CONSTITUTIONAL LAW IIDR IBRAHIM’S CLASS + Notes from other class *SUBJECT TO CHANGE* EDITED BY: SENIOR [CREDIT TO MYLIG] SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 FEDERALISM Latin word: Foedus, means agreement or treaty or association or other name : Federe Literally : Treaty / agreement/ contract Technical meaning : 1) It is a political theory of governmental system in two or more state agreed to make an agreement to form a single country & to create two levels of government which are known as federal government and state government. 2) Agreement between 2 or more states to form a single country without abonding status of states member Each level of government enjoys certain degree of powers in jurisdiction DJ Elazar Federalism is the mode of political organization that unites separate politics within an overarching political system so as to allow each to maintain its fundamental political integrity Federal systems allow this by distributing powers between & the central & constituent authorities in a way that preserves their existence & authority William H. Riker The concept of federalism by giving its main characteristics :- 1. 2 levels of government that rule the same land & same ppl. 2. The existence of at least one area of action in which the gov. is autonomous which means division of powers. 3. The existence of guarantess of autonomy for each gov. is within their own speheres. K.C. Wheare The criteria for a federal state : 1. Coordinate independent gov. at federal and state levels 2. The method of dividing powers between them so that they would operate in an independent & coordinate manner. SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 FEATURES/ ELEMENT OF FEDERAL SYSTEM Pre- requisite element – without one of this, no federalism working & practical features – not necessarily exist, depends on country. 1. Pre-requisite element a) Association of two or more states to form a single country recognized by the United Nation (UN), it’s a sovereign country. Eg: Art 1(1) and (2) of FC. b) Duality of government: - Federal/ national government (Part IV of FC) eg: Art 32 (YDPA), Art 38(conference of ruler), Art 43(Cabinet-PM and Minister), Art 44(Parliament) , Art 121(Judiciary). - State gov. (Part V of FC) eg: Art 70( civil court cannot interfere with succession), Art 71(deal with 8th Schedule, known as State Executive Council). c) Distribution of powers : Check + balance Agree to make constitution Eg :Judiciary power(Art 121(1A), Executive power (Art 80 + 10th Schedule), Legislative Power (Art 73) – safe rule : Fed gov has power to make tax, State gov on Islamic matter // shared rule : concurrent list 2. Working & practical features a) Written constitution – to have a good working federalism gov, need to be written. Eg : federal consti :- - coded in writing - it is a political agreement b) Highest level court of law to settle disputes between federal & states- given to Federal court (Art 128 + Art 74) Case: Gov. of state of Kelantan v Gov. of federation of Malaya & Tunku Abdul Rahman [1963] 1 MLJ 355 Case: Mamat bin Daud & ors v Gov. of Malaysia [1988] 1 MLJ 119 c) Bicameral legislature- have 2 houses House of Senate & House of Representative d) Superiority of federal law (Art 75, 77) Sch 9 : list i, ii, iii Reserved matter SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 Geographical factor . Division of power between national and 3. May be independent/ not 7. Rigid constitution 5. No division power regional 4. Bicameral Legislature requirement SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . Derives all powers from states Reasons of Federal system of gov: .Historical background .sultan’s power . Independent judiciary 6. May be written ( France) @ unwritten 2. eg: India Malaysia 2. no state election. Central gov. Confederal . then follow it to know what is the system applied. Supremacy of constitution (Britain) 5. local bodies. Weak central authority .Roles played by colonial . relies on federating unit .UNITARY SYSTEM vs CONFEDERAL SYSTEM Almost all ingredients of federalism exist in both of them In order to differentiate between unitary / confederal. just local gov. election . look at the provisions in the constitution If the country has constitution. May be supreme ( Japan) @ not supreme 4. May be rigid @ Flexible 6. Bicameral/ Unicameral – senate is not a 7. Dual Gov – national and regional eg: 1. sovereignty of parliament . 1.Economic reasons – gold. gospel. Unitary .Leadership & ideology . Written Consti (Britain) 3. gov. Single Gov. is centralized (the centre is very powerful) . never act independently 2. glory CONFEDERAL FEDERAL UNITARY FEDERAL GOV UNITARY GOV 1. power to execute the law is also under federal power.immigration Act .HISTORY OF MALAYSIA a) 1948-1957 Development of Tanah Melayu by British b) 1955 Election Preserved British system into constitution c) Federation of Malaya Act British introduce lots of British administrative system . of Kelantan.court .parliament . nothing to do with state g) Art 9 . Sarawak & Singapore joined o Becomes Malaysian act 1963 20 points sabah 18 points Sarawak some points for Singapore After Singapore exit on 1963.etc o Our federal constitution now :- Supreme law Written law d) Major amendments in 1963 of FC bcoz of Sabah.read together to Art 161 A (meaning of native) Art 161 A – 161 E SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 . that formation of Malaysia is not valid – the power to admit new states is within federal parliament Case: The Gov of Kelantan 1963 1 MLJ 355 f) Law making power is under the federal gov.movement of ppl into Sabah & Sarawk is controlled by their respective gov. h) Art 74 : must be read subject to sch 9 i) Art 95 j) Art 109 : must be read subject to sch 10 1-3 (Peninsula) 4&5 (additional lists for Sabah & Sarawak) Art 111 : 2 high courts Malaya Borneo Art 153 : native . so. So. some provisions were amended again FEDERAL CONSTITUTION ON 1965 e) Art 1 once has been challenged by gov. of Malaysia . based on 3 pattern lists :- o 1 Federal o 2 & 2A (Sabah/Sarawak) state o 3 & 3A concurrent Case: Gov. so what law should be applied? . of Kelantan v Gov. Parliament has power to admit new states (Malaysian Act) Case: Abdul Karim v Legislative Assembly of Sabah . b) Residual of subject matter [Art 77] – exclusively GIVE power to state on a matter if not being mentioned any of the list in 9th schedule. Held: the Bakun Dam project fell under State legislation and the Environmental Quality Act (EQA) had no application even it is a valid law. But. . Gov. should conduct a survey. and Singapore into the Federation. List II.DISTRIBUTION OF POWERS UNDER FC 1. A Kelantan state law against defections was declared to violate Art 10(2)(c) of the FC which permits Parliament (and not State legislative) to regulate freedom of association. Case: Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek . Legislative Power. SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 . appealed saying that state law has no provision about consultation . Kelantan argued that the proposed constitutional changes needed the consent of all constituent states and that this had not being obtained. There is provision in environmental law that gov. List III) Art 77 – not in written form (residual matter) – exclusive for state Art 73 : territorial jurisdiction Art 76 : deviation from federal system of government – when federal power to make law on state matters ? Art 76A : situation where state has power to make law of federal matters Art 75 : inconsistency of federal list & state list Art 150 : emergency power Art 71 : essential provisions Art 2 : new territory a) Distribution of subject matters [Art 74 Sch 9] In Sch 9. A Sabah law against party hoping was held to be intra vires the powers of State Assembly Case: DUN Kelantan v Nordin Salleh .power to make law Art 74 + sch 9 (List I. Held. Sarawak. . Gov. consulting the natives to find out more before approving a big project. the native got no consultation about the project – claimed the project is invalid . Kelantan objected to the admission of Sabah. decided to approve the project. gov.Native law If rejected.Detention without trial . d) Exception: Parliament has power to make law on state matters. Art 76 empower Parliament on State matter. but the law is from Sarawak . international commitment or convention (Art 76(1)(a)) Parliament has power to implement decision made by United Nation to be applied on state Consultation with state is not necessary to be done by P except :- . Held: Art 11(4) empower states to have the power as the court extend the word ‘precept’ of religion to aqidah. . but state law can be challenged its validity Federal law usually applicable to Peninsula Malaysia only :- Penal code Legal profession act Etc State law Re James Wong Ming . has power to do so . syariah and akhlak. 1.preventive detention . ZI Publication v Gov of Selangor .malay custom . . Love & Liberties’ into Malay language ‘ Allah. This cases was referred to Sulaiman Takrib pertaining to precept of Islam. He being challenged by Criminal Syariah of Selangor that the religious publication was contrary to Islamic Law.Detention was made in Perak. Cinta dan Kebebasan’ . The duty to consult does not impose the duty to obey (Art 76(2) Art 76 (1)(a) Art 76 (1)(b) Art 76 (1)(c) procedural law only Art 76 (4) SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 .native custom .Islamic law . still can proceed as it is only a procedural matter. . Plaintiff was a Publisher who published a book written by Canadian author entitle: ‘Allah.Ct.Law in Sarawak cannot be applied to other states . religious. applied habeas corpus Case. Implementing any treaty. and Fathul Bari’s case on his challenged the validity of teaching without tauliah. He stated that it was contrary to Art 10 stated that State have no power to restrict fundamental matter.Security law (federal power) subsidiary legislation . agreement. c) Territorial jurisdiction [Art 73] Federal law can be applied throughout federal. Section 10 & 15 of LGA stated that there should not be an election.But have subject to procedural restriction – adoption is necessary.Substantive restrictions ONLY. . Case: Lim Chee Cheng v Pentadbir Tanah Seberang Perai . no procedural restriction in passing the law. of Pulau Pinang v Gov. matters under List II Schedule 9 .Held: the land tenure should also include the collection of land revenue II. . just appointment .can be given to Federal to draft suitable law for them. and later will become state law and not Federal law. Bhd. Case: Gov. Local Government matter (Local Government Act) – power of National Council under Article 95A to formulate national policy for local government.This case is followed by East Union. no collection of land revenue. (Art 76(1)(b) -To have uniformity in Islamic Law eg: Administration Islam Act.NLC: Section 100 empowers state gov. .Adoption before NLC not necessary Case: East Union Mas Sdn. gives broad meaning of “local government” also includes matters pertaining to election .Under Art 76(4). 4. 3. SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 . Request from state to make law on its own.This provision is subject to some exceptions. . Ensuring Uniformity of Law & Policies (Art 76 (4)) . a) such a law does not operate in any State unless it had been adopted by the legislature of that State (Art 76(3) b) this power is not applicable to Sabah and Sarawak (Art 95D) c) the requirement of adoption by West M states is waived in the matter of Land and local government.O.No substantive restriction as long as under the ground of promoting uniformity. then proceed to parliamentary stage (Art 76(1)(c)) -State has power to make request to Fed Gov eg: Islamic offences . . 2.B. I.land tenure federal gov.P: on Federal Government – involve question of Fact.Plaintiff argued for having election of counsellors according to LGE. to impose collection of land revenue .no substantive restriction but still have procedural restriction – need adoption Art 76(3) . v Johor gov. Land matter which govern by National Land Code.Confined to 2 subject matters only –land matters & local gov. . .Whether state gov has power to impose collection of land revenue? . Parliament made law for states for the purpose of promoting unity/ uniformity. of Malaysia . which is the power and duty of National Land Council under Article 91. but have land tenure only .Held: federal ct. of Malaysia . Vote no confident . Inconsistencies between Federal Law & State Law? [ART 75] : Federal law prevail. Art 92 – National Dev Plan. parliament has power. of Penang v Gov. 21 sign out of 42 . Emergency Power (Art 150) – once ongoing proclaim the emergency. not appointment . Case: Stephen Kalong Ningkan . fed gov can make law on state.Sultan act on advice etc. .Part 1 of 8TH schedule: .list 2 + list 2A Sabah & list 3 Sarawak Art 76 list 3 + list 3A Art 74 Art 77 : residual matters Art 94 Some other provisions -------- SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . But for Sabah Sarawak. consent of state (YDPN) must be obtained. Admission of New Territories (Art 2) Conclusion: Parliament’s power State Legislature’s power Art 74 Sch 9 list 1 Sch 9 . 2. Local election through election. .Art 76A: State power can go against Federal matter where Islamic Law can be passed through State Assembly (Islamic Jenayah Act). Essential matter (Art 71) . After that no confident if without voting first. The enactment is declared null & void inconsistency with federal law Both Sabah & Sarawak enjoys more power than state in peninsula Malaysia List 3A : concurrent list Art 95 D :Art 76(4) not applicable to them. (Art 95E(3)) Other situation where Parliament can make law: 1. Case: Gov.State has to follow . Superiority over state law.Parliament can compel 4. Constitutional Amendment (Art 159) Case: Kelantan v Gov of Malaya – inclined toward Fed Gov 3. Held: during emergency. 94.the power to execute belong to State. Kelantan Civil Service ii. v. Over the State Executive Jurisdiction List II. Eg: the power to arrest 2. Legislative power is inside both parliaments Executive authority belongs to state. Law made by parliament under Art 76 (4) to ensure confirmity :- Law made by parliament for the purpose of uniformity etc Subject to ‘resolution’ made by state assembly to confer power to federal authority 4.to execute the law.Even though law made by state on state matter. Law passed under Art 77 (Non-enumerated matters) iii. in new district level. Local Government Act. State Religious Officers. belong to Federal Gov – restricted to one situation only – can execute the law under Parliament (List 1) Eg : Police Act : Implemented by policeman. State matters (List II) If implemented by state officers. iv. state has power to execute it. 2. police officers. but parliament has executive power if he law expressly confer the executive power to gov. need new District office. Federal:. Law made under Art 76A Is quite equivalent to concurrent list laws This act conferred the legislative power to State to make law. has to follow any advice & inspection from federal gov 5.Some states get more executive power than federal regarding:- i. Establishment of Department (Art 112) .state gov. Concurrent matters :- State has power to confer executive power to Federal gov. or federal authority State: .95 – professionalism . EXECUTIVE POWER UNDER FC (Art 80) General rule: Federal and State Executive power follows legislative power. Some situation under EXCEPTION. (FEDERAL OVER STATE) 1. 3. Concurrent matters 9 (List III) Both parliaments and legislative have power to make laws. then automatic it belong to states. then there is an express conferment to Federal authority to execute the law If no express conferred. Art 93. Law made by Parliament under Art 76(4) for the purposes of uniformity Eg: National Land Code. then Federal authority can execute the law Similarly when law made by parliament.New department & officers subject to the Federal Government officers . Land office. 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . then it is called as state authority Law made by State Assembly eg.Pertaining to Tecnicality & advice belong to Federal Matter eg: FRIM .Eg. even the law is made by parliament. If law made by State. Then. thus. . it is named as KEJORA Act. there must be a law.Eg : Immigration Act . . USNO lost . He is from N9 but teach in Sabah. KETENGAH. He managed to prove that he is Sabahan. . If state wants even one office/department to administer state matters. Syed Kechik actually was not Sabahan. Berjaya succeeded to control Sabah. In order to govern this project. Eg : KEJORA. Case: Sugumar Balakrishnan .If parliament confers power to state to make law on federal matters. . so he cannot be expelled by state gov. Case: Dato’ Syed Kechik .Immigration is a part of Federal list. Deportation order is valid 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 . then state can do so. National Council for local government (Art 95A) EXCEPTION: STATE OVER FEDERAL Whether they have power over federal matters? Art 80 (4) .Part 7 (Amendment) Only Sabah & Sarawak has absolute power. but his application has been granted by Ct. State authority wants to expel him from Sabah . . KESEDAR . National Land Council (Art 91) . Top leadership wants to have a new political party Parti Berjaya . KETENGAH Act . but Immigration Act confers power to state executive authority . they have to make proposal to federal gov. If Parliament passed the law. income limited. land. hs power to confer to Fed Gov. Fed gave money to State gov in the matter of State. belong to Federal Gov. Sources of Income Generally: The system of our money financial belongs to federal gov.forest. subject to agreement between state & federal gov. Federal must paid! c) State road grant Art 109(1)(b) + Sch 10 (part 2) 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . b) Capitation grant Art 109(1)(a) + Sch 10 (part 1) . Non-Muslim cannot claim why the money went to religious school. but salary paid by Gov. Federal started to take the religious school and turn tu SMKA. Certain situation. need to bear the cost in term of salaries.Need licences. If mentioned state. Eg: religious teacher. so need to follow Gov syllabus (known as SBK).belong to State. then will go to federal gov. facilities. . then state has power Items of section 7 in Sch 9 finance belongs to federal gov. logging. (fiscal gov. Eg: Policeman. No income tax) .GST .Must be paid by Federal to State gov – annually (twice a year) . Sources of income fed state 3.excess/custom duties Income for the State gov: a) State SM (state revenue): Art 110+Sch 10 (part 3)Peninsular/Sabah & Sarawak (part 4 & part 5) . if not need to pay denda. State has not enough money.protected by Constitution 2.) Constitutional expression of managing revenue of states If the matter is not under state. mines.income tax (if pay Zakat. bauxite. Financial burden [Art 82] Federal should bear all the costs in the operations machines of Gov. timer construction. However. religious school (Art 12).FINANCIAL DISTRIBUTION 1. Both has financially liability according to SM and the lists in Schedule 9 Concurrent subject matters the power is on execution. Eg : . sand from rivers.Depending number of population. Management of moneys 1. Financial burden 2. Build a bridge to crossing Kelantan river . Money must be centralized.For the purpose of state development eg: PPRT – RMK prepared RM 60B e) Contigencies fund [Art 103 + Art 109 (5)] . Executive perspective: Art 112 – most of the TOP post is Federal. Based on cooperative federalism.It is owned by federal gov. The report is discussed by PAC (Public Account Committee) Art 108 – National Finance Council – Federal & state can discuss. Cannot add without Federal’s permission.found not within state area. g) Borrowing [Art 111]. of Malaysia v gov.Flood.Thus.should pay directly to state but Federal pay indirectly . Eg: RMK Art 105-107 appointment of auditor general. outside that. they delayed but still pay in the same year d) State reserved fund [Art 109 (6)] .5km. held that the contract is not considered as state borrowing from federal . . . must be separated eg: religious income Art 99 annual budget : income & expenditure must be authorized.A company agreed with state to give pre-payment .Is it considered as borrowing? . Incomes derived cannot be consolidated fund. of Kelantan [1968] 1 MLJ 129 .state has right within 5.Mining land. GST Art 97 +98 All of the revenue must be paid. Extra legal (non-legal) resources: Politic – state admin need bless him 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . timber mine . Fiscal Federation: Is Fed Biased? 1.Urgency/emergency fund f) Specific purposes fund (Art 109 (3)) special occasion eg : Majlis2 Besar at state level.For the purpose of state development . Money bill must be made by HOR eg. 3. amendment to Art 111 is made h) petroleum Art 97(2) .Ct. has discreation to give money. tsunami. disaster. Compulsory grant – if state controlled by OPPOSITION.State has power to borrow money from federal Case: Gov. belong to Federal 3. 2. etc – discretionary fund . State only support. SUKMA. Management of moneys Art 96+ 112(d) federal not impose financial obligation to state without any prescribing by law. Legislative persective : List 1 – most of it belong to Federal and limited to State Matter. Giving special power to State gov – asymmetric federalism. How to solve it? 1. Economic – state admin depend on Fed Admin – Fed conquer top post. Eg : Conference of Ruler 2. Creating a number of Constitution – known as Cooperative Federation. All state should be equal 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . forfeited documents. etc iii.Ct. inseparable. fundamental rights which are essential for life as human being 2 types :- i. people dissatisfied with the power owned by the King 1799 – special Ct.Def is the gov. right to movement. Second generation rights right to marriage. Positive rights Need to have legislation to have that rights Lower rights :- i.Arrested by gov. for culture 1979 – convention of elimination of any discrimination against United Nation 1994 – convention against torture. cruel & degrading punishments 1999 – convention for children rights 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 .inalienable. all matters will go to civil Ct. was established in France. wanting to arrest a person . settling dispute between gov. right to get information. etc ii. may not do something unless authorised by law United Nation 1948 – declaration of Human Rights by United Nation . etc HISTORY Before 13th century. officer . Authority of gov.Def went to Pf’s housewithout permission. rights & obligations as citizens. officer. & citizens Unlike in England. Third generation rights position in the country. God-given rights No need to have legislation to have that rights ii.declaration of international gov. officer . Europe is in ‘dark age’ John Locke advocated the principle of separation of powers 1789 – revolution in France.declaration of international gov. HUMAN RIGHTS IN FEDERAL CONSTITUTION [ART 5-13] UK – Human Rights Act India – Fundamental Rights Malaysia – Fundamental Liberties Definition . right to education. held : there must be a warrant for gov. People prefer to let having one special jurisdiction about that (administrative law principle) Principles of ‘Rule of Law’ by AV Dicey :- He said that separating the courts will cause discrimination unlike England He derived the principle from the case : Antick v Carington [1765] . First generation rights right to life. for ---- . punishments DEGREES OF RIGHTS ON PROVISION o Certain rights which is given to certain group of people only o Some are fundamental. Judicial interpretation Transgender is not allowed because contradicted to Islam ENFORCEMENT RIGHTS Enforcing bodies – police officers. families to God (qu Anfusakum waahlikum naara) o Art 5 & 6 (Hadis prohibits slavery) give salary to those sweat o Movement (fantasyiru fil ardh) o Art 11 (lakum dinukum waliya din) 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 .RIGHTS IN FEDERAL CONSTITUTION Sources of Human Rights in Malaysia : i. some are less fundamental o Hadis take care of bodies. Constitutional restriction Refer to Federal consti Restricted by law itself Eg : rights of Malays etc are restricted by law If law does not protect. Act 2001 o Employment Act – EPF. damages. Federal Constitution o Part II [Art 5-13] o Art 119 – election o Art 135 – rights to hear for civil servant o Other provisions ----- ii. KWSP. through law – procedures. etc Ct. Statute Eg : Sedition Act 3. Statutes o right to fair trial – evidence act o criminal trial – CPC o civil trial – Rule of Court o Child Ct. Executive restriction Commands by superior Has power to impose some restrictions 4. etc o Right to marriage. etc – IFLA o Customary rights RESTRICTION OF RIGHTS 1. divorce. he is not entitled to law 2. taken away according to law d) Art 5 must be read together with other statutes .Laws made by special powers Art 149 Art 150 Art 5(1).Death penalty under section 57 of 1SA.There must be substantive law to govern imposing death penalty. there must be made within law (concept of natural justice) 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . CPC life is protected .To determine the offences.Right to legal representation (lawyer) .Right to production before magistrate within 24 hours . being alive. but also procedural law.Right of person been deprived unlawfully.life can be taken away through death o life also includes something essential for human being :- right to food.Thus. ART 5(1) 1. ART 5: RIGHTS OF LIFE & PERSONAL LIBERTIES a) There are 2 major right – life & Personal liberties b) There are several rights protected under this article :- . then it is not considered as constitutional . Art 5(3) (4). Art 5(2) – Remedy (habeus corpus) for those who is unlawfully detained. possession of weapon in security area (Malaysia) . will be sentenced to death .Right to know ground of arrest .imprisonment for natural life) . interpreted the word by themselves o restrictive meaning : opposite to life is death o broad meaning: being existed. medication. but if the accused commits murder.Eg : penal code. mandatory death sentence is constitutional. no separation of body & soul o it is sanctioned by our legal system Lau Kee Hoo v PP [1984] 1 MLJ (restrictive meaning) .can be deprived. the power given to AG – has discretion to choose suitable law (Firearm Act 1960. If not.Right to habeus corpus (to release someone from unlawful detention) c) rights subject to restriction :- .The accused challenged its validity of the punishment as its contrary to Art 5 .everyone has right to life and personal liberties but its right is not absolute. employment right to good environment – free pollution o not only substantive law. but Ct. Life – o no definition in FC. o if authorities want to deprive one’s life. Tan Teck Seng .Def challenged the validity of dismissal.Gov.Not registered as owner of the land . is in accordance with law Nor Anak Nyawai .It also voided defendants' title to the area and ordered the defendants' title to be rectified to exclude the disputed area. wants to acquire the land . the authorities not following the law to do so. however. Bintulu.They claimed that the def’s timber company had trespassed and damaged their ancestral land. Kerajaan Negeri Selangor v Sagong Tasi .But. . 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 .The pfs however.On the matter of dam as well – occupied by orang asli but taken by government Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan .State gov.The land occupied by many people . Sarawak.Section 294’ . the Ct. as land is a part of livelihood . . did not hold documentary title to the land.Despite the Ct's silence. decided that entry permit given by immigration does not give the right of life .Construction of dam in Sarawak . as it was the most lenient punishment as stated .There should be strict compliance of law . cannot deprive “permit” from the matters of life for the purpose of immigration Law Phang Ching .Section 173 of CPC binding over . The title to the disputed land was held by the def’s company which had hired contractors to clear the land for commercial timber development.Dismissal was changed to reduction of rank Kajing Tubek’s case .The Ct. . .Pfs were residents of two longhouses located in Sekabai. .The Court.Pasar malam’s place is given to local gov.Acquisition of gov. .The Pfs’ claim to have acquired native customary rights to the property under Iban custom.They are dismissed. . simply left this issue unresolved and did not elaborate further upon the nature and extent of the rights encompassed by native customary rights.Power to execute the law is within state .Ct. decided to be giving compensation to them. then declared that the pfs had the right "to exercise native customary rights in the disputed area" and then controlled the defendants from entering the disputed area.No consultation made with the natives Kerajaan Negeri Johor v Adung bin Kuwau . it did recognise the pfs' control over their communal land in fashioning its remedy. . intervention Refer to other provisions as well Art 5(3) & (4) Art 9 PP v Tengku Mahmud Iskandar Loh Wai Kong v Gov. The accused challenged on validity of deprivation of life not accordance with law . Case: Altantuya – no authority so court convict. As its life (income) was affected. . 2. Constitution has proved prima facie. has no choice but to convict him. Not guilty the Ct. Malaysian students studied in Australia. Pasar malam matter is not deprivation of life Lee Kuan Woh v PP 2010 . If positive. . Personal liberty Physical body of human being/person – free from unlawful infringement Not subject to any discrimination.Magistrate gives order of drug addicts to be placed at Serenti for 3 years . will not give chance for the accused to give submission . Plus.Give liberal interpretation –involving drug trafficking . of Malaysia 1979 . ii. decided : It is still within Malaysia. need to get a new . Thus.When there is prima facie case.Report made : drug be under them and court decided to send him to Pusat Pemulihan 1 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 .Immigration rejected his application because there is a criminal charge upon him\ - . they challenge because the gov. Ct.Right under clause 1 should be read together with Art 9 . not oversea Deprivation of personal liberty can be done by any authorities if there is valid reason . has to give 3 choice to the accused :- i. those deprivation was made in accordance with law Lim Hai Sang [1992] 3 CLJ . wants to close the place .Pertaining to Art 9. Give statement from the accused “dock”.His passport expired. not subject to cross examination – bad evidence iii.Challenge Art 5 & Art 9 Ct.During 14 days. will be brought again to the court. he got permanent residence . Give evidence from witness box – good evidence . Remain silent – Ct. test taken then be sent to laboratory process. he was convicted because of trafficking (death penalty) . decided : Ct. set aside the conviction . the Ct. Principles of fairness which have been recognized by the ct. The court will demand that particular provision must be just. In interpreting law as Jus . It must not be violated especially in a judicial process :- (a) Audi Alteram Partem (right to a fair hearing) Any person subject to the law where given the opportunity to be heard (b) Nemo judex in causa sua (the rule against bias) No person involved in judicial proceeding should have an interest in that proceeding Meaning of Law (Art 160) . . ordered to remanded in prison. will require the fulfillment the standard of natural justice iii. but the Ct. .Subsidiary law made by Dewan Bandaraya Kuala Lumpur (DBKL) Norman bin Ismail [2006] 2 MLJ . said that meaning of law also derived from cases : 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . Law in the abstract form which also means to include concept of justice and fairness.Ct. Held: Order was made by magistrate was not in accordance with law Ooi Kean Thong [2006] 3 MLJ . the ct. Law as positive law plus additional principles. . will not be concerned whether the law is just so long it is law.Its include others sources as well.He was arrested by drug trafficking . reasonable and fair before it will recognize the validity of particular law .The word ‘includes’ should be read broader – liberal as not mentioned the word Islam.No kissing and hugging in public place (law may district) . Similar terminology would be natural law.infringement of personal liberty 3.Indonesian come to Malaysia without valid documents . over time (an established principle) . The Ct. .Drug trafficking is “unbearable” – no way out – no discretion. and ask for the drug addicts should be supervised by their own parents . The meaning of law [Art 5(1)] Theoretically. Law as lex as law in strict legal sense of law which is enacted by competent legislature which to establish procedures . Natural justice . . why? . Jus . . enacted by competent legislature ii. The father dissatisfied with Serenti.Pending. Lex . law can be interpreted into :- i. Art 3 : status of Islam Art 74 : power of state to make law on Islamic matters .Not guilty. Law includes natural justice principles Haw Tua Tau .There must be a substantive law to deprive one’s personal liberty . Substantive law (written law) Lex – punishment. decision made is invalid Polasingam v Commission of Lands . right. Procedural law (fair procedure) Jus – use the word ‘due process’ in India Constitution Malaysia only has ‘law’ not have USA Process – but still we refer to decided cases.Preventive detention detain without trial It is sanctioned by sect 8 of ISA Empowered by minister for 2 years.Amendment to CPC/criminal trial .Natural death punishment section 39A of DDA (natural life imprisonment) Cik Ani bin Itam . unjust law. Parliament has power. it is within parliament . power. .Ct.Harsh or not. He entitled to make submission even the case is prima facie. decided that it is constitutional Re Rosyidee Muhammad 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 .Natural death of punishment is constitutional Karam Singh 1969 – involve ISA . decided that all those matters are not under their jurisdiction.Land Acquisition Act : gov.only listen . Failed to follow proper procedure. before the court make submission. bcz its threatening the security . then yes. has power to determine which land to be acquired absolute power of state land owner is entitled to compensation : also entitled to right of hearing (natural justice) Arumugam Pillai v Director of General Income Tax .Income Tax Act : hearing not applicable . and right to arbitration .Challenge on the ground of the validity of detention. Case: Lee Kwan Kok .Ct. did not taking note. decided that deposit of money to pay tax is constitutional that is why hearing is not applicable . Case: Tan Boo Lian – rule include natural justice Right to hearing Rule against bias Ong Ah Chuan . not on the court.Ct. Contrary to fair procedure Poo Va Neswaran . the detainee only received 1 form . Improper . the detainee should be given 2 forms” .Emergency power .Not just written hearing. Illegal (void ab initio) . but also lack of right of hearing . . Only higher court have this right. family. Unlawful . Drug dependants ordered by Magistrate to be sent to pusat pemulihan .Non-seizable offence : arrest by warrant illegal detention if no warrant ii. is not valid ART 5(2): HABEAS CORPUS – can claim remedy to the person being detain unconstitutionally Sect 25 + Schedule 1 of Court of Judicature Act Sect 365(1)(b) of CPC Art 5(2) of FC Technical meaning: a prerogative writ issued by the court used to command a person who is detained another in custody to produce that person before the court. apply for improper habeas corpus Rajes Kanna A/L Marimuthu 2004 3 MLJ 155 .for example.No oral hearing given .Subsidiary law made by YDPA. the imprisonment. Who can make complaint? .unbailable discretion of Ct.Seizable offence : arrest no need warrant unlawful detention if detention at that time is valid but no production before the court iii.Anyone (detainee.Dismissed reduction in rank Raja Abdul Malik Muzaffar . – not mental Wong Kai Chuan It could be public custody authority / private custody Can be applied in both criminal trial and civil trial CPC used word : “improper/illegal” detention Fed. but also verbal hearing . He is not given right to representation . 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . lower court don’t have.sect 39B of DDA (Dangerous Drugs Act) – punishment for drug trafficking is death penalty . “if any detention made. the jail condition is very bad improper detention.Oral hearing is part of right of hearing .Not only procedural fairness.But.X constitutional = X natural justice Tan Teck Seng . Consti used word : “unlawful” detention how to construe ? i. etc) Meaning of Detention : physical detention as decided by ct. relatives.Decision made by the ct. Art 128 – habeas courpus for Federal ct. 6x8 feet size. . Valid custody Ooi Ah Phua Custody of child : a) Valid custody Azizah bt Syed Ismail if father applied for custody. too small.it is given after 2 months delay .Detained under ISA – economic ground not under ISA .Suffered huge loss . Hoo Thiam Siang .pre-determined decision Yit Hong Kit . Lawful detention III.can apply for habeas corpus 4. Procedural ground .Managing director of Affin Bank . Substantive ground Re Tan Sri Raja Khalid .no legal representation before sending to Pusat Pemulihan . bad motive undue delay Abdul Ghani Harun . then brought to Taiping When habeas corpus is NOT applicable? *not really sure* I. only 15 minutes to eat and taking bath. Nor Kurshiah bt Baharuddin mother can apply for habeas corpus.can apply for habeas corpus 3. vice versa 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . The detention is made outside the territorial jurisdiction of the law Case. he complained for bad. locked. the accused applied for habeas corpus Ground for Habeas Corpus application.what make a detention unlawful? 1.ground of appeal : 57 days . Valid imprisonment Case:Dato’ Harun Idris v Officer in charge of Pudu Prison II.Held: can apply for habeas corpus 2.Ct held : the absence of valid reason to be detained under ISA. sometimes even no water. bailable matter of right . Re James Wong Kim Min – detained in Sarawak. and already occupied by 3 prisoners in one cell – no water supply. Extended ultra vires(mala fide) revenge. health condition .Technical defect – non-compliance with procedure or condition.Sect 28A of CPC . the accused need to be remanded. o. Writing ii. of prison .” Yit Hon Kit v Minister of Home Affairs.o. Malaysia & Anor.an arrested person has right to be informed about the charges upon him that form the basis of arrest -Held: apply for habeas corpus 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 .Art 5(3) – right of a person of lawful arrest 1.but normally not difficult Aminah v Supt. . How? – person went complaint to police report.a has been communicated after service ended .Ct.Merely reasonable circumstances “ I saw you snatch the womans’s bag.could be one hour/3 hours later. need warrant. Case: Re Pe Long @ Jimmy.involve ISA . The police also has power to arrest without warrant. Seizable offence if police arrest. decided that arrest must be made immediately Ground of arrest also can be denied or excluded Mohd Nizam Mohd Nor Ground of arrest can be made through i. o question of fact. police may be liable for damages.a is done orally .g. of Malaysia Ground of arrest must be communicated Case: Kumareshan . If non seizable. Right to be informed of the ground of arrest [Art 5(3). depending on cases If it is wrongful can claim for damages (tort) Tan Joo Koh Abdul Rahman Christie v Re Chinskey Syaaban & anor v Chong Fook Kam Jaya Rahman Mahmud v gov. If not follow procedure. Oral/ communication Should be seizable. The ground can be given orally. Non-seizable offence the police cannot arrest unless with warrant When ground of arrest can be communicated? o as soon as possible – without undue delay – but can have a gap of arrest and being informed. the police get a credible information and reasonable suspicious ground to arrest.g.first limb] Arrest means: deprivation of human’s freedom/ we lost our freedom CPC section 15 illustrates what constitute arrest – surrender submission Arrest is a question of fact. then produce out ground of arrest. . no need to mentioned it in detail.habeas corpus 2.the principle was laid down by case :- Bakar Ahmad Sim Kee Guan (choices) .the police just mentioned to arrest on the ground of ‘security’ (not sufficient) Chong Kim Loi 1989 2 MLJ . Art 5(3)-second limb: Right to legal practitioner – 2 stages: after arrest & in court of law Cross-refer to section 28A of CPC 1. So cannot Karpal Singh . thus he was discharged by the ct. if need explanation. Lim Guan Eng .The acc. .Foregin lawyer also can be applied (ad hoc) to enrolled as advocate and solicitor but AG has power to object.The acc.Ct held: right to be informed just enough to be in general way. but K.amount to personal liberties case : Yit Hong Kit . no need foreign lawyer. . rejected the application to free him – might misled the court.Karpal Singh willing but not able. De’ Cruz v Attoney General Malaysia .lawyer should be willing and able.He wanted to argue that his detention was unconstitutional as he is prominent lawyer. Wanted Karpal Singh as his lawyer. Singh at that time was in detention .Court rejected the application because ISA can only be use for Malaysian lawyer. then just explain it.Ct. What are the words used to arrest? Abdul Ghani Harun . o If there is no communication will depriving one’s life –not according to law.Who is LP? – have legal qualification as an advocate& solicitor and have practicing certificates which need to be renew – controlled by Bar Council . E”g: you are arrest” . Right to choose legal practitioner .David martial has rejected by ct.He was also detained in Kamunting under ISA . Lim Kit Siang was charged under OSA (Official Secret Act) . because there are still lots of other lawyers instead.court granted. to become lawyer in that case. 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 . Louis Blom Cooper .The prominent lawyer . Criminal trial. suspect may apply for hobeus corpus.Magistrate signed on behalf of the lawyer . held : 10 days was reasonable period Ramli bin Salleh .The ct. that right is not absolute Sahul Hamid .The ct. not with the acc.The urine test to determine has drugs or not . need to be represented by laywer.If +ve magistrate sends to Pusat Serenti .Ct. Right to have consultation . granted 2 weeks for the acc.It is applicable when brought to the magistrate within 24 hours. he was detained by the policemen .The ct. wants to proceed the trial .10 days later he was given right to see his lawyers .Ct.Some principles already ceded by amendment but some legal principles made by court. .This right not only exist in proper trial. was away. granted habeas corpus Muhammad bin Abdullah . the suspect is subjected to legal representation not rely totally on police 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 .If failed to give his right.No right of hearing .Held: communication amount to privileges .Drug Dependence (treatment and rehabilitation) Act – before being sent to the centre.2. . fit for hearing . Hoo Thiam Siong .No legal representation .right must be given as soon as possible . .Postponement must be with valid reason . .During the 24 hours.Police can only see from reasonable distance but cannot hear.Meaning as soon as maybe: Ooi Ah Phua v OCCI Kedah + Perlis .Lawyer of the acc. but also in the course of remand proceeding (S117 of CPC) . Right to be defended by them .Thus. 3. it began from the moment of arrest. can detain until 24 hours only. . .After amendment. . suspect entitled to have a lawyer. convicted the acc. then brought to the ct – entitle to be represent by lawyer.During investigation – must be carry out by police.Robbery.all have been completed. .If –ve . .a person is detained under section 2(1) of RRE . enemy alien. Further is detention after 24 hours (consent of the magistrate) must be obtained -first class (judicial magistret) -second class( registrar of lower court) (s 117 of CPC) . sec 28A of CPC – suspect can be represent during remand. Under sec 117 of CPC. remand order (2nd application) is plus 3 days . Must be made on the day of arrest. necessary journey art 5 (4) iii.non citizen which the country has war with Malaysia (Art 5(5) ii. . . RRE: arrested person gaining right vii. Interpretation of Ct. reasonable delay a little bit longer. . SOSMA – police has power up to 28 days to detain – later POCA &POTA (but must prove reasonable ground) v. it only covers detention under CPC.death max granted by magistrate is 7 days 2nd application is plus 7 days 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . Preventive detention: -submitted to board -No production before legislate viii. arrest made under special law eg. .MB holds a further enquiry in camer. no citizen made offence of immigration – up to 14 days. vi. the detainee does not have right to be represented by a lawyer.detention below 14 yrs remand order is given 4 days only imprisonment – not offences made under special law. Ct. Can delay the production to the next day of (public holiday) Remand order is given but subject to number of exceptions: i. not RRE Art 5(4): Production before magistrate within 24 hours Judicial interpretation to avoid more power of executives How to calculate 24 hours? 0 hours => 24 hours (on that particular day) Case: IGP v Lim Kim Hung . granted habeas corpus Art 5 must be read together with RRE Chie Khin Sze . 30 hrs etc iv.Held: Right guaranteed under Art 5 of FC does not extend to an executive.detention above 14 yrs. The day after 24 hours is public holiday . Ct.arrest more than 24 hours. If not. .Employment which is not made in accordance to law or voluntary basis. Meaning : . If he is from other dept. 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 . but with the new management without giving notice to give option to worker either proceed to work or not.Employment which is outside of agreement/contract Treatment is a slavery or not? Id depend on the situations/ value of society. Initial arrest – less than 24 hours 2.Subject to several exceptions National Service Act 2002 . Police if they are requested to do some other works if urgency extra salary . If more than 24 hours without order.Bharat company owned luxury of state . . ART 6: SLAVERY AND FORCED LABOUR Slavery is total prohibition – no exception Parol system is Australian system? No absolute protection .Compulsory service for national purpose The most suitable law to apply parol system.Under Employment Act (the employer/employee may give a notice of termination of employment .Pf (parawakan) is the employee of Bharat Estate . is Prison Act Eg : .SLAVERY : Domination/ Exploitation of human being of their own kinds namely human being who manipulates them . a person is not allowed to be further arrested.Bharat Estate sold his company to new company (took over the management) . decided : there should be employer’s duty to give notice. but be borrowed by other dept. Police remanded by Magistrate order .There is no notice given by former employer to terminate or give choice to employee whether. Without such order.FORCED LABOR : . Arrest is unlawful 2 stages of arrest: 1.The company retained old workers. Maximum is 2 weeks and minimum is 1 day. Only relevant if the arrest is more than 24 hours .SLAVE: A person who is the legal property of other person and be obliged to absolute obedience loyalty to his masters . . to continue working / not to work with the new company . arrest is unlawful. Bharat Estate v Parawakian . will lead to forced labour under Art 6 – element of voluntarily is put aside. Domestic servant . . Anti-Trafficking in Person & Anti-Smuggling of Migrants Act .No procedural & substantives restriction .Less than 1/3 3.She is suffering from physical health problem. at first he guilty .Held: Treatment by the employer towards her is considered as slavery In order to protect and avoid slavery + forced labour.12 years imprisonment Exception to Forced Labour 1.Captured by communist – charged for criminal offences .Borrowed from creditor but unable to pay . but admissible.Certain sentences only. 2 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . .In order to pay debt. Nirmala Bonett .Pension – Last drawn salary .Held: Sexual also part of forced labour and slavery Subramaniam v PP .Consentient basis. once confirmed no need to pay 13% 2. gov.Having not enough evidence .Found to have carried the ammunition bomb .not work .But can challenge if exceed the limit 2.Appeal: Private defenses . he asked his wife to prostitute.Prevents unlawful immigrants from other countries Other Cases: Wong Lai Fatt . SOCSO (PERKESO) 3.Parol system go out from prison and work community service. need to pay to contribute to EPF. has passed several statutes : 1. Serving – Community service .However. when he appealed to higher ct. US v Ingalls 1947 . he was acquitted . pay OT .the payment then paid to them . . Beyond that.Time of working (working hours) – 8 hours only. KWSP – works with Gov.The word was not hearsay. PLKN – National services .Couple from California had maid – employer kept all the personal belonging .The Husband kill the creditor. Employment Act @Social Welfare Legislation : . Public authorities can be borrows by another authority .Extra territorial offence .S2 .National purposes not defined under Art 6 but can define under federal state purpose.EPF. 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . Eg: Police officer need to take care the prison.. If involves criminal procedure law. then on 2016. Thus.Following Islamic principles . the punishment on 2015 cannot be increased. when a new law made on 2016.Amendment of clause (4) is valid iii. ‘Backdated’ principle is valid.Eg : a person has committed a crime on 2015. the law is just made.S19 of Interpretation Act If the act of parliament is silent about the date of Act. So. Was charged under sect 57 of ISA. Second limb [Creation of greater punishment] – cannot be backdated . it can be backdated.Change of trial from ordinary law (PC) special emergency law must be 7 juries . it cannot be backdated. take the date of gazetting the law Several exceptions of ‘backdated’ principle :- i. Then.No new creation of offence & punishment .Eg : a person has committed a crime on 2015. tried under special law under emergency law . Not civil law Case: Loh Kooi Choon . If it involves substantive criminal (which related to offence + punishments).Adding proviso – not apply to restricted law . Not procedural law ii. the punishment is lesser.Involve RRE (no crimes) . First limb [Protection of backdated criminal law. Clause (2) Involve criminal procedure double jeopardy (2 trials) Art 7(1) First limb [Protection of backdated criminal law] Principle law of prospective vs retrospective :- . Tried without 7 juries – only 1 jury . the previous offence cannot be charged under the new law. Not contrary to Art 7 (1) 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 .cannot be backdated ] . Case: Lim Sing Kiaw .Parliament amended the provision by excluding type of arrest . ART 7: PROTECTION AGAINST RETROSPECTIVE CRIMINAL LAWS & REPEATED TRIALS Clause (1) Prohibition from :- 1. it has a greater punishment than the previous one. the offence is backdated 2.Shall not punish except proven guilty . who was acquitted before because there was no defence. There should not be a discretion on part of ct. he was acquitted at the end of 1997 . Case: Haw Tua Tau . the amendment of Act was also at that time Prior to that.Bhagwant.Mode of giving evidence after being called .Amendment of s113 of CPC. decided the law is not backdated.Involve procedure only valid Art 7(1) Second limb [Creation of greater punishment] Case: Mohamed Ismail v PP . has power to detain the drug trafficker without trial . decided the amendment is X backdated and X applicable to the trial The quantum of proof is substantive Law of Evidence. death or life imprisonment Case: Dalip Bhagwant Singh . a conflict on decision made by Federal ct. Must prove beyond reasonable doubt according to CPC Involve greater punishment 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . inspection. the accused can be given options.The new amendment of CPC is applicable to Bhagwant Singh or not? Ct.At that time. The Quantum of proof is just a prima facie Another decision is made under beyond reasonable doubt . amended to death penalty only.Amendment took effect before charge valid .The gov. there was already a settled law:- The onus of proof lies on prosecutor The quantum of proof beyond reasonable doubt Both must be fulfilled at both stages. punishment for drugs trafficking is only death / life imprisonment Later. Ct. .On 1996. was later being tried again . should give portion to victim .Charged for CBT . Case: Dato’ Harun bin Haji Idris .Charged under Dangerous Drugs Act (Special Preventive Measurement) .Parliament later amended S180 of CPC Only sufficient with prima facie .Abolishment of gov statement – remain silent @ giving statement .S39B :- The offence committed on 1983.The crimes is committed on 1983. defensing stage or prosecuting stage .Held: right to answer statement can be abolished. statement given to police during police investigation. different transaction. decided him to attend Henry Gurney school. read illustrations in s302 + 303 of CPC .PoG cannot be genuinely valid (can be undue influence) . . in order to prove double jeopardy : i.Ct. when the Acc already graduated from that school. so not double jeopardy: found guilty.The Acc has been called for defence but. there is a new trial after that plead on the ground iv. no need for imprisonment 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . the Acc is acquitted or convicted Thus.Double jeopardy /not ? . he got a new punishment for 5 yrs imprisonment . refer to sect 302 + 303 of CPC . . If guilty.can be ordered by the ct. if that prosecution decided to withdraw the charge . he was charged also under S57 of ISA –unlawful possession of firearm. as a result of first trial. court said NO. the Acc can iii. decided : double jeopardy.initially can be liable up to rm10. thus. while the case is still pending. one offence) . remained silent .Whether increase of CJ amount to greater punishment? . will ask him again to admit the PoG (plea of guilty) .he challenged the validity of 2nd charge .A young offender (below 21 y/o) was charged of statutory rape . different ingredients.PP appealed. prosecutor failed to prove prima facie Prima Facie + call defence + prosecutor failed to prove beyond R.The Acc failed to create a reasonable doubt The meaning of “same offence” Jamali Adnan v PP 1996 1 MLJ .both charges is not within the same offence.if the Acc found guilty .Exceptions to second limb: Increase court jurisdiction Case: Harry Lee Wee . one trial but it got more than 1 distinct offence (many offence done within one single transaction) .The case was tried under Juvenile ct.was charged of robbery.D. hear the trial.if magistrate ct. until 21 y/o . death penalty.Ct.after hearing. Nordin Yusmadi v Yusuf .ct. (the Acc successfully prove a reasonable doubt) 2) Conviction . this new trial is of the same offence with the first trial of double jeopardy Either Acquittal & Conviction? 1) Acquittal – found not guilty .000 for each offence . Art 7(2) Involve criminal procedure double jeopardy (2 trials. different occasion. there must be a trial ii.later was amended. ct held : word ‘X re-trial’. whether disciplinary action is amount to double jeopardy? . of law (judiciary) not guilty 2nd gov decided to take disciplinary action (administrative/executive) . of law . there must be PE (pre-liminary enquiry) . Case: PP v Musa Disciplinary action . when retrial X PE .As civil servant. Exceptions to double jeopardy (cannot plead of double jeopardy) : i. is subjected to misconduct.He was charged dwelling on criminal offences .challenge the validity of this board. decided : double jeopardy because not administrative proceeding Zakaria Abdul Rahman .Brought to disciplinary board for same issues-challenged . was charged of criminal offence before retrial.PP withdraw the charge .The lawyer never look offence committed by his staff. decided detain under detention law. and then.bar council decided to take disciplinary action board .found guilty fined by the ct.Police officer having affair.Held: amounted to double jeopardy Arbain Basri 2008 3 MLJ .Acquitted .Ct.Held: not double jeopardy because it is administrative proceeding as he is a civil servant Harry Lee Wee v Law Society Singapore . Appeal iv. was stopped by a superior to stop the relationship tried before ct. 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 .Utayakumar Munusamy v. Discharged as result of DNAA (discharged not amounting to acquittal).not report . Two different offences on the same fact. ordered re-trial Case: Fan Yew Teng . thus new trial must be there since the trial has been quashed.So.Jamali Adnann iii. The accused has already been subject to Preventive Detention order followed by restriction order. So not double jeopardy ii. If conviction was quashed at first by higher ct.Outraging the modesty of his students: 1st was charged under ct. ct. .the concealment was changed under ct. . . .Police inspector was charged for double jeopardy. After completed not guilty.Whether the disciplinary proceeding can be used for the purpose of Double Jeopardy? Muhammad Yusuf Samadi (Singapore) . No need to similar.must be given fair trial PP v Rozali . 2nd limb of Art 8(1) : entitled to equal protection of law . Ct.Charged with culpable homicide under PC but the court binding the punishment is too lenient.Applies to everybody . revisionary jurisdiction altered the punishment 2.Magistrate & his brother was charged under traffic offences (non-seizable offence) . just take into disciplinary proceeding ART 8: EQUALITY Art 8(1): General prohibition all persons (not confined to citizens only) X positive concept Art 8 (2) & (3) & (4) : Prohibited ground – not allowed to discriminate Negative concept : “no discrimination” – only to citizen Art 8(5): Permitted ground (exception) positive concept express exception Implied ground of exception not mention in FC Rational classification Islamic concept: there should not be more than one.Magistrate gives very lenient punishment (confined & discharged) . He is the eldest prince of Johor ruler . substantive law iii. Take into 2nd trial .Public authority not only confined to definition under Art 160. . Take the woman as 2nd wife. Double jeopardy for 2nd proceeding . Eg: Punishment – should be charged equally. without the permission of the IGP (superior) .No discrimination from public authority (meaning of public authority Art 160) . 1.Means: equal justice – putting something at correct place. No need ct. 1st limb of Art 8 (1) . legislature etc they have a valid ground cannot say it is unconstitutional 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 .If wants to do so must be on discriminatory ground Case: Tengku Mahmud Iskandar .On appeal: Ct. procedural law. Also include elected and unelected law.Meaning of law as Art 5(1) & Art 7 include both: i. addition + parliament also have power to make law to discriminate . includes natural justice not necessary to be written iv.universal code – applied universally eg: CPC ii.National qualification : If made by gov. . decided not to adapt discriminatory principle.Sources of law also from judicial interpretation . should not be biased. court. .High ct.Not absolute (equal before the law) .General defences under PC . of law to settle the case. To become a leftenant must have a degree .First few word as expressing authorized by this constitution .but.However. Art 152 public authority use Malay . he is MB. Case: Law Khee Hoo . Use protection of life + Art 8 . got pregnant. thus he is transferred to High ct. Detained under ISA Dato’ Haji Harun v PP .was charged of corruption session ct. Unlawful possession of firearm . she got pregnant 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 .was challenged the validity of transfer (discrimination) .Stewardess enter into collective agreement with MAS ( not pregnancy) .Married. places everywhere etc “like situation be treated alike” equality provision is qualified express discrimination Art 153 Khon Teng Khen . . decided to give numbers of principle: equality provision X absolute not all laws be applicable to every person.University requirement must be a single X married .Still studying (as a cadet) . she has got married and pregnant Beatrice Fernandez v MAS .Held: the withdrawal is unconstitutional – only women give offspring Nurul Syamimi (still pending) .Not allowed to public authority (Art 160) against citizen on several ground: Religion Race Descent Place of birth Gender Language? Can be or not? Merdeka University Berhad v Govt of Malaysia 1982 2 MLJ 250 . offer letter was withdrawn by gov.rule of equality = rule of law 3. thus attachment tender(temporary teacher) .ct.Is a public university.Need medical report .However.Language not prohibited under this provision .university is not citizen Noor Fadhila bt Ahmad Saikin 2012 1 MLJ .She challenged the validity of withdrawal (gender) pregnance – interconnected .Public authority cannot discriminate . Art 8 (2) : prohibited grounds .Propose mandarin language as medium .Held: the discrimination cannot be made against citizen.A woman got an offer from education dept. . Implied exception: common law exception i.Reasonable ground in discriminating the citizens on part of AG to charge a person under suitable law Poh Choo Chen . No bail . iii.Islam d) Art 12 (2): right to be presented before the ct. She challenged the validity on ground of discrimination based on gender . joined trial both charges – giver and givee 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . Held. Rational classifications . Emergency law : Art 150 . Long bin Samat v PP .2 party – givee and giver .Before trial. Ordinary law . only public bodies – the termination is constitutional. Also other provisions in other statutes: a) Art 9: restriction of movement.Only person who receives the money. - 4. Penal code : general defences iv. No production before magistret (Art4) v. b) Art 11(4) c) Art 3. the charge is withdrawn .Held: Acquittal – made request by the givee.Originally. Express exceptions: mentioned in FC i. Under CPC : special law . Permitted grounds to make discrimination I. . Special Trial . Special law . Law made under Art 149 . Special mode of trial II.The Accused pleaded guilty . withdraw the charged against giver . not applicable to private bodies.Bribery / corruption . Art 8(2) not cover the collective bodies. Terengganu consti) ii. Art 8 (5) Shariah ct = personal law Special protection for aborigines Adong bin Kuwau Qualification of election State constitution before FC (Johor consti. MAS decided to terminate her service . . So the PP withdrawn the charge upon giver. . or magistrate ct. of Malaysia v Menon (Pensioner) . that of Malaysian currency . there is valid reason to discriminate Malaysian Bar v Gov.If can convince the ct.Racial riot on 13th May 1969 Proclamation of Emergency by YDPA . the bribery is initiated by the givee .The main purpose of the law is to be having experienced persons in that post . Only givee is charged. not other countries .Menon retired from his job & lived in India .This law was challenged : Is this a part of discrimination or not ? If so. accepted the argument amendment valid .Inflasion exists everywhere.Inflasion of Malaysia Money Administrative v Executive discrimination .Junior lawyer cannot. Under S57 ISA.LPA governs lawyers junior or senior no discrimination . parliament has amended the law to include junior lawyers are also eligible Gov. of Malaysia . but the main reason of gov. .Only senior lawyers (7 yrs of studying) are eligible to be elected as Bar Council & its committees. Essential (Special Cases) Regulations 1975 (ESCAR) . However.The Acc was tried under ESCAR.Reason of gov.But then the PP got another reliable additional facts for the case to be tried under session court to get more severe punishment . 3 available law : . . the facts of each bribery case must also be based on the investigation by authority (not all givee must be found guilty) Nadarajah v PP . is only entitled to pensioners living in Malaysia.Gov. ii. Executive power can choose suitable offence . Legislative discrimination .Ct. Ct. firearms 7 yrs prison -> 14 yrs + death penalty Johnson Tan Han Seng . decided the power is belonged to AG to exercise his power based on valid reason Normally.PP has power to register the case under session ct. decided to amend law any adjustment/amendment of this act made by gov.The case actually tribal under magistrate ct (because punishment only up to 5 years imprisonment + 12 strokes only) . is valid constitutional .YDPA made an emergency ordinance namely.Pension (Adjusting) Act .Choice of venue of trial . but challenged ESCAR's applicability on the grounds that there was no state of emergency in 1975 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 .Now. was there any valid reason or not ? . The give challenged the validity of withdrawal of charge upon giver . Possession of firearms. Muslim man can marry up to 4 wives 3 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . is the first offender. A can challenge the validity if charge on the ground of discrimination. the executive must not take into account irrelevant facts. still using the weapon but in other manner of offence (extortion for example) II. . can also be found in Shariah law: 1. Thus.3 statutes: need to choose either Arms Act (7 years) or Firearm Penalty Act (10 years) . . The state of emergency in 1969 had been ceased . PP must have a valid reason . If not.revolver@firearm . Maybe the previous offence. not justiciable issue Teh Cheng Poh 1 MLJ 1979 . Ct held : this is a political. make sure the AG has valid grounds in order to charge under FIPA. A charged under FIPA (Firearms Increased Penalties Act) . B charged under Firearms Act.Pertaining to sec 57 of ISA. Take into account relevant grounds only Eg : 2 persons in possession of firearms. Some discriminations are permitted.The pv council held : it would have held an emergency proclamation justiciable as the continuance of a security area proclamation under the ISA is justiciable . AG must take into account relevant facts before charging a person Eg : take into account A. Portion of faraid law – 2:1 2. In order decision made by executive amounted to rational ground valid one. .further study – returned to Malaysia . Was charged with criminal offence upon him. to live. It’s allowed the restricted residence for internal banishment.Right to enter country regardless of existence of passport(has right to return to Malaysia) . SOSMA Case: Assa Singh v Menteri Besar Johor . ART 9: FREEDOM OF MOVEMENT Art 9(1): Prohibits the authority to banish citizen Art 9(2): Freedom of movements and power of federal law Art 9(3): Right to move freely within the federation and to reside anywhere in the country.cannot renew passport . stay and enter Malaysia.Guarantees the citizen the right to stay. Malaysian citizen-went to Australia. to travel overseas and to have passport. Applied to HC for an order directly to authority to issue him a passport & contended that he has fundamental right to travel abroad and the refusal of passport violated this right. 1. . Art 9(1).Protection of Banishment . FC: Art 9 is silent as to the citizen’s right to leave the country.Can work and have no restriction from working.It can be claimed only by Malaysian. The person can be restricted to live in certain area only and his movement are monitored or under surveillance. of Malaysia v Loh Wai Kong . Arrest made by executive (MB) under RRE 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . Eg: POTA 2015 – who are engaged with the commission/ support of terrorist automatically involving listed terrorist organisations in a foreign country. and enter Malaysia with or without passport. Art 9 expressly give freedom to move freely within the country and to reside anywhere in it. The citizen has no constitutional right. Any law relating to: a) Security – Police Act. . .not applicable to Foreigner. will be charged and for civil cases. or within country.This article prohibits banishments from Federations. Case: Gov. gov can allowed them to live. Special power of Sabah & Sarawak relating to immigration. The person can live forever in the country . ‘Within country’ (Internal Banishment): internal security to dwell. ‘From Federation’: by Banishment Act 1959 but has been repealed whereby citizen have right to enter Malaysia but criminal cases. HC: rejected his application. Five Constitutional Limitation on the Right: . will have to pay fines. . Art 9(2) – Freedom of Movement in the Federation.For non-citizen. 2. only not allowed to go for certain places. but can’t invoke their right. . . N9 born.The FC permits the Borneo States through Part 7 of Immigration Act 1963. give wide power to control entry into either state of Citizens from disclosure in Malaysia. Suspension of driving license . A person belongs to Sabah & Sarawak ii. . Held: cannot be banished from Sabah. . 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 . Section 66 of Immigration Act (must have permit) :- Exception i. (Art 9(3)) special position for Sabah and Sarawak. Held: Need public order to maintain order on the land c) Public health – Infections Disease Act d) Punishment for offenders – Prison Act e) Parliament may by law impose restriction of movement and residence between any others. Held: the power to give permit to enter Sabah & Sarawak belong to Director of Immigration Sabah. Infringement of breach of freedom of movement . Civil servant iii. 3. Case: Sugumar Balakrishnan .Malaysian citizen not from SS can be restricted from entering SS. but can get the Permanent Resident in Sabah as declared by Native Court. Being cancel his entry permit to Sabah under Sec 65(1)(c) of the act. held: parliament has power to make restriction. Ct. . Such an entry being issued by the Director of Immigration Sabah. b) Public order – Road Traffic Act Case: PP v Harminder Paul . Kedahan. A west Malaysian needs an Entry Permit to enter Sabah (Sec 66 Of IA 1963). must be on ground of constitutional grounds due to public security. Ministers Case: Dato’ Syed Kechik . Art 9 (3) – special position for Sabah & Sarawak . went to Sabah to be a teacher for 2years. . Presses & Publication Act 1984 Have license to any newspaper published .4)) by parliament b) Action/decision by gov. have 3 major rights: Speech Assembly Association a) Right are not absolute. ASSEMBLY. 1. Eg : Printing. Under Art 10. enough if there is tendency 1. subject to restricted (Art 10(2.3. talks Expression: physical actions Not necessarily in oral method Can also be in written form. d) Restriction can be challenges e) Art 10 read together with Art149 and Art 150 Lau Dak Kee v PP . oral. Parliament may made: Extradiction Act – criminal from India. Freedom of speech & expression (Art 10(1)(a) . subject to judicial review c) Rights are given to citizens only “every citizens” not every person. Speech & expression : Refer to dictionary for the meaning – utter.these rights are subject to restriction 1. All these subjected to Sedition Act 1948 Sect 3: No need to prove actual sedition. PP v Mark Koding 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . printing. remarks. These right are subjected to great numbers of restriction Art 10(2) : . Art 63 & Art 72 Protect SLA & parliament privileges Art 126 contempt of ct. Gov of Malaysia consent back to India Public Order Defamation (civil suit) Insignment – to go against the government Films Act Morality Art 10(4) – questioning itself is an offences. & ASSOCIATION A) Introduction B) Right to freedom of speech C) Right to Assembly D) Right to association Sometimes include political right – principles of democracy – allowed to participate the government. (courtesy) . ART 10: FREEDOM OF SPEECH. from PR BN . Power to impose condition . Karpal Singh . Publication & Presses Act 1984 Requires a permit : To import sect 5 12 months of permit or non-permit Power to grant/not grant by Ministers of Home affairs Case: Persatuan Aliran Kesedaran Negara v. He made a speech before parliament in which he questions the existence of Chinese and Tamil schools & the use of Chinese and Tamil on signboards . Absolute discrimination of ministers 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . Decision was reversed on appeal in the Supreme Ct . Parliamentary privileges does not immune the MOP if they asked questions under Art 10 (4).Whether Mens Rea is necessary? . Constitutional crisis in Perak . Thus. Held: found guilty under Seditious Act 3. Sultan not dissolve the state assembly . Supreme Ct : the amended section 12 of the Act exclude actions of the Home Affairs Minister from judicial review . must have permits. In order to publish. the Acc question several matters : Art 72 Art 152 Art 153 Art 161 . High Ct : quashed the decision of the Minister to refuse permission to publish a Malay publication . Mat Suhaimi bin Shafi v PP (latest case) . He was found guilty. . Case: PP v Param Cumarasamy . Not guilty Printing. Exception in sect 3: . Change of gov. Therefore sec 3(3) is unconstitutional. was charged under sect 3 of Sedition Act . Disaffection does not mean absence of affection but refers to disloyalty. The acc is a member of parliament . 2. He called to amend Art 152 seditious act .If there is consent to ensure the gov in proper governance from any rules that have mistaken. Criticism against decision made by pardon’s board not a seditious . Minister of Home Affairs . enmity and hostility . Dissatisfaction towards the rule . . no bad motive.Held: MR is necessary. Held: even he is MOP. Contempt of court Case: AG v Arthur Lee Meng Kwang . . Keep shouting to witnesses. The lawyer is emotional saying to Magistrate bias . Contempt of Court i.Official Secret Act 1972 . information not to be revealed to public to threaten the security of Malaysia. He is a lawyer acting on behalf of his client .Matters related to judicial matter contempt of court 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . it becomes no longer secret becomes public doc. Held: Found guilty – unauthorized person – charged under ISA How to make the document not secret? (under OSA) . . ii. through certain authorities . accusing judges not fair . enactments Case: Re Kumarendran . Provisions : Sect 13 of Court of Judicature Act (CJA) Art 126 Sch 3 of Subordinate Court Act (SCA) Shariah ct. then sending number of letters to the sitting judges and lawyers criticizing judgment of supreme ct. Face to face in the ct. exc. give warning to judges . subject to authority to reveal it . State executive council doc. Outside ct. Yes contempt of court . went to impose to Public.Respective authority has power to declassify doc. Document considered as official secret. He lost the case. Tender to buy fast jet for Royal Malaysian Navy . Protect Gov.Thus. National security Case: PP v Lim Kit Siang (1980) 1 MLJ . actually because no proper right of hearing given. the judge simply punish him without giving proper judgment Case: PP v Seeralan . Outside parliament. But. Official secret means documents related to: Cabinet doc. obvious contempt of court Fair criticism not amount to contempt of court . . From 5.Speech cannot touch about Malay language. not to riot Without armed: not bring along the dangerous weapon. gathering of persons Peacefully: Meeting of persons . Went to Hulu Selangor by-election .applying to OCPD(officer in-charge of Police District) . Challenge the constitutionality of the law (sect 15 of Universities & Colleges Act) . Was caught brought to disciplinary board .need to have speaker. .The accused touched. cannot question . Held: guilty Executive reasonableness of restricting: . . ages of above 21. All citizen have the right to assembly peacefully & without armed. The restriction must be read together with ‘reasonable necessary’ refers to the situation of students.speaker should not touch in BM . It was an offence under university rules & regulations . However. Straits Times . of Malaysia . Subject to 2 grounds : i.30-11pm only. etc 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 . Not clear definition : Assembly was defined in PP V Ismail. Security SOSMA. Freedom of Assembly (Art 10(1)(b)) . its validity can be challenged .contrary to Art 10 Madhavan Nair v PP .Impose condition.charged for criminal offences – challenges .DAP decided to gather. Ct held : Not reasonable restriction. court adopted through dictionary: The coming together or 2 or more persons.Have 2 speakers are allowed to deliver speech .Any restrictions made by parliament not within Art 10. For purpose of any activites. etc Chye Chon Hoon v Ketua Polis Kampar .Held: a kind of restriction 2.Sub-judicee : “Cannot pre-judged the proceeding” . UKM student . university is a ground of training leadership . politic.It can amount to contempt of court Universities & Colleges Act .Held: the restriction not reasonable – no need to limit speakers as long as comply with time limit. ‘reasonableness’ of restriction made by parliament. needs written consent from the university Case: Mohd Hilman & ors v Gov. Criticizing police investigation X contempt of court 4.Ct. current sensitive issues. .Administrative/executive action must be reasonable . . Decided to have demonstration . held : in order to find a person is guilty.A needs ‘mens rea’ ? .After Malaysia riot on 1960 student power . held : knowledge is ingredient to prove that the acc.Sect 141 : Unlawful assembly “5 or more members. Penal Code.Whether passive participation amounts of U.Certain principles under PC already codified into PAA Penal Code Police Act Unlawful assembly Right of citizen to have a peaceful . Public order Peaceful Assembly Act 2012.Assembly of lawyers protested law made by p’ment Societies Act 1984 . with intention of committing crime” .Ct. UTM. (a) Penal Code . Lake Garden met together at Masjid Negara .Part 8 (Sect 141 . disturb people police have power to disperse PP v Cheah Beng Poh & Ors . etc .Ct.A PP v Ismail bin Ishak .S143 : punishment Public place Riot (rusuhan) No permit .A under Police Act or not ? .Gather in Kelab Sulaiman.161) : offences against traquility .S146 : elements 3 or more persons .Ct using dictionary to define of unlawful assembly : X permit from policeman Public place 3 or more persons Siva Segara v PP .Ct. there must be active participation in the assembly .A S27 : Elements: . UiTM.Knowledge is necessary to constitute unlawful assembly whether U.S141 : 5 or more assembly : .S159 : 2 or more persons more than 20 people fighting in public place n : private assembly involve speakers. ii.If it is spontanenously assembly or gathering not amount to unlawful assembly 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 . held : ingredients must be looked in order to claim its unlawful assembly.S147 : punishments Affray S27 A : assembly in private place not . UKM.A group of student from UM.Be arrested by policemen at compound of Masjid Negara . is taking part in U. with objects. because at first assembly is lawful .Whether it amounts to Strict liability ? .S142 : member of U. Ct. members of state assembly. held : as long as participant is assembly man. the punishment should be same within the assembly members (not within ordinary people) . Places protected under Protected Areas & Protected Places Act except authorized person ii. 27 sections and Preamble Sect 1: X apply for assembly for purpose of election. The places as may be specified in 1st schedule.The acc challenged. “why being assembly man is different compared to ordinary man?” . airport. place worship.Was charged under sect 27 + Art 8 . place ordinary open to or used by public Prohibited areas : i.Later both sections were repealed and replaced by PAA 2012 . electricity. . Eg : School. Datuk Yong Teck Lee . it deems to be unlawful assembly Narrow interpretation .Amendment of sect 27 & some other sections : Punishment of civil servant.Rational classification (b) Peaceful Assembly Act 2012 . Right to peaceful n enjoyment of property ii. petrol station. Minister has power to declare suitable places for assembly ii. If the places X be gazetted as designated place for assembly.Have 4 schedules.Previously. this right is governed under sect 27 & sect 27A of Police Act : If a person gathering 3/more persons. hospital. Right of freedom of movement iii. Right to enjoy natural environment Child : Age below 15 yrs Assembly means : intentional & temporary assembly of number of persons in public place Participant : a person intentionally present for purpose of assembly Public places : road.The case happened before he became chief minister of Sabah . Places designated by minister under sect 25. etc Designated places of assembly : i. or strike (mogok) also X be governed under this act Sect 2 : The object (purpose/purposes) Sect 3 (interpretation): i. Must get consent from the owner 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . poiticians or ministers should not be equal with ordinary people Fine : not less than rm2000 + 2 yrs imprisonment X discretion on part of Ct.Concept of “equal protection of the law” Discrimination cannot be done within same glass/group . Dictionary meaning : organized body or person .Restriction purpose X to criminalize the participant or organizer . etc Education – Education Act.CoA held : requirement under sect 9 (notification notices) is X required . etc o General law governing this right is: The Societies Act sect 2: includes any club. thus the requirement is prohibitive in nature X restrictive in nature Sect 11 : consent of owner of place Sect 12 & Sect 13 & Sect 14 : police responsibility to inform Sect 15 : restriction & conditions Sect 16 : appeal to ministers Sect 19 : presumption as to organizer Sect 20 : power of arrest Sect 21 : power to disperse assembly U. X create hostility among public Sect 7 : responsibilities of participants. etc Morality – Films Act. or association of 7 or more persons .the power to register given to registrar of societies (ROS) . Freedom of Association (Art 10(1)(c) .The assembly lawful .minister has power to declare society as unlawful .in case of meeting before societies act is an offence .The assembly is conducted in stadium . X Sect 8 : responsibilities of policemen Sect 9 : notifications by writing of assembly to disctrict officer (OCPD) Nik Nazmi Nik Ahmad . partnership.A is arrestable It is a non-seizable offence 3.Unreasonableness effective prohibition .Sch 4 + sect 10 .If refer to Art 10 the punishment made X include the criminalization of participant or organizer . Art 10(2)(c) : Parliament may by law impose necessary restricted in the interest of Security – SOSMA. The Society Act . Group of people who have joined together because they have common profession/interest . Art 10(3): Restriction may also be imposed by any law relating to: Labour – Employment Act. company. etc Public order – Police Act. University & Colleges Act.Police has power to impose conditions.require all the society to register 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 .Organizer : 21 yrs old Participant : above 15 yrs old Sect 5 : those who have business on that place can protest Sect 6 : responsibilities of organisers. Ct held : right to manage not within right to form association Sivarasa Rasiah v Badan Peguam Malaysia . Malaysian Bar v Gov.7 yrs of experience from senior lawyers to be appointed .Ct held : on ground of morality. . Mohd Nasir Hashim v Menteri Dalam Negeri 2006 6 MLJ .However. of Malaysia .Dr. it is not good can be conflict of interest Nordin Salleh . to be in national level at least 7 representatives from diff.Jumping political party cause instability of Govt and affect trust of people.He was denied to be elected of Bar Council members as he is a top leaders of political party .Parti Sosialis Malaysia (PSM) .Prohibited by LPA he challenged LPA .Fundamental rights can be restricted by parliament only X state assembly . state .The law is not valid Abdul Karim Ghani v State assembly of Sabah .State competency amendment is valid Dr.V.The registrar registered this political party in Selangor . challenged the condition put by registrar .Denial the right of forming association . President of PKR .State assembly has power to make amendment on state constitution .Ct held : the condition is valid to reflect federalism of country 4 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . Right to profess religion Profess? – To belief or swear involving in heart Person? – Who already reach 18 y/old.Art 12 (2) & (3) person is no obliged to follow any religion 2.Art 11 (1) . Islam . Art 12 : role gov.Religion of child is determined by parents 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . ART 11: FREEDOM OF RELIGION 3 RIGHTS: . political party 4.Art 12 (2) – financial aid to establish financial constitution Introduction . Individual . and no force. Art 150 (6A) : emergency Who can exercise the right? 1.There will be some issues on “curt group” (ajaran sesat) 1.FC did not define religion – but a basically it is a belief in supernatural power & bound by its teaching either present life or after life. Art 160 : definition of malay .To proof the right relate to religion. Right to propagate . Right to profess . She is entitled to profess his religions. Art 121A : jurisdiction of Sh.Art 12 (4) 3. to give financial assistance to state . Art 3 : religion of state . even below 18. Art 10 . Government (federal & state) . . as long as she is sound mind. . Depending on respective statutes Re Suzy Teoh . Art 74 (2) : state has power to make law on statements Sch 9 (list 2) . Group of persons (Art 11(3) ) . voluntariness Teoh Eng Huat (her father appeal) . Ct.Association. Parents /Guardian .must establish that it is a religion .Held: She is within the meaning of person. Right to practice Subject to restrictions : Clause (5) by authority – power of parliament on ground of Public order and morality -Rights are not absolute. But subject to restriction: Clause (4) propagation of non-Islamic teachings to Muslims – State law may make restriction to Muslim . NGO. to determine? YES! Mat Yaakub Ismail v Kerajaan Negeri Kelantan Kerajaan Pulau Pinang v Sheikh Zulkafili Soon Sing v PERKIM Kedah. claimed no longer Muslim to allow or not Lina Joy v Majlis Agama Islam Persekutuan .Ct held : parent means plural meanings (parents) – both Father and mother . Right not absolute subject to 11 (5) . To observe. to perform. to exercise.approval of Syariah Court is important 2.Freedom of religion must be subject to clause 4 and 5. Art 12 (4) – supposedly not apply to Art 11 Meaning of parent: Chang Ah Mei v Jabatan Agama Islam Selangor . Right to practice .Since purdah is not mandatory practice of islam subject to restriction b) Meor Atiqurahman 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 .Ct.Whether purdah considered as right to practice in islam . . Whether a person being a Muslim or not is the power of shariah ct. make distinction between Mandatory or non-mandatory practices of islam . Saravanan [2004] Shamala v Dr. A Muslim always be a Muslim. the conversion subject to Syariah Court to approve. to show .refer to Syariah Court Daud bin Mamat v Majlis Agama Islam & Adat Istiadat Melayu Kelantan In case of Muslim . to act.Apostate by out of religion is not amount to religion look at the Kamariah binti Ali v Kerajaan Kelantan religion’s teaching . wearing purdah during office hour (breach of public order) .She is a gov. Jaya Ganesh [2004] CLJ 416 Kevin Tan New Amendment : parents refer to plural (both) Converting religion – changing religion . Restriction can be made by federal apart from state power a) Hajah Halimatul Saadiah .Referring to s11 of interpretation act (general clauses ordinance 1948) Parent defines in Art 160B: Either ibu atau Bapa Neduncheliyan A/L Udiradam v Nor Syafiqah [2005 2 AMR 711] R Subasini Rajasingam v T.Follower of Ayah Pin. officer. manifestation what is inside . Akidah ii. offence of sending or delivering any publications non Islamic religion to a muslim iv. which comprises : i. not shariah ct. Case to support: 1. Syariah iii. decided to pass several state laws restricting non-islamic doctrine : . disciplinary action can be taken 3. Offenses of displaying any matter concerning religion vi. offence of persuading/influencing muslims to convert religion ii. The ct. .brought to COR- decided not to banned – part of religious activities . .Possession of VCD pertaining to Ayah Pin’s teaching . offenses of distributing publications v. to disseminate.State has power to make law on creation of punishment. conducting religious talk without tauliah is an offences. Offenses of tribal before civil court . Melaka.Under law of Terengganu. to preach .Absolute right not mandatory. possession of non-islamic teaching is offence .State gov. offence of approaching a muslim to give any speech or to display any matter of non- islamic religion iii. Malaysian Kini: Comment made by supreme ct. Held: Islam must be put at the higher position .Right to have polygamous marriage . Meaning to spread. Selangor . to extend. Case: Pas be banned by using Islam term in the Party’s name. State law confer the powers to federal authority. Right to propagate .Sect 53 of Shariah criminal enactment 1982 of Negeri Sembilan.Non-Islamic Religion Enactment Terengganu.Condition or consent of superior authority to have second wife . on issue of the dismissal made by school is valid.Interpretation of ‘precepts of islam’ Ct. Harakah daily: UK allows muslim policemen to wear turban c) Zakaria bin Abdul Rahman . Serban –school uniform rules . Art 11(3): right of religious group / institution.Read together with Art 11(4) . Sulaiman Takrib v Kerajaan Negeri Terengganu . to inform. it means teaching of islam itself. decided The word precept not just 5 pillars of Islam. thus make this case triable under magistrate ct. commented: “what relation between serban and Islamic teaching?” .Among offences inside the enactment : i.Ct. restriction can be made. Kedah. followed interpretation made in Sulaiman Takrib . Akhlaq 2. Pulau Pinang. Kelantan. Fathul Bari bin Mat Jahaya (Tauliah) . . offence which pertaining to precepts of islam 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . state legislature also has power to make law . since the term cannot be found under federal list .whether contrary to morality? Something which is contrary to Islam (list 2 of Sch 9) ZI Publications Sdn Bhd & anor v Kerajaan Negeri Selangor & MAIS . Joshua Jamaluddin 1988 2 MLJ . contrary to precepts of islam 3. State has power to make law on ‘precepts of Islam’. Rubbish here and there. akhlaq and syariah. Held: Deviant teaching is an offence. ISA cannot be used for religious freedom because ISA made under Art 149 . Art 11(4) had empower state to have the power and the word precept of religion is extended by court to the meaning of akidah. Ct. .Propagation subjected to clause (4) 5. A muslim in Malaysia subjected to general laws enacted by parliament.Plaintiff was a publisher. even they are well-known religious expert . Gov. state has no power to restrict fundamental matter. Federal ct. He challenged the validity of detention . He is a malay.Propagate religion without tauliah.Criminal Syariah of Selangor declared that the religious publication contrary to Islamic law. .Held: by referring to cases of Sulaiman Takrib and Fathul Bari. Pendakwa Hal Ehwal Agama Terengganu v Abu Bakar Chik . . but also subjected to laws enacted by state legislature.He not satisfied and challenged that according to Art 10. . Because Art 149 can just curb rights under Art 5. Managed to convert some muslims into christianity . Not threat to security ct granted habeas corpus .Road be closed – whether contrary to public order or not Coconut breaking – whether contrary to public health or not. because refer to constitution. conference not considered as propagating his religion . Pendakwa Hal Ehwal Agama Terengganu v Omar Daud 4. or morality Chinese and hindus . public health. converting to christianity . 10 and 13 If this right done by non-muslims? Art 11 (5) – not authorize if involve public order. love and liberties” and he translated it into Malay language.No tauliah to give ceramah . 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . held mere participation in seminar. detained him under ISA . 9. he published a book by Canadian author “Allah. Sabah. It is based on research: Malay live in rural area. Private Educational Institution Act iii. while non-Malay live in urban area and have better education. The role of federal/state authority to establish. etc 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . University and Colleges Act iv. then be able to enter uni. race. There is one provision in Education Act gov. . financial & for the maintenance of the institution. should follow all the gov. Art 153 in FC Art 12(1)(a) . . No discrimination against any citizen on the ground only of religion. Art 12(2) – right to teach and learn religious education. ART 12 : RIGHTS TO EDUCATION Statutes : i. . Art 12(1)(b) - Financial aspect of education. to assist in establishing Islamic institution . place of birth. Education Act ii. Art 3(1) govt can spend money on Islamic institution . to maintain. not much facilities and up to standard 5 only. Gov makes a policy to allocate certain places for certain races(Malay. syllabus. descent. . place of birth in the administration of any educational institution and admission of pupils/students/ the payment of fees. in providing out of the funds of a public aothourity. private sec and public sec Example of private schools (section 73 of Education Act) ABIM PASTI Sekolah Agama PAFA Exception: Art 153(1)(2)(3) (8A) . requirements. Applied to public authority or government founded or control institution. Sarawak) to reserve places for them(quotas) . financial aid from gov. development. If get good result. Nowadays using Meritocracy system: a system following requirement of uni. has duty to provide Islamic education for muslim students who studied at indian or chinese school . Once registered with gov. Every religious group has the right to establish and maintain institutions for the education of children in its own religion . race. - No discrimination against any citizen on the ground of only religion. descent.Applied to both . Case: Re Suzy Teoh 1986 2 MLJ 228 . Minor convert to Islam is not based on compulsion but without parent consent.UPSR & KAFA . . reversed the decision.Held: Islam is part of the syllabus – Part of national curriculum PP v Mohd Noor bin Jaafar (2006 1 AMR 537) .interest of child as she matured and can decided on her own.Power given to PP to charge/not charge . conversion valid.Charge is valid constitutional Art 12 (3) and (4) – when a child is required to do something relating to their religion. Art 12(3) and(4) not applied to this. – not syariah court . Supreme court. but it is based on her volutariness Case: Teoh Eng Huat v Majlis Agama Islam Kelantan (her parent appeal) . they don’t have to do it. Nor Liyana Yasira bt Mohd Nor v Menteri Pelajaran Malaysia/Majlis Peperiksaan Malaysia . of Melaka. unless consented by parents. HC. However. Must get permission of their parent first. it is an offence of maintaining the unregistered school. Non-muslim not required to say ‘amin’. She is not forced to follow islamic teaching. Right to profess religion . The children must get parent’s consent.“gagal” stated in UPSR slip because not attending exam .The parents insisted to delete .Control of Religious School Enactment School must be registered with religious dept. reciting doa.muslim utter “amin”. .If fail to do so. 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 . triable before magistrate ct. no registration made . Appeal. Eg: at school assembly. movable . Human . but not the good will. copyright & design . unless there must be law made by Parliament Property? . gov. but also procedural law.But.Right of hearing must be given to affected person/land owner . To acquire property by the Gov: . need to pay the ‘goodwill’ . Company. can make references to high ct Cross-refer to : Art 149 Empowers parliament to make law to deprive a person’s property Eg : Dangerous Drugs Forfeiture of Property Act let say if a person is found to deal with money for purpose of drugs. intellectual property. decided to take over of Port Klang.The land owner is entitled to present the compensation amount .There must be a substantive law . of Malaysia v Selangor Pilot Association (1978 AC 57) .When gov. Deprivation ii.Before gov. if land owner not satisfied with the evaluation. has power to forfeit Ketua Polis Negara v Gan Bee Huat . rental or insurance Minister of Finance (1992 2 MLJ) . Acquisition by gov. immovable . .Whether gov. 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 . cannot pass a compulsory law without any compensation. there must be a process (principle of natural justice) .Loss of property : i.Gov. there is independent company training pilot . before determining how much amount of compensation. ART 13: RIGHTS TO PROPERTY Art 13(1): no deprivation.Pvy Council held goodwill is not within the meaning of property Law? In Art 160 is not only substantive law.Stolen motorcar is a kind of property Gov.There must to pay compensation . decided to take over the issue is goodwill since the company is already well-known . Both prices are different Pengarah Tanah & Galian v Sri Lempah Sdn.Valid deprivation of property Arumugam Pillai . . thus it is no longer freehold. The land is owned by Gov. v State Commission of Penang . It is under category leasehold If the land belongs to sime darby (before Merdeka day) freehold Right of the Aborigines to Ancestral & Customary Lands Adong bin Kuwau Land is a property even though land not registered in the Sagong Tasi person’s name. there must be a law .The change of title is kind of deprivation or not? Because price is different . Financial Distribution Act ii.Income Tax from business activity . must change the title of land first . the condition made by gov. Goods & Service Tax Act iii. Customs Act iv. requires from the company in order to develop the land.The category of land is freehold .Leasehold subject to consent of state authority.Gov. which located in KL . Art 13(2): Compulsory Acquisition / use of land 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . period 99/60 years . is unconstitutional If gov.Freehold can deal the land with anybody. so when Gov asked Nor Anak Nyawai them to leave.Business tax is higher than income tax . In order to deprive a person’s property.Ct held : gov’s action contrary to Art 13 . land asked the developer to have housing areas must follow policy of gov. period also forever . Income Tax Act If person commits offence under these acts deprivation of property Philip Hoalim Jr. Bhd (1979 1 MLJ) . can by law deprive our property without being or re-being If the deprivation made according to law X compensation If the deprivation made X according to law compensation Example of laws passed by parliament (without compensation): i.Cukai tanah considered as valid tax . they can’t claim it was their property but as they been occupying the land for sometimes. thus they can claim for interest.The company wants to develop the land.Thus. ‘Deprivation’ It does not attract compensation Gov. Road Traffic Act v.If deprivation made not according to law the affected person can claim for damages . the letter is sent to her. Bhd v Land Revenue Wilayah Persekutuan . land owner has no right of hearing . Locality – rural area/urban. can acquire the land S.she did not know and even did not have chance to object Compensation must be given within 2 years before acquisition PTG Negeri Kedah v Amico Development Sdn.The term is changed by gov. . Shape – L shaped. Bid of evaluation vi. . Bhd. Whether land owner entitled to right of hearing or not.The acquisition must be based on market value . Our money that we have 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 . entitle to know . Kulasingam & Anor v Commissioner of Land . Size – big or small land iv.the power to approve any development is under local gov.Compensation must be given within 2 years . Need to use certain part of land more.but coming to the value of P.state authority has power to acquire land for public purposes. but returned back to Dewan Bandaraya . Taiping v Pentadbir Tanah Larut & Matang .land owner is entitled to make objection .Gov. which means over or above the land. Basis of compensation is not based on land.Market price = price as agreed between a willing vendor and purchaser Factors to determine market value? i. before gov. Eg : Telekom. rectangle. because needs to cut off those trees.Hearing must be given to the land owner in order to access the valuation/compensation Goh Seng Peow & Sons Realty Sdn. not been given right of hearing . has power to determine which land or which law . . but based on trees planted there. There must be a provision .The post of land administrator is known as ‘Collector of Land Revenue’ = ‘Pemungut Hasil Tanah’ . . (count per tree) . to ‘Pentadbir Tanah’ . square.Failing within 2 years the acquisition is X valid Guan Seng Company ltd.At this stage. .she owned piece of land . closed to mosque. Land Acquisition Act: Sect 3. Timing of economy vii. to hear case on land value matters - Right of hearing – not applicable. etc v. closed to school iii.Pemungut hasil tanah at state level DTO Datin Azizah Abd Ghani . TNB . Land Acquisition Act – references to high ct. Comparative approach – compare with other/prior transactions ii.pf challenged validity of approval. pay compensation . Bhd.The company belongs to our army . bridge.This considered as deprivation of property . Sin Yee Estate Sdn.Saman ekor/AES/speed trap Leonard Lim v Director of JPJ Negeri Sarawak (2010 7 AMR) . tunnel between the land before give compensation - Termination of contract is not deprivation of property . the contract is terminated already . road.Gov.Because of that.Pf challenged the validity of ‘speedtrap’ because not signed by the vehicle’s owner .Example of leasehold after the period.Can refer to case : Boustead Estate Agency (2007) . should take into account if there is highway.Not subject to compensation Station Hotel v Malayan Railways (1997 1 MLJ) Blacklisted people .Gov. decided to stop collecting the ‘speed trap’ money 5 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . gov. cannot renew road tax. v Pentadbir Tanah Kinta Perak (2004 6 MLJ) Damaged property made by gov. decided to acquire bid land .Because of that. thus cannot used the property . SOP and Federalism. 13) 5. until 1960. . SPECIAL POWERS: ART 149. Act of Parliament recites” . Emergency Power (Art 150) – The strongest status of legislation. ART 149: In order to exercise emergency power to make emergency law. 2.SOSMA 2012 made for 5 years only police have power to detain 28 days .Must refer to preambles “Whereas” 1. they read English Regulation Ordinance. Parliament can make law on it based on those 6 grounds Art 149 (1) (a-f) 3. in order to extend it.“….During British. End of termination of law made under Art 149 (2) Sunset clause certain provisions valid for certain period only. Generally. 151 Art 149: Law made by Parliament to overcome illegal activities Art 150: Emergency Power Art 151: Pertaining to Protection given to a person detained under prevention.. 150. Later. It continued until 2012 and later replaced by SOSMA 2012. unless parliament decide to extend it 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . Ordinary Act (Art 66) – consent must be obtain 2. This law can be inconsistent with four fundamental rights (Art 5. 10. a new resolution in parliament must be made. Parliament must express clearly one or more grounds in making the law 4. named ISA 1960. Parliament must expressly have preamble mentioning emergency. cannot (Art 4) 3. 9. . It can be made by Federal Authorities even though inconsistent with FC. How to determine it is Special Law? . if not it is an ordinary law 3 Types of Law Making Process: 1. Only parliament has power to make law under Art 149. Parliament passed a new law made under Art 149 which provide prevention detention.SOSMA 2012 was valid until 2017. not YDPA. Special Power (Art 149) – can be inconsistent with certain provision of FC. Cannot use ISA SOSMA Art 5 3. Dangerous Drugs Forfeiture Property Act. 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 .Gov.Offence is under Penal Code .Was detained under SOSMA . SOSMA – replacing ISA. POTA 2015 (Prevention of Terrorism Act) (Part 6A) – provide prevention detention on Political Activities.process of arrested force unit offences (Part 6) 2. SOSMA.Ct held SOSMA not cover activities outside Malaysia Gov made new law: 1. Joshua Jamaluddin Osman . 5. - After 5 years. charged under Security Act refer to part 6 & 6A of PC 4. Empowers parliament to make preventive detention but must comply with Art 151 . POCA 1959 (Prevention of Crime Act) – upgrade from ordinary law to Special Law.EPOPCO 1969 by YDPA provide prevention detention but not all of criminal activities – normally decided using this ordinance but now.High ct. Went to Minister. Khairuddin v Matthias . decided to detain under ISA 3. DD (FOP) A – To forfeite property acquired by drug business – who accumulate wealth with compensation. POLICEMAN CAN ARREST UNTIL 60 DAYS. Ketua Polis Negara v Gan Bee Huat . DD(SPM)A 1955 – in 60 days. Mohd Ezam Mohd Nor (2002) .Activities of distant followers confined to his own religion . Minister take up for 2 years. Dangerous Drugs Preventive Measures Act. If arrested under SOSMA. Yazid Syafaat .Forfeiture of property is valid under Art 149 2. POCA.When the detainee being charged in ct. of law he is entitled to bail . Parliament decide to annul Emergency Act. It focus more on criminal activities. Preventive detention 1. Now.Eg : ISA. Tan Sri Raja Khalid .ISA not confined to communist acitivism alone.no more EPOPCO 3. 6. 4. Theresa Lim Chin Chin (1988) . - In December 2011. ALL OF THESE NOT PRESCRIBED ON PUNISHMENT PROCEDURE. no more Emergency Act. the clause becomes sunset.Cannot use ISA more suitable if PC/CPC 2. no more. Grounds to detain a person (look at habeas corpus) 1. POTA . high ct. epidemic.comprehensive definition is in the case of SKN Case: Stephen Kalong Ningkan (1969 2MLJ) . acquitted . etc” . The concept not necessarily limited to actual violence. Gov. but also includes the situation of threatening security or economic life. Act of YDPA is act of Govt (Art 40) so subject to judicial review due to official capacity. . to summon state assembly to have vote of no confidence . But. Because the actual purpose of this proclamation is to empower the gov. or threat of violence. High ct.ART 150 2 types of proclamation emergency: 1. Case: Teh Cheng Poh . Pvy Council referred the definition of emergency from case : Case: Bhagath Singh v King Emperor 1931 “State emergency does not permit of any exact definition.Literally : urgency or situation which wants to have a drastic action . This case justifies the government to use this definition and declare state of emergency 2. Dato’ Mahathir wanted to amend Art 150. Stephen decided to challenge the proclamation of emergency . Proclamation of Emergency if the YDPA is satisfied. Who has power to declare emergency? Art 150 (1) : YDPA On 1984. YDPA proclaim emergency is acting on advice of PM/own discretion/ based on Government parliament. It connotes a state of matters calling for drastic action. for example: War. earthquakes. the power given to federal gov. . The case is up to Privy Council . held that the dismissal is unconstitutional should 2/3 major . or breach of the peace.Art 150 (1) YDPA has power . Whether YDPA act on advice or his personal discretion? 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . It covers very wide situation. Thus. flood. . declared state of emergency Sarawak crisis . Because of this case. Followed by SKN cases whereby YDPA is a sole Judge who has the power to proclaim. to replace ‘YDPA’ with ‘PM’ because Teh Cheng Poh’s decision Pvy council decided that YDPA act on advice of PM. there is amendment to Art 150 and clause 8(OUSTER CLAUSE) not to bring the court to strengthen power of YDPA & Govt. Satisfaction of YDPA cannot be questioned in ct. whether subjected to judicial review/not ? The courts silent about this issue Pvy Council decided in Teh Cheng Poh : [YDPA act on advice of federal gov is subjected to judicial review] Thus. at first YDPA act on advice of gov. Agong can used his power under Art 39 (Indepedently) . but not to decide on major decision or issues. . caretaking of country. be vested on YDPA When YDPA can proclaim emergency? Clause (1) – Proclamation can be made if there is grave emergency which threatens: i. Security ii. is subjected to judicial review. over emergency . eg : emergency Case: PP v Mohd Amin Mohd Razali . Gov. Agong act based on his own discretion if there is no gov. at that time is just known as caretaker gov. Public order iii. of law . and gov. based on Teh Cheng Poh : . when he can act on his personal satisfaction? Depends on situation Eg : Dissolution of parliament during election there is no elected gov. Executive power of federation.YDPA’s power not subjected to judicial review Because. of law from hearing case brought by a person regarding emergency. Economic life iv.At the same time. parliament amend certain provision If YDPA act on advice. thus to avoid judicial review. Etc Examples : 1964 – Confrontation with Indonesia 1966 – Sarawak as result of political crisis 1969 – Racial riot (13 May) 1977 – Political crisis in Kelantan YDPA no need to wait for actual occurrence to proclaim emergency? 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . 3 Stephen Kalong Ningkan power given to YDPA YDPA has personal discretion If YDPA satisfied. absolute power of gov. .Added clause (8) in Art 150 which to oust the ct. Federal ct : what Agong cannot do is to make law primary statute (Ordinance) . Ordinance just like similar to Regulations . Whether Agong has power to make emergency law when parliament already in session . Art 150 empowers parliament to annul emergency (X necessary from opposition. and the law is named as emergency ordinance .Malay Custom . can be also from ruling party) Revoke YDPA Annul parliament There must be an actual sitting in house then YDPA has no power to make law Teh Cheng Poh (1979 1 MLJ) . parliament already in session . Thus.To multiple proclamation . Citizenship . parliament not in sitting until 1971 . Religion . Country at that time before Nov 2011. is on session . Clause (2) there must be an imminent dangers of occurrence of such event Imminent danger is a question of fact Gov.To revoke proclamation of emergency .To revoke the ordinance The power of YDPA = parliament’s power What YDPA cannot do? Art 150 (6A) . ESCAR unconstitutional . Pvy Council : cannot look at label of law.Native custom . Native law . Agong has no power to make law primary or subsidiary when gov. 1975 – Agong made new subsidiary law.To proclaim emergency . New proclamation impliedly revoked earlier proclamation Agong has no power to make law when parliament already in session Art 150 (9): what Agong cannot do is when both the houses of parliament have actual sitting only (when all members respectively assemble) Power of YDPA (Art 150) Agong has power : . he can be charged under ISA. He was tried under special law ESCAR . The power to charge belong to AG whether under security law or other law . 1969 – emergency. Thus. will depend on information from special branch YDPA can declare multiple proclamation of emergency? Clause (2A) empowers YDPA to proclaim new proclamation of emergency Example : Assuming majority of members of parliament decided to annul Thus.To make law. if a person in possession in firearms. Thus. Thus. not necessarily be charged under Firearms Act . Was charged under ISA sect 57 .Islamic law . but look at substance of law . considered as security area because of emergency .Language Parliament/PM 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . Agong can make law subsidiary law regulations . No power to proclaim emergency Parliament’s power Art 150(5) Parliament’s power can make law on subject matter under federal list & state list Read together with clause (6A) restriction, similar like YDPA’s power Procedural requirements can be put aside : - 2/3 majority is not applicable - Consent of conference of rulers is not applicable Case: Eng Keock Cheng v PP - Trial before single charge - During emergency, charged for capital punishment. - YDPA has power to make subsidiary law, namely Criminal Trial Regulation – must be conducted without several juries. - Argued unconstitutional, contrary to Art 8 of FC discrimination. - Held emergency law can be inconsistent with any written law including FC. Federal executive power during emergency is shifted federal gov. If emergency in particular state, federal gov. can appoint federal officer to administer the state Example : the chief executive gov. is appointed director of emergency for Kelantan What the role of parliament in relation to proclamation of emergency & ordinance made by YDPA ? Refer to clause (3) Proclamation & ordinance made by YDPA : - They must be laid (bentang) in both houses - Not subject to affirmative resolution - But, if there is negative distribution, majority of members of both houses can decide to reject/annul the proclamation but, must be tabled first - Parliamentary control over executive power Dato’ Seri Anwar Ibrahim v PP - Instead on sodomy, he was also charged under emergency essential power ordinance for abusing powers - Validity of the ordinance whether the ordinance is still exist, or has been annulled by parliament - However, the ordinance was annulled by table in Dewan rakyat only, not yet be annulled by Dewan Negara - Ct. held the ordinance still exist the charge is constitutional How to end emergency? Art 150 (3) Proclamation can be terminated through two ways : i. Revocation by YDPA ii. Annulment by parliament by both houses. + Judicial Review: YDPA act on advice – Govt decide – considered as official so justifiable. What is status of Emergency Act or Ordinance after end of proclamation,? Clause (7) Period of 6 months from end of emergency Example : 24th Nov 2011 – May 2012 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 Issues regarding emergency : i. Breach of supremacy emergency law can be inconsistent with FC ii. Separation of powers law supposed made by parliament, but during emergency, its executive’s power iii. Breach of concept of federalism parliament supposed to make law on federal matters only, but during emergency can transgress into state matters iv. Breach of fundamental rights can be inconsistent with Articles in FC, including Art 5 v. Emergency law also provides preventive detention detention made not by ct. of law no trial Similarities & differences between Art 149 & 150 Similarities Both Art 149 & 150, must be expressly stated recital in Act pertaining to emergency. Because of one or more grounds under Art 149. If no any grounds then it is ordinary law Both articles have power to provide preventive detention : - POPCA has been substituted with Prevention of Crime Act - POCA (Art 149) focus more on criminal activities Differences Art 149 Differences Art 150 Proclamation not necessary Proclamation Proclamation is necessary unless both houses seat together Only parliament has power Legislative Both YDPA & to make law authority parliament have power Limited to Articles : In consistency Law may be inconsistent, - Art 5 except - Art 9 in 7 matters in clause - Art 10 (6A) - Art 13 Federal matters only Subject Matter federal & state Must be through procedural Procedural Procedural requirements can be requirement – 2/3 majority Requirement dispensed with : - Consent of rulers is not applicable - Simple majority is adequate 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 No breach of separation of SOP Only YDPA has power to breach powers SOP and Federalism Repealed is necessary. In Repealed Valid for 6 months expiration on definite until repeal by proclamation by : Parliament - YDPA or - Parliament (automatic expiration) Art 151 (Preventive Detention) Gives protection, safeguard, right to a person detained under preventive detention. Preventive Detention(PD) Art 151 : Detention made by relevant authority (Parliament, YDPA) under Art 149, and 150 Not subject to judicial trial- Not given fair trial, contrary to justice (no hearing) Cannot be made work binding process- legislative power but since the annulment of emergency and revocation ISA, hardly to find cases under New PD (POCA&POTA) Most of cases dealing with ISA. up to 2 years subjected to renewal/extension special prison Under PD Law, there are 2 stages: 1. Initial arrest/detention - Made by police - Has power to detain/arrest without warrant - Up to 60 days Eg : sec 73 of ISA, without judicial authority. - Can be detained under right protected under Art 5. Eg: if arrested under DDSPMA, the power to detain under Minister. If arrested under POCA/POTA, can be detained by relevant board. Case: Izam Mohd Noor (2002) 4 MLJ 449 (case of changing party) - A politician of UMNO but also a lawyer supporter for Anwar. - Later, form BERSATU under Tan Sri Muhyiddin b Yassin. - Principle: An arrested person, if by police under special law, entitled to the right under Art 5 unless this special law EXPRESSLY EXCLUDE the right. In absent of express, the detaining is entitle to the right, so ISA does not expressly excluded. ISA can provide the exclusion under Art 5 - Held : Entitled to right 2. Starting point PD order, Minister has power to detain 2 years Statute made by Parliament: 1. DD(SPM)A 1985 (Dangerous Drugs (Special Preventive Measures) Act 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 Empowers police to arrest person up to 24 hours .Mentioned in detention order . not more than 8 years) . Ground of detention must be informed ASAP / communicated (Art 151(1)(a)) .Sect 13 of POTA : prevention of termination board (Not less than 5. Dealing with Drug activity.Prevention not more than 5 years Rights made under Art 151 (Right of Detainee) This right applies when PD is served on the suspect detained. Held: when there is Detention order made by Minister. Arrest made under ISA . Those who opposed gov. 2. Held: he can applied for habeus corpus.Refers to PC . Only made by Minister Case: Theresa v Chin Ching . . POTA 2015 : . Sect 60B /16B . Anti-Money Laundering : .Sect 4 : empowers magistrate to detain up to 21 days . 2.Can be withheld by Gov / Minister – if involve national interest such as intelligent. Detained under ISA for 7 years because conducting activity influence racial .accusing the government to enclose Chinese and Tamil school. The ground must be communicated ASAP. if not unlawful detention. delivering speech at Bangunan Peniaga Ikan. Allegations in the case above: 29 June 1980. 1.Sect 7B : consisting of J members . not entitle to this.Sect 2. Not applicable to detention made by Police under initial arrest. Power of police to detain 60 days. However.eg: ISA Case: Pathoo A/L Perumal v MHEAN (1991 1 MLJ) . 2nd Oct 1985.Same procedure with POCA 4. Allegation of facts .Sect 3 : empowers police to arrest without warrant . ‘Operasi Lalang’ 1987 . if there is challenges. Prevention of Crime Act(POCA) 1959 : . the court is entitled to know the allegation of fact which the gov considered as national interest.Must refer to Federal consti : sch 2 3. . Issue: when right under Art 151 apply? . Members of supporters of Anwar Ibrahim were detained by Mahathir (PM) at that time . speech held at Jalan Laksamana and Jalan Ipoh 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 .Sect 19A : prevention of crime board . But can be renew up to 2 years. Ground detention is threatening security of country . If continue detention. BOP is lies on the Minister to disprove illegality of detainee by producing detention order signed by proper authority according to the law . considered as unconstitutional. The court held that they were found guilty. 6 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 . They provoke racism to make Malay go against Chinese. he has right to made representation. . Apply for extension for 3 months . can apply to YDPA for extend the period.Case: Mokhtar v Sim Kim Cheon . Opportunity to make representation to advisory board to avoid detention order. Detained under PD. but advisory board made recommendation to YDPA after 3 months from the date of sending the representation. there is exception: Art 151(3) – authority may refuse to disclose facts if disclosure would be against the national interest. But the pardon board decided to reduce punishment. granted habeas corpus . .As a detainee. . . No need to have a new ground Ground that can be challenged by detainee 1) Substantive ground a) Non-existence (no ground of detention) Case: Re Tan Sri Raja Khalid.Once the representation submitted. But. it is unlawful detention Case : Rajoo Ramathamiy . . Extension of first detention made by minister is on the same ground . Held. the board must made recommendation to YDPA within 3 months after receiving the report made by detainee. granted habeas corpus Can or cannot PD be renew? 2 years renewal/ extension can be made by authority Case: Gucharan Singh A/L Bachita Singh (2002) 4 AMR . Rajoo: Just to prove unlawful detention. Case: Re Tan Boon Lian 1977 MLJ . . After Tan Boon Lian case. Ct. then Parliament amended Art 151 providing new provision for extension. Ct. Detention is not valid as advisory board applied for extension for 3 months period is over. Failure to do so. 3.has 2 persons & 1 chairman having legal qualified not less than 10 years which all were appointed by YDPA. but the application of extension must be made before the lapse of 3 month. . (Art 151(2)) .If not enough. . .This right given to citizens only (Art 151(1)(b)) . At appeal. court reverse the judgements. . granted Habeus Corpus. Case: Jamaludin Othman . . . . but principles remains. The gov thought it was because of Tan Sri Raja Khalid. .Bad motive Case: Abdul Ghani Harun v Ketua Polis Negara (2007) 2 MLJ . If only one copies. . Held: Economic ground cannot be used for ISA. . He challenged.Must within 3 month Case: Re Tan Boon Lian 1977 MLJ Case: Rajoo Ramathamiy 2 copies must be given to. The bank suffer huge loss. Principles: Deliberating denying his right to detain him up to 30 days. Held: religious activity cannot be used for ISA b) Mala fide. 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 0 . 2) Procedural Ground. The police officers need about 30 days to detain the appellant. to give the appellant under police custody.no dividend. Held. thus arrested him under ISA. This is premature statement.the soldier angry. this is known as Procedural Ultra Vires. . FC provides various means of amendment. Art 38(2)(c). If easy. Should not be amended easily nor difficult. Need to increase number of Parliament. . Art 153. have chances to deprive Citizen Right . Part 3.Related to Malay Rulers. cannot follow. It should be balanced. Art 159 (1): can be amended by Parliament alone or subject to COR and Governor of S/S How to amend? 1. FORMAL WAY: Had permanent effect a) Art 159(3) : 2/3 majority . Art 159 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 1 .Following the total number of majority. (most difficult) . If difficult. It should be certain amount of flexibility to allow constitution to change any provision. . Art 38 (4) Art 63(4) and Art 72(4). to make new articles. to add. Law: Written law . the Constitutional (Amendment) Act This FC is supreme. .eg: Art 10(4). special privileges of Malay& Rulers.constitution should be permanent. Meaning: Art 159 (6): Addition: to construe. Actual: changing for betterment. Repeal: with addition or no addition.Parliament alone has power to amend Constitution b) Art 159 (5): 2/3 Majority + Conference of Ruler is necessary before can be amended. It must be read in harmonious construction. Art 70. but there is no permanent in something. Art 159 (Constitutional Amendment) . Art 71(1). Art 50. what is the status of Amendment? Case: Loh Kwai Cheong . only need member who present and voting.Related to special matter of citizenship. INFORMAL WAY – had temporary effect . Case: Mohd Hilman . He found guilty Indirect Role of States for Constitutional Amendment: 1. Challenged the validity of the law . 149 . Through judicial interpretation. d) Art 159 (4) – simple majority (exception) . Under Art 150. religion in Sabah & Sarawak. By State Legislative Assembly (Art 2(b)) – New FT as the gov maybe has no more land. Amend consti without the consent of State Ruler . Laid down 5 methods: 1) Supremacy 2) Republic in contrast to US monarchy 3) Federal character (Art 73. Held: nothing said need consent of State Ruler.Judicial of appointment act.amendment to matter protected under FC . Accused attended political speech . Case: Robert Linggi.Case: Phang Chin Hock . Issue: whether certain provision of constitution can be amended? . Amendment is valid. Governer of S/S: . Held: Law is unreasonable and irrational. but later need to surrender to Putrajaya. Amendment to art 1 and 2 .Direct involvement of Head of State (Art 161 E) 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 2 . Held: court decided not follow c) Art 161 E : 2/3 majority + Consent of Governer of S/S . 2. Arrested and challenged the validity of Sec 50 of AUKU . but cannot be question. 2. State has not been consulted .74) 4) Separation of power 5) Secularism against Art 3 . Eg: Putrajaya is part of Selangor. Accused underwent special trial under ESCAR . Sixth and seventh Schedule Case: Kelantan v Gov of Malaysia . consent of Ruler should be obtained. Subject to Art 182. Then can be considered as valid. 183 2) Substantive Limitation . Held: rejecting the contention stated no explicit provision required the consent. Subjected to other institutions.26/70. . Conference of Rulers (Art 38) – schedule 5 . . no time limit.Consultation or appointment of Ruler . ( more than 1/3) . .need royal assent.representing various group & territories. State Senator (Art 45) . Prior to 1983-1984. – Art 181 amended – immunities of Ruler were abolished. . there are 2 issues: Case: Ismail Robert Linggi . .One state.Need consents from COR eg: a) Art 159 (5) – discretion of MR b) Art 71 (1) – Right of State Rule c) Art 10 (4) d) Art 72(4) e) Art 2(b) Limitation to Amendment 1) Procedural Limitation .Find in mode of way. Court laid down 3 basic consepts: 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 3 . Case: Loh Koh Chuon .1994’s crisis.Art 66 is repealed again by inserting clause (4A) which YDPA given 30 days to royal assent and after that bill automatic become law.Whether the constitution cannot be amended at all? By virtue of Art 159. MR only collective bodies 3.But in certain provisions.comprising of 9 Rulers . . Consent of Gov also necessary Case: Sugumar Balakrishnan . Case: Kelantan v Gov of Malaya. .Something touching on National Policy can be discussed on COR.Pertaining to consent of ruler.1983 crisis – Gov & MR – proposal by PM. 2 Senators .Matters affecting disunity of MR. Urgued on the the fundamental change from Malaya to Malaysia. to amend Art 66 . can. Cannot pick and choose. This amendment limit to certain period – up to 30 days only .Many function (a-e) depend on functions.Can play the role 4. cannot be amended by Parliament alone. it was still illegal and ultra vires Art 155. . 1) Fundamental liberties 2) Distribution of power 3) Separation of power between various organ Case: Faridah Begum Abdullah . Held: even if the right for foreigner to sue. Art 155 forbid or not Parliament from enacting law to permit a foreigner to sue a Malaysian Ruler. UNLESS a similar right given to Malaysian 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 4 . He was found liable even want to use his parliamentary privileges as an MB 2.Art 5 (5) & Art 10 . Constitutional right will be given : Citizenship provision cannot be violated by Art 150 (6A) during emergency Must have consent of parliament to amend – Art 159 (5) + Part 2 Questioning the provision is a crime – Art 10 (4) Case: Mark Koding .Art 9 : no banishment against citizen when born at Kedah o In terms of employment? No need to have permit o Constitutional rights Rights given to citizens only 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 5 . Originally not natives Why Part III is so important? 1.citizen cannot.can be citizen of country after fulfilling certain condition. employment.Concept of significance of being citizen . Naturalize person. and to exercise rights (constitutional rights) Citizenship – the status of person being citizens including their rights and duties towards gov. Right given to citizen only – non. tuition fees) International Law o Travel abroad must be with passport o Protection from extradition o In terms of municipal law (local law) No banishment No exclusion Need to prove that we are Malaysian so that cannot be banished Ahmad Thaiyub bin Abd Rashid Kum Aik v PP . CITIZENSHIP Part III (Art 14-31) Can refer to another provision: Schedule 1 & 2 : very important.The rights of citizens cannot be given to non-citizens .loyalties to a country and entitled to protection from gov.whether we are one of the 4 types of citizenship Art 40 Citizenship Rule s 1964 National Registration Act 1959 Immigration Act 1959/63 Passport Act 1966 Definition of Citizenship Citizen – native or naturalized person belong to particular countries . Eg: right of Art 10(passport.Differences between citizens & not citizens . Age 6. deprived of her citizenship . father (Malaysia) .Factors of acquisition & termination of citizenship 1. Sch 2 (Part II) Part I – For those who were born before 1963 Part II – For those who were born on/after 1963 Part III – supplementary Children born in federation: Citizenship by operation of law Automatic citizenship Because mother/father are permanent resident Children born outside federation: Father only citizen of Malaysia. Child born in (Canada).The child is citizen by operation of law Birth must be registered within 1 year Matter of eligibility. Ct. Gov. She challenged on ct. Marriage 5. Good character Acquisition of citizenship Art 14 + Sch 2 (Part II & Part III) Art 15 Art 16 Art 17 4 Types of Citizenship 1. granted citizenship Case: Ramanojom . Birth inside & outside. Loyalties 9. right Case: Jennifer Theresa Rubys . Gender 8. father (Malaysia) 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 6 . mother (india). Jus sanguinis : blood relationship 2. on Malaysia day or not Malaysia day 4. The child (India). to the validity . Jus Soli : born in that country (mother or father) : land matters 3. Residence 7. OPERATION BY LAW (Art 14) . Gov can refuse . Wife can apply to be Malaysian if fulfill condition under Art 48 – Permanent Resident not less than 2 years. Art 16 Child born in Malaya Living not less than 7 years . they can apply for judicial review. child (India) . . If gov reject. BY NATURALISATION . distinguished between substantive requirement [father’s citizenship] & procedural requirement [registration] . Child born in Perak . Requirements more strict: 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 7 . granted ‘special power’ in Art 15A . Father (Malaysia). Husband (citizen) . Ct. Art 16A Citizenship of child in Sabah Born on 1963 Not less than 12 years living 3.special power given to grant citizenship Case: Lee Chin Poon 2010 . Art 15A : – to insert new clause – more on adopted child . Ct. . granted citizenship Case: Kalwant Kaur A/P Ratansingh 1993 2 CLJ . Art 15(2). Father (British. Thus. Child whom doesn’t know his parents. Ct. . Art 15(1): Wife ( foreigner). granted citizenship by operation of law Case: Hajar Mohideen v MK Abdul Rahman 2002 . whether he is citizen or not . not entitlement . below 21. not Malaysia permanent resident) . Not registered within one year . ct. A matter of elligibity. Ct. granted citizenship 2. . to make him as a citizen (deduantium mendeamours) Case: Minal w/o Mumannialy . This type of registration needs to be applied to force gov. BY REGISTRATION (Art 15-16) . he can apply special passport. BY INCOOPERATION OF NEW TERRITORY . etc Within 5 years from the date of acquisition Abroad residents 4. studied there.Father (China). Exercised exclusive rights or available for the citizens of that country iii. he has enjoying exclusive rights of that country (second ground was applicable) Lee Thian Hock . 5 years if late.Lee from Penang. checked his origin citizenship . Sabah royalties. held BOCP is not exclusive right. 1.Art 24 . Registration ii. No double citizenship – (Malaysia does not recognize this system) Apply to all types of citizenship 2. namely BOCP (British Overseas Citizens Passport) . adequate malay language. Art 29 (commonwealth citizenship) iv. before 1963.When he came back to Malaysia.Ct. Deprivation 1. born there on 1955 .Law of UK those who born in SS. Suggestion to parliament . Acquisition of foreign citizenship ii. Art 24 : Grounds for depriving citizens (from gov) i. he had been staying there for long period. thus the decision is unconstitutional 3.Ct. Parliament will make consideration to it Termination of citizenship i. Wife obtained citizenship of that husband if they get married . . the citizenship will be deprived 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 8 . Already or is about to become citizens of other country ii. he was deprived by gov. Minimum residence is 12 years 2. gov.When he came to Malaysia.Art 16 Mark Sik Kwong . Naturalization Eg : Sulu conflicts.Ct. agreed with the gov. Art 23 : Renounciation Initiative from the citizens Age 21 and above He can do this : i. Renounciation (voluntary termination) ii.Whether BOCP is considered as enjoying exclusive rights? . . Good character. Art 25 : Deprivation is applicable to two types of citizenship : i. deprived of his citizenship . etc Story of Princess Diyana 4. If not constitutional gov.If it involves confidential matters eg : go outside to pursue study (gov.There must be a ground . 26 . Fraud deprivation Procedure of deprivation (Art 27): Gov. shall have considered the request.Gov. FREE TO ADD ON BY YOURSELF. is considered as making error . has discretion to deprive citizenship : i.Written notice must be given to affected person .They will send report to make recommendation then will decide .Once receive motive.Notice must have ground : Lim Lian Geock .Deprivation should not leave to stateless citizen ii.The committee shall discuss with the representatives .Ct. held that those grounds are from Article 24. granted ‘cer tertiori’ (to set aside the decision made by gov) Read ! Tun Suffian’s book.Any matters will be referred to this committee . SORRY IF THERE IS ANY MISTAKE. doesn’t deprive) Som Kok Leong v Minister .These process are the process of right of natural justice .Ouster clause which exclude ct.Ct. 25. but then gov. Procedural safeguard . “an introduction to Malaysian Constitution” CONSTITUTIONAL INTERPRETATION IS NOT INCLUDED IN THIS NOTES.Must be stated in constitution . 7 SITI MUTMAINNAH & IKHWANZAIN (MYLIG) 9 .We can request to have an enquiry committee to be set up . . the affected person has right to refer to enquiry committee . the clause is effective and operative . of law from interfering decision made by the gov. Substantive safeguard . is not bound to follow recommendation made by committee Lew Shi Lai .If the ouster clause following the grounds in constitution.