNS(A) lxxv Legal Network Series 33
We should not use international norms as a guide to interpret our Federal Constitution. Regarding the issue of determining the constitutionality of a statute, Abdul Hamid Mohamad PCA (as he then was) in PP v. Kok Wah Kuan [2007] 6 CLJ 341 at p. 355 had this to say:
So, in determining the constitutionality or otherwise of a statute under our constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers. As Raja Azlan Shah FJ (as his Royal Highness then was) quoting Frankfurter J said in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 (FC) said: “The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”
The court further added that:
“We must add that while the Constitution is not to be construed in any narrow or pedantic sense, this does not mean that this court is at liberty to stretch or pervert the language of the Constitution in the interest of any legal or constitutional theory. Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us, the Federal Constitution is supreme and we are duty bound to give effect to its terms.”
What is regrettable is the fact that the court seemed reluctant to adopt a new way of looking at how the Constitution can be interpreted. The court
[2017] 1 LNS(A) lxxv Legal Network Series 34 must be willing to accept that legal and constitutional theories are ever- evolving and that as a “living document”, the Constitution must be able to adapt to the changing socio-legal conditions of society, and a regimental approach in the interpretation of such important legal documents may not be wise.
One of the hallmarks of the freedom of religion is the right not only to profess the religion but also the freedom to change one’s religion or belief, and Malaysia’s civil courts have been careful not to step into a domain that is exclusively held by the Syariah courts in cases which involve Muslims. The locus classicus on this point is the case of Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Yang Lain.[62] Here, the Federal Court decided unequivocally that in a case of apostasy, a Muslim must obtain the Shariah court’s certification to confirm his or her decision to change his or her religion and the attestation of the National Registration Department that such certification is not ultra vires.
While religion has been used to curtail the express freedom to choose one’s religion, the question is to what lengths the Judiciary intends to extend the supremacy of Islam as the religion of the Federation. In Wan Jalil Wan Bin Abdul Rahman[63] Salleh Abas Lord President stated as follows:
“The first point to consider here is the meaning which could be given to the expression “Islam” or “Islamic religion” in Article 3 of the Constitution. If the religion of Islam in the context means only such acts as relate to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself
[2017] 1 LNS(A) lxxv Legal Network Series 35
is an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every law has to be tested according to this yard-stick”. His Lordship continued that “The question here is this: What is the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century. Before the British came to Malaya, which was then known as Tanah Melayu, the sultans in each of their respective states were the heads not only of the religion of Islam but also as the political leaders in their states, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the states was Muslim law. Under such law, the sultan was regarded as God’s viceregent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, ie, Islamic law and to see that law was enforced. When the British came, however, through a series of treaties with the sultans beginning with the Treaty of Pangkor and through the so-called British advice, the religion of Islam became separated into two separate aspects, viz. the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty. The ruler ceased to be regarded as God’s vicegerent on earth but regarded as a sovereign within his territory.
[2017] 1 LNS(A) lxxv Legal Network Series 36
The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, ie, to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat. Although theoretically because the sovereignty of the ruler was absolute in the sense that he could do what he likes, and govern according to what he thought fit, the Anglo/Malay Treaties restricted this power. The effect of the restriction made it possible for the colonial regime under the guise of “advice” to rule the country as it saw fit and rendered the position of the ruler one of continuous process of diminution. For example, the establishment of the Federated Malay States in 1895, with the subsequent establishment of the Council of States and other constitutional developments, further resulted in the weakening of the ruler’s plenary power to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance
[2017] 1 LNS(A) lxxv Legal Network Series 37
only…In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void”.
Based on this, while it can be argued that this is the original intention of the framers of the Federal Constitution, it is nevertheless a fact that the current judicial approach to religious matters has had a very different result following constitutional amendments made on the power of the courts to decide on matters relating to Islamic principles and precepts. This is illustrated further in the case of ZI Publication Sdn Bhd & Anor v. Kerajaan Negeri Selangor & Anor.[64] On the facts of the case, the applicant was charged under section 16 of the Syariah Criminal Offence (Selangor) Enactment 1995 which makes it an offence for any person to print, publish, produce, record or disseminate in any manner, book or document or any other form of record, anything which is contrary to Islamic law or to be in possession of any such book, document or other form of record for sale or for the purpose of otherwise disseminating it. The petitioner argued that the Syariah enactment had encroached into the power of the Parliament and not the State Legislative Assembly to make law. This legislation, according to the Petitioner, had the effect of restricting the freedom of expression guaranteed in Article 10 of the Federal Constitution. The Federal Court via Raus Sharif JCA held that the state government has the power to make such law. According to his Lordship,
[2017] 1 LNS(A) lxxv Legal Network Series 38
“It is an established principle of constitutional construction that no one provision of the Constitution can be considered in isolation… Thus, Article 10 of the Constitution must be read in particular with Art 3(1) (which declares Islam as the religion of the Federation), Art 11 (which guarantees every person the right to profess and practice his religion and to propagate it), Art 74(2) (the power conferred on the Legislature of a State to make laws in respect of any matter enumerated in the State List, Ninth Schedule for the creation and punishment of offences by persons professing the religion of Islam for going against the precepts of that religion)…” and Art 121 (which provides that the High Courts which were established pursuant to Art 121(1) of the Constitution shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court). There was no doubt that what the Syariah Criminal Offence (Selangor) Enactment 1995 did in this case was within the framework of the Constitution”.
The Court further added that a Muslim in Malaysia is not only subject to the general law enacted by Parliament, but also to the state laws in relation to Islam enacted by the legislature of a state. This is because the Constitution allows the state to legislate and enact offences against the precepts of Islam, and taking the Constitution as a whole, it is clear that it is the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law. But the question is whether the Federal Constitution has deprived the civil court of its judicial functions in determination of the legality of such law. In Berjaya Books
[2017] 1 LNS(A) lxxv Legal Network Series 39
Sdn Bhd& Ors v. Jabatan Agama Islam Wilayah Persekutuan & Ors,[65] the Jabatan Agama Wilayah Persekutuan (JAWI) arrested the store manager of a book store on the allegation that the book store sold a banned book entitled “Allah, Liberty and Love”. On the question of jurisdiction of the civil court to hear this application, the High Court ruled that the civil court had jurisdiction to hear the application which involved the interpretation of law concerning fundamental liberties. Although the Syariah Criminal Offences (Federal Territories) Act 1997 under which the store manager was charged was a law for Muslims, that did not take away the High Court’s jurisdiction to interpret it since Item 4(k) of List 1 of the Ninth Schedule of the Federal Constitution provided that ascertainment of Islamic law and other personal laws for the purpose of federal law is a Federal matter.
What is of concern in relation to the application of religious laws is whether the end result of any decision would achieve justice. The Shariah Court’s decisions are solely based on Islamic law and jurisprudence. Thus, any idea of fairness or justice that is based on the civil law has no significant role to play in determining the outcome of any matter to which a dispute has been brought for adjudication before the Shariah Court. In the case of Balbir Abdullah v. Pendaftar Mualaf,[66] the plaintiff, a Muslim convert, had sought to renounce Islam. One of the issues that was raised was the issue of the jurisdiction of the Shariah Court to hear the application for his renunciation, since there is no specific provision in the Administration of Islamic Law (Federal Territories) Act 1993 to do so. On the facts, the court ruled that since there is a lacuna in the Act, then the court ought to use Hukum Syarak to decide the matter and based on the
[2017] 1 LNS(A) lxxv Legal Network Series 40 said Hukum Syarak, the appropriate punishment for apostasy is the death sentence. But the Shariah Court (Criminal Jurisdiction) Act 1965 provides that the Shariah Court is only empowered to mete out a punishment of imprisonment not exceeding 3 years, fine not exceeding RM 5,000 and caning not exceeding 6 lashes. As such, the death sentence could not be imposed. The court held that since the Shariah Court did not have the jurisdiction to execute the kind of sentence prescribed by Hukum Syarak and there existed no other rule or procedure allowing the applicant to renounce Islam, the plaintiff’s application therefore could not be entertained until such time as the necessary rules or procedures had been enacted by the authorities. Another interesting case is that of Dalam Perkara Ex P Muamad Ramzan Maniarason.[67] Here, the applicant made an application to renounce Islam 12 years after conversion to Islam. Here, the court held that although the Federal Constitution provides for the freedom of religion, it nevertheless is not the ticket for a person to change his religion as he likes and at his whim and fancy. The court further added that as the applicant had professed the Islamic faith and had lived as a Muslim for 12 years, it is not appropriate that the applicant now chose to renounce it or convert to another religion. The court even said that the grounds for wishing to renounce Islam provided by the applicant were not relevant, considering that he had already been a Muslim for 12 years, and added that his claim that he had not fully practiced Islam was not a ground for apostasy. In the case of Nyonya Binti Tahir, Ex P Majlis Agama Islam Negeri Sembilan & Yang Lain,[68] the applicant was a Malay Muslim who ceased practicing Islam from the day of her marriage to a Buddhist Chinese husband who did not convert to Islam when he married her. The court,
[2017] 1 LNS(A) lxxv Legal Network Series 41 based on the evidence adduced that the applicant did not practice Islam but instead practiced the religion of Buddhism until the time of her death, concluded that by this practice, she had committed apostasy and was therefore not Muslim. She was allowed to be buried according to the Buddhist religion and rites. Ashikin & Siti (2016) stated that only Negeri Sembilan, Melaka, Pahang, Perak, Kelantan, Terengganu and Sabah have the necessary law in relation to conversion out of Islam and suggested that a systematic judicial effort must be made in order to streamline the issue of conversion out of Islam among the State Shariah courts.[69]
Therefore, based on the current trend of decisions by the judiciary, the approach would appear to give more recognition to the role of Islam within Malaysian contemporary society, and when conflict occurs the interpretation of the court appears to lean in favour of an interpretation that favours Islam. Perhaps it is apt to reiterate what Justice Richard Malanjum said in his minority decision in the case of Lina Joy:
“it is therefore my view that when considering an issue of constitutional importance it is vital to bear in mind that all other interest and feeling, personal or otherwise, should give way and assume only a secondary role, if at all. The wise words of Salleh Abas LP in Che Omar Bin Che Soh v. PP 1988 2 MLJ 55 are thus worthy to recall when he said this at page 57: …we have to set aside our personal feelings because the law in this country is still what is today, secular law where morality not accepted by the law is not enjoying the status of law.”
[2017] 1 LNS(A) lxxv Legal Network Series 42
THE RIGHT OF POLITICAL DISSIDENTS AND ACTIVISTS TO FREEDOM OF EXPRESSION, ASSEMBLY AND ASSOCIATION
The 2008 election has changed the political landscape of our country. The opposition consisting of three major parties, that is, the Democratic Action Party (DAP), Party Keadilan Rakyat (PKR) and Pan-Malaysia Islamic Party (PAS) formed a strong partnership during this election which resulted in them winning 82 Parliamentary seats and controlling five states, whereas Barisan National (BN) managed to secure 140 parliamentary seats.[70] The BN’s hope to reinstate their dominance in the next general elections in 2013 resulted in the same disaster. This election saw one of the highest voter turnouts, namely 85% of the total registered voters in the country. BN only managed to retain 133 Parliamentary seats and the opposition coalition now renamed Pakatan Rakyat (PR) won 89 Parliamentary seats, denying the ruling coalition of BN the crucial two- thirds majority yet again.[71] The net result of these two elections is the higher representation of opposition politicians, which brought to light various issues highlighting the poor administration of the country under the BN rule. This political change gave rise to the creation of many new non-governmental organisations (NGOs) such as the Malaysian Muslim Solidarity (ISMA), Persatuan Pribumi Perkasa (Perkasa), The Coalition for Clean and Fair Elections (Bersih) and G25 Eminent Persons Group. These NGOs, among others, very often raised issues that are considered sensitive, such as the limit of religion, the rights of the Malay race and the sharing of the economic pie in the country. The freedom of speech enjoyed by them are unprecedented, with so many sections of society placing their
[2017] 1 LNS(A) lxxv Legal Network Series 43 own interests above the interests of the nation, which sometimes led to breaches of security and is detrimental to society at large.
The freedom of opinion and expression, the freedom of peaceful assembly and association, and the right to take part in the government are all guaranteed within the Universal Declaration of Human Rights.[72] Article 19 of the ICCPR provides that everyone is entitled to opinion and freedom of expression, Article 21 states that the right of peaceful assembly should be recognised and Article 22 states that everyone has the right to freedom of association. Ironically, both these international documents (ie, UDHR and ICCPR), like our Federal Constitution, do recognise certain forms of restrictions in the exercise these freedoms and rights. The ICCPR recognises that the exercise of these rights is nevertheless subject to restrictions that are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, and the protection of the rights and freedom of others. [73] Article 10 of the Federal Constitution recognises freedom of speech and expression and freedom of assembly and association, with certain limitations or restrictions which are deemed necessary in the interests of the security, public order or morality of the Federation or any part thereof.[74] Art 10(4) further allows the Federation to pass laws prohibiting the questioning of any matter, right, status, position, privileges, sovereignty or prerogative established or protected by Part III, namely, Art 152 (national language), Art 153 (reservation of quotas for Malays and natives of Sabah and Sarawak) and Art 181 (Rulers Sovereignty).
[2017] 1 LNS(A) lxxv Legal Network Series 44
If both international documents as well as the Federal Constitution recognise the limitation on these rights, how then may these rights be exercised by politicians and political or social activists? In Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor, [75] the issue in contention was the effectiveness of a state constitutional amendment which had the effect of prohibiting any member of a state legislative body from holding his post once he has resigned or is expelled from his political party or if he chooses to join any other political party. The applicant challenged this constitutional amendment as invalid, as it is in direct conflict with Article 10(1) (c) of the Federal Constitution, which allows freedom of association within the limits set in Article 10 (2)(c). The Supreme Court held that the test with regard to fundamental rights is whether it directly affects the fundamental rights, or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise “ineffective or illusory”. Since the direct and inevitable consequence of the proposed amendment of the state constitution imposes a restriction on the exercise by members of the Legislature of the right of association guaranteed by Article 10(1)(c) and since such restriction is not within Art 10 (2)(c) and does not fall within any of the grounds for disqualification specified under s. 6(1) of Part 1 to the Eight Schedule to the Federal Constitution, the proposed amendment was therefore invalid. What the court had done was to reinforce the importance of freedom of association that is fundamentally important to a civil society, and upheld that the deprivation of such right needs to be done within the context of limitations set by the Constitution.
[2017] 1 LNS(A) lxxv Legal Network Series 45
Nevertheless, in terms of the right to speech and assembly, the judiciary seems to take a rather cautionary approach. In the case of PP v. Azmi Sharom[76] the defendant, a university professor, was charged under the Sedition Act 1948 for certain statements he made in a local newspaper.[77] He then raised the constitutionality of the Sedition Act, arguing whether the Act contradicts the fundamental right of speech under Art 10(1)(a). Ariffin Zakaria CJ held that Article 10(1)(a) provides for freedom of speech, assembly and association. It is, however, commonly acknowledged that the rights conferred by the said article are not absolute, which is clear from Art 10(2), which states that the rights conferred by Articles 10(1)(a), (b) and (c) are subject to sections (2), (3) and (4). There are concerns about the kinds of restrictions which may be imposed under Art. 10(1)(a). His Lordship argued that via Article 10(2), Parliament is given the right to impose such restriction as it deems necessary or expedient in the interest of the security of the Federation, but such restriction cannot be imposed as they fancy; the restriction must, as decided in the case of PP v. Madhavan Nair,[78] fall within the parameters set out by section (2)(a) of Art 10.
Now in determining the ambit of this restriction, the court has embarked on a legal analysis of several cases. In PP v. Pung Chen Choon,[79] the then Supreme Court held that in deciding whether a particular piece of legislation falls within the ambit of permitted restriction, consideration must be given to the question of whether such law is directed at a class of acts too remote in the chain of relation to the subject enumerated under Article 10(2)(a). Here the connection must be real and proximate, not far- fetched or problematical. Another approach the court found is in the case
[2017] 1 LNS(A) lxxv Legal Network Series 46 of Dr. Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia[80] where the court imposed a further restriction on the law touching on the fundamental rights guaranteed by the Constitution by applying the reasonableness and proportionality test in determining whether the impugned law is consistent with the Constitution. Here, the court adopted the proportionality test and rejected the reasonable approach, as this approach would entitle the court to add words into the Constitution which were not there. The proportionality test requires the court to consider not only whether the legislative or executive response to a state of affairs to be objectively fair, it must also be proportionate to the object sought to be achieved. Here the court followed with approval the decision of the Federal Court in the case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor.[81] There, Gopal Sri Ram FCJ held that the proportionality test emanated from the equality clause in Art 8 of the Federal Constitution and stated that in determining whether a limitation set by the State is arbitrary or excessive, the court would ask itself whether the legislative objective is sufficiently important to justify limiting a fundamental right, whether the measure designed to meet the legislative objective are rationally connected to it and whether the means used to impair the right or freedom are no more than necessary to accomplish the objective. The court in Azmi Sharom decided that the Sedition Act is proportionate to the limit imposed within Art 10(2)(a) as it cannot be said that the restrictions imposed by the act are too remote or not sufficiently connected to the subject or object enumerated in Art 10(2)(a).
[2017] 1 LNS(A) lxxv Legal Network Series 47
In another decision on the question of the media’s right of speech and expression, the Court of Appeal in the case of Utusan Melayu (Malaysia) Bhd v. Dato’ Sri DiRaja Hj Adnan Hj Yaakob[82] illustrated a different attitude of the court. The respondent here was the Chief Minister of the State of Pahang and the appellant was the printer and publisher of a mainstream newspaper. Here the respondent, disgruntled by certain statements published by the appellant, brought an action against the appellant, claiming damages for libel. The respondent argued that the content of the publication meant that he, as the Chief Minister, had failed miserably in carrying out his official duties and continued to shirk his responsibilities to the people of Pahang, and this statement was made with malice and without an honest belief in the same, and therefore was libelous to him. The Court Of Appeal via Idrus Harus JCA held that by virtue of the fact that the respondent held a public office as a Chief Minister, and as an elected representative, the respondent should be open to public criticism and could never be defamed and this will preclude him from suing for defamation. The court further held that it is a fundamental principle that in the exercise of the right to freedom of speech and expression within the ambit of the Federal Constitution and other relevant laws, the public should have the right to discuss their government and public officials conducting the public affairs of the government without fear of being called to account for their expression of opinion. Nevertheless, the court added a word of caution:
“At this point it is necessary to interpose a note of caution, lest it be misunderstood, that with this decision, it does not necessarily mean
[2017] 1 LNS(A) lxxv Legal Network Series 48
that the reputation of the Government or public officials who are maligned by the press or any person for that matter, is without any adequate protection under the law. We wish to state very clearly and firmly that where the right of freedom of speech and expression is abused, the restriction on such freedom is contravened, or where any person by speech or writing seeks to calumniate any public authority or officials with malicious falsehood or false statements, and such abuse, violation or unlawful act constitutes an offence, the person can still be dealt with by criminal prosecutions under the relevant laws such as the Sedition Act 1948, the Penal Code, the Printing Presses And Publications Act 1984 (Act 301) and the Communications and Multimedia Act 1998 (Act 588).”
Thus, although the court appears to be granting the exercise of the right under Article 10(1)(a), nevertheless the court must ensure that the said right must be subject to the restrictions set by the law.
Prof Shad[83] stated that along with the right to free elections as provided in Article 119 and to form political parties and association, the freedom of assembly is an essential feature of a liberal democratic set up. The Peaceful Assembly Act 2012 now governs the right of assembly which requires conditions to be met before approval for an assembly is granted. The preamble of the Act states that it is an Act related to the right of peaceful assembly, and to set guidelines and restrictions deemed necessary in the interest of the security of the Federation and public order, including the rights of others. Under this Act, the right to organise an assembly or participate in one is not extended, among others, to non-citizens, to a street
[2017] 1 LNS(A) lxxv Legal Network Series 49 protest or to any assembly held at any prohibited place and within fifty meters from the limits of the prohibited place. In Dato’ Seri Anwar Ibrahim v. PP[84] the issue that was raised is that the restriction on street protests is against the fundamental right of assembly that is provided for in Article 10(1)(b), since street protests are a form of assembly and the Parliament, in banning street protests, has acted ultra vires the Federal Constitution. The High Court held that Art 10(1)(b) of the Federal Constitution confers rights of peaceful unarmed assembly subject to restrictions necessary or expedient in the interest of the security of the Federation or any part thereof or of public order. In other words, that freedom of assembly is not an absolute right and the Peaceful Assembly Act 2012 was enacted by Parliament by virtue of Article 10(2)(b) of the Federal Constitution in order to set certain limits necessary in the interest of national security and public order. The court added that banning street protests as one of the forms of peaceful unarmed assembly is necessary in a democratic society for the protection of morals and the rights and freedom of others and those rights cannot be absolute because they have to be balanced against one another. Another restriction that is imposed under this Act is the requirement of giving ten days’ notice before the date of assembly by the organiser to the police, as required under section 9(1) of the Act. While the Court of Appeal in Nik Nazmi Nik Ahmed v. PP[85] held such requirement is ultra vires the right of assembly under Article 10, the Court of Appeal ruled in the case of Yuneswaran Ramarajan v. PP[86] ruled that such requirement is not ultra vires the Federal Constitution, as it merely an administrative requirement.
[2017] 1 LNS(A) lxxv Legal Network Series 50
Observing the decision by the court on Article 10 of the Federal Constitution that protects the freedom of assembly and association as well as the freedom of speech and expression, the court in interpreting this right intended to take a rather restrictive interpretation and made the exercise of this right subject to concerns about national security and public order. Dr. Aziz Bari[87] opined that these rights that are enshrined in these articles are important articles in the democratic process and it is difficult to imagine how a democratic country can operate without these freedoms. It must be recognised that the freedom guaranteed under Article 10(1)(a) operated like the pendulum where its rights may be discovered as far as the pendulum swings and in the same breath it can be a wrecking ball that can be used nefariously to undermine our national security and peace. While speech and expression are important as they allow citizens to question the legitimacy of any act of the government, the fact that it can be done collectively in a group and in public at larger scale gives rise to a wide range of repercussions. Within this right and freedom, movement for injustice can be raised; opinions can be articulated for change and individuals in various capacities representing vulnerable groups such as women, children, the disabled and migrant workers could raise legitimate demands from those who govern us.
The collective force of these rights nevertheless can be equally transformed into mob rights that propagate hate speech and question certain fundamental values that become so integral in our society, such as affirmative action, racial and religious rights and distribution of wealth to society. History has proven the questioning of such fundamental values and
[2017] 1 LNS(A) lxxv Legal Network Series 51 rights to be disastrous. Nevertheless, legitimate inquiry on such issues must not be always seen in a negative perspective. Questioning the abuse of power, corruption and wastage of government resources nevertheless should always be encouraged, even though it may be linked with sensitive issues so as to avoid it being raised.
CONCLUSION
After the famous case of Kesavananda Bharati v. State of Kerala[88] was delivered, the government announced that it had decided to pass over three of the most senior judges for the office of Chief Justice of India, and appointed Justice AN Ray, a junior judge to that position. This decision was in clear contravention of a long standing and unbroken convention of the Indian judiciary that appointment to the chief justiceships would be strictly on the basis of seniority. Since all three of the judges who were superseded had been part of the majority who made the decision against the government and Justice Ray had supported the government, it was a clear case that the supersession was an act of punishment. [89] The 1988 judiciary crisis is still a dark chapter in our legal history which we are moving away from slowly.[90] The Chilean[91] and Argentina[92] judiciary experience during the time of oppressive and repressive government is another example how fragile the judiciary is if it fails to uphold the importance of the rule of law and justice as the first virtue of society.
Human rights is not a right that is absolute. This right can be deprived by Parliament if the realisation of such right is against moral or public order or in some cases, it is in the interest of national security that such right is
[2017] 1 LNS(A) lxxv Legal Network Series 52 restricted. The role of the judiciary as the guardian of fundamental rights cannot be over simplified. Judges who sit in the superior court are judges of impeachable character. They hold integrity and ethical conduct close to their hearts, ever vigilant against unnecessary intrusion to fundamental human rights by the executive or legislature. As long as judges remember the oath of their office, human rights in Malaysia will continue to be protected.
______
* LL.B (Wolver), CLP (Non Practice Advocate and Solicitor).While every care was made to ensure the accuracy of this article, any mistake and shortcoming remaining in the article is my own. The author can be contacted via email: [email protected]
Endnotes:
[1] Docker, John “The Origin of Violence-Religion, History and Violence”, 2008 Pluto Press.
[2] Shaw, Malcolm N, “International Law”, 5th Edition 2003, Cambridge University Press.
[3] Evans, Malcolm D “International Law”, 3th Edition 2010 Oxford University Press.
[4] Roth, Kenneth “Tyranny’s False Comfort - Why Rights Aren’t Wrong in Tough Times “Human Rights Watch World Report 2015, Publisher Human Rights Watch 2015.
[5] Sohn, Louis B “The New International Law: Protection of The Right Of Individuals Rather Than States”, The American University Law Review, Vol 32 1982 page 1.
[2017] 1 LNS(A) lxxv Legal Network Series 53
[6] Merrills, JG “International Disputes Settlement”, 4th edition Cambridge University Press 2005.
[7] Article 122B of the FC.
[8] See also the Judges’ Code of Ethics 2009.
[9] Richard Posner “How Judges Think” Harvard University Pres 2008.
[10] Rawl, John “Theory of Justice-Revised “The Belknap Press of Harvard University Press 1999.
[11] See the case of AXA General Insurance Ltd and Others v HM Advocate and Others 2012 1 AC 868 and the case of R (Jackson and Others) v. Attorney General 2006 1 AC 262.
[12] [1909] 8 CLR 330.
[13] See also the case of R v. Trade Practice Tribunal; Ex Parte Tasmanian Brewery Pyt Ltd 1970 123 CLR 361.
[14] [1976] All ER Vol 1 353.
[15] [2007] 6 CLJ 341.
[16] [2017] 5 CLJ 526.
[17] Article 121 of the Federal Constitution is amended via Amending Act A704 effective from 10.6.1988.
[18] Charles-Louis de Secondat Montesquieu, “L’Esprit des Lois” Whitefish: Kessinger Publishing 1748 in Scheini, Krunke & Aksenova “Judges as Guardian of Constitutionalism and Human Rights”, Edward Elgar Publishing 2016.
[19] See section 77 of the Penal Code.
[2017] 1 LNS(A) lxxv Legal Network Series 54
[20] See Article 124 of the Federal Constitution of the oath of office taken by judges before they take office.
[21] See also the Supreme Court of India decision in the case of Madras Bar Association v. Union of Indian 2014 INSC 717 (S5 September 2014).
[22] S.K. Foo, Richard “Malaysia-Death of Separate Constitutional Power”, Singapore Journal of Legal Studies 2010 pg 227-255.
[23] See JC Fong “Judicial Law Making: Can There Be Legislation By Case Law In Malaysia” 2012 2 MLJ lxxiii for further reading.
[24] [1981] 1 MLJ 29.
[25] See the case of Mat Shuhaimi Shafiei v. Kerajaan Malaysia 2017 1 CLJ 404.
[26] http://english.astroawani.com/malaysia-news/lahad-datu-invasion-painful- memory-2013-27579 accessed on 17.7.2016.
[27] http://www.thestar.com.my/news/nation/2016/07/04/movida-igp-confirm-is- attack/ access on 17.7.2016.
[28] See the case of Subramaniam v. Public Prosecutor [1956] 1 LNS 115 and 1957 1 LNS 11.
[29] See the case of Tan Hua Lam v. Public Prosecutor [1966] 1 MLJ 147 and Ooi Hee Koi v. Public Prosecutor [1966] 2 MLJ 183.
[30] Article 149 allows the Government to make laws which restrict the exercise of fundamental rights in cases where threats are made on the Federation which include causing the citizens to fear, causing disaffection against the Yang Di Pertuan Agong, doing certain acts to promote feelings of ill-will and hostility between various races which are likely to cause violence or any act which is prejudicial to the public order or the security of the Federation and under Article 150 the Yang Di Pertuan Agong is
[2017] 1 LNS(A) lxxv Legal Network Series 55 given the power to declare an emergency if His Majesty is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened.
[31] See Article 150(8) of the Federal Constitution.
[32] [1979] 1 MLJ 135.
[33] Both these issues will be discussed in a later part of this article.
[34] See the case of Noorfadilla bt Ahmad Saikin v. Chayed Bin Basirun & Ors [2012] 1 MLJ 832 and the case of AirAsia Sdn Bhd [2014] 5 MLJ 318.
[35] State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis& Ors [2015] 8 CLJ 975.
[36] Jamaluddin Mohd Radzi & Ors v. Sivakumar Varatharaju Naidu; Suruhanjaya Pilihan Raya (Intervener) 2009 4 CLJ 347.
[37] Dr. Michael Jeyakumar Devaraj v. Peguam Negara Malaysia [2013] 2 MLJ 321.
[38] Tan Pooi Yee v. Ketua Pengarah Jabatan Pendaftaran Negara and also the case of YB Teresa Kok Suh Sim v. Menteri Dalam Negeri, Malaysia, YB Dato Seri Syed Hamid Bin Syed Jaafar Albar & Ors [2016] 6 MLJ 352.
[39] Section 4 and 5 of the Human Rights Commission of Malaysia Act 1999.
[40] http://www.suhakam.org.my/pusat-media/sumber/laporan-siasatan-awam/ accessed on 16/11/2015.
[41] B Lobo “Does The Law of Human Rights Pervade All Malaysian Law in View of Part II Of The Federal Constitution?” [2007] 6 CLJ i.
[42] Article 9(2) of the Federal Constitution.
[2017] 1 LNS(A) lxxv Legal Network Series 56
[43] http://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2015/ 06/29/upholding-the-role-of-the-judiciary/ accessed on 10.2.2016,
[44] Article 73 of the Federal Constitution.
[45] Article 74 of the Federal Constitution.
[46] Except where it involved the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
[47] http://www.agc.gov.my/index.php?option=com_content&view=article&id=408& Itemid=334&lang=en accessed on 28 November 2015. Article 76 allows Parliament to extend this international legal document to the States subject to Article 76(2).
[48] Articles that are reserved are 9(2), 16(1)(a), 16(1)(c), 16(1)(f) and 16 (1)(g).
[49] Hathaway, James C “The Right of Refugees Under International Law”, Cambridge University Press 2005.
[50] Donnelly, Jack “The Relative Universality of Human Rights”, Human Rights Quarterly, Volume 29 May 2007 p281-306.
[51] Supra 25 at page 282-283.
[52] Good, Colleen “Human Rights and Relativism” Macalester Journal Of Philosophy, Vol 19 Issue 1 2010 page 27-52.
[53] Gerard, Clarke “The Evolving ASEAN Human Rights Systems: The ASEAN Human Rights Declaration of 2012”, Northwestern Journal of International Human Rights, Vol 11 Issue 1 page 1-27.
[54] Similar provision is found in Article 18 of the International Covenant on Civil and Political Right. Art 18(3) imposed restrictions as is necessary for the purpose to protect public safety, order, health or morals or the fundamental rights and freedom
[2017] 1 LNS(A) lxxv Legal Network Series 57 of others. See also the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
[55] [1989] 1 CLJ Rep 626; [1989] 1 CLJ 448.
[56] [1988] 1 LNS 150.
[57] See Zakaria, Zainur “Article 121(1A)”, 2007 XXXVI No 1 page 29-54.
[58] Amendment came into effect on 10.6.1988.
[59] [1992] 1 MLJ 1.
[60] [2013] 5 MLJ 552.
[61] [2011] 8 CLJ 766.
[62] See no 12.
[63] Supra no 26.
[64] 2015 8 CLJ 621.
[65] [2014] 1 MLJ 138 (HC).
[66] [2009] 1 CLJ (Sya) 365.
[67] [2007] 1 CLJ (Sya) 352.
[68] [2006] 1 CLJ (Sya) 335.
[69] Ashikin & Siti “Conversion Out of Islam In Malaysia: Problem From the Legal Perspective”, Journal of Shariah Law Research (2016), Vol 1(1) 141-154.
[70] Tunku Mohar Mokhtar, “The Twelfth General Election In Malaysia”, Intellectual Discourse 2008 Vol 16 No 1 Page 89-100.
[2017] 1 LNS(A) lxxv Legal Network Series 58
[71] Lee Kam Hing and Thock Ker Pong “Thirteenth General Election: Chinese Votes and Implication on Malaysian Politics”, Kajian Malaysia Vol 32 Supp 2 2014 page 25-53.
[72] Art 19, 20 and 21.
[73] Art 29(2) of the UDHR used almost similar language to emphasise the limit to the right within the Declaration.
[74] Art 10(2) (a), (b) and (c) of the Federal Constitution.
[75] 1992 1 CLJ (rep) 72.
[76] 2014 8 CLJ 921.
[77] The statement read “You don’t want a repeat of that, where a secret meeting took place,…. I think what happened in Perak was legally wrong. The best thing to do is do it as legally and transparently as possible”. It was made on 14 August 2014.
[78] Madhavan Nair & Anor v. PP [1975] 1 LNS 94.
[79] [1994] 1 LNS 208.
[80] [2007] 1 CLJ 19.
[81] [2010] 3 CLJ 507.
[82] [2016] 5 CLJ 857.
[83] Shad Salem Faruqi “Document of Destiny - The Constitution of the Federation of Malaysia” Star Publication 2008.
[84] [2013] 3 CLJ 1043.
[85] [2014] 4 CLJ 944.
[2017] 1 LNS(A) lxxv Legal Network Series 59
[86] [2015] 9 CLJ 873.
[87] Dr. Abdul Aziz Bari “Kebebasan Dan Hak-Hak Asasi di Bawah Perlembagaan Persekutuan-Satu Analisis Umum”, Malaysian Journal of Law and Society 4 (2000) page 87-108.
[88] AIR 1973 SC 1461.
[89] Dickson, Brice “Judicial Activism In Common Law Supreme Courts”, Oxford University Press 2007.
[90] http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciary-never- fully-recovered-from-1988-crisis Accessed on 13.7.2017.
[91] Hilbink, Liza “Judges Beyond Politics In Democracy And Dictatorship”, 2007 Cambridge University Press.
[92] Helmke, Gretchen “Courts under Constraints: Judges, Generals and Presidents in Argentina”, 2005 Cambridge University Press.
View publication stats