12 fundamental liberties 6 10 (8)

FUNDAMENTAL LIBERTIES

ARTICLES 6 – 9

OF

THE FEDERAL CONSTITUTION

Articles 6 – 9 of the FC

• Art 6 – slavery & forced labour prohibited

• Art 7 – protection against retrospective criminal laws & repeated trials

• Art 8 – equality • Art 9 – prohibition of banishment &

freedom of movement

Article 6: Abolition of Slavery & Forced Labour

• History• Slavery was known to the ancient civilisation of China,

India and the Middle East.• In Greece, Rome, the European colonies & the United

States (until 1985) slavery was the dominant form of labour.

• In 19th century, America, a movement against slavery developed but massive contradiction remained. Finally civil rights legislation of 1957, 1960, 1964 & 1965 put issues of racial equality beyond all legal doubt.


• Slavery: • Art 6(1) of the FC ordains that ‘no person shall

be held in slavery’.• The word ‘slavery’is not defined under the FC.• An absolute prohibition which applies to public

& private sectors.• It forbids Parliament & the executives from

creating any measure that may amount to slavery.


• Forced Labour: • Art 6(2) of the FC prohibits all forms of ‘forced labour’

especially involving working force.• This prohibition is subject to 3 qualifications:• a. Parliament may by law provide for compulsory

service for national purposes: Art 6(2) including compulsory military service & a Rukun Tetangga scheme. Prohibits forced labour merely for the purposes of statutory body/local authority. Example: Universities disallow to impose community service orders to their students in lieu of disciplinary punishments.


• Forced Labour: • This prohibition is subject to 3 qualifications:• b. work incidental to serving of judicial

sentence of imprisonment shall not taken to be forced labour: Art 6(3). FC only permits work ‘as a consequence of a conviction/ finding of guilt in a court of law’ which refers to work incidental to a sentence of penal servitude. Prisoners must give their consent & must receive payment for any work done.


• Forced Labour: • This prohibition is subject to 3 qualifications:• c. Art 6(4) permits the transfer of employment

of workers from the first public authority to the second authority. The 2nd authority is substituted for the 1st authority in the contract of employment. An example from UPM transferred to UiTM. This type of ‘secondment’ is not available to in the private sector or between public & private entity.

Article 7: Protection Against Backdated Criminal Laws

• Section 19 of the Interpretation Act provides the legislation commences according to the date provided in the law or where no date provided, the day following the gazetting of the law.

• Most laws are prospective in their application.• Many legal system forbids retrospective legislation

except in some circumstances including times of war or crises, marriages, legitimacy of children, to confer status or to validate illegal contracts. Sales tax statutes & procedural rules are often backdated to cover pending cases.


• Art 7(1) does not put a total ban on retrospective legislation but in the interest of a fair criminal process it provides 2 safeguards:

• a. a law creating a new penal offence cannot have effect back in time.

• b. if the penalty for a criminal offence is enhanced, the law increasing the penalty cannot be applied retrospectively.


• Creating new offences• Art 7(1) provides that ‘no person shall be

punished for an act or omission which was not punishable by law when it was done or made’.

• A substantive criminal statute must always be prospective in operation.

• In criminal proceedings the law applicable to the charge must be the law existing at the time of the trial or verdict.


• Increasing the penalty: the 2nd limb of Art 7(1) provides that ‘no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed’.

• If penalty for a criminal offence is enhanced, the amending law imposing the greater punishment cannot be applied retrospectively.

• Unclear when a fine is substituted with a ‘community service order’.


• Increasing the penalty: Mohamed Ismail [1984]• a. the defendant was charged for drug trafficking • b. the offence was punishable with life imprisonment

or death under section 39(1) of the Dangerous Drugs Act 1983.

• c. Trial pending, the law was amended to provide for a mandatory death penalty.

• d. Court held that the amendment could not apply to the Df’s case as it was enacted after the offence has been committed.


• Permissible exceptions:• a. the word ‘punishment’ refers to criminal sanctions &

not civil penalties: Loh Kooi Choon [1977] • b. amendments to the FC are of civil nature & can be

legislated retrospectively & some have been backdated to Merdeka Day.

• c. penal laws of a purely procedural nature can be backdated. The court upheld a retrospective amendment that converted a trial by jury to trial by judge alone: Lim Sing Hiaw [1965]


• Permissible exceptions:• d. Reducing the scope of judicial review of a preventive

detention order by retrospective legislation does not violate Art 7(1): Musa [1970].

• e. criminal laws decreasing the penalty for an offence/ abolishing an offence can be backdated.

• Art 7(1) can be suspended/ departed from by emergency legislation like the Emergency Essential Power Act 1979.

• Protection against ex post facto law is subject to many qualifications that one is left wondering whether the exceptions are more important than the rule itself.

Article 7: Protection Against Double Jeopardy

• Art 7(2) provides that ‘a person who has been acquitted or convicted of an offence shall not be tried again for the same offence…’

• Immunity for repeated trials for the same offence.• Common law principle established in the case of R v

Miles [1980] & pleas of autrefois acquit (the accused had already been acquitted of the offence) & autrefois convict (the accused had already been convicted of the offence)

• Also based on the Latin maxim Nemo debet bis vexari (a man must not be put twice in peril for the same offence).

• Section 303 of the CPC contains similar rule


• Exceptions to the Rule• a. Discharge – discontinuation of trial for a variety of

reasons including court’s lack of jurisdiction & the absence of witnesses & also the charges are badly framed: Uthaykumar [2003].A discharge does not release the accused from suspicion. A verdict of acquittal is a complete defence against future similar charges on the same set of facts.

• b. Quashing of earlier trial – does not apply if the previous trial was quashed & a re-trial ordered as provided under Art 7(2) & affirmed in Sau Soo Kim [1975] & Fan Yew Teng [1975].

Article 7: Protection Against Double Jeopardy • Exceptions to the Rule• c. Different offence – if in the following trial, the

accused is tried for different offence on the same set of facts, there is no violation of the FC if the accused cd not have been charged with/convicted of that different offence in the court which convicted him first. Jamali [1986] & Nadarajan [1994]. Difficult to reconcile with section 30(2)(i) of the CPC.

• d.Technical errors – if the detention order was wrongly made out/if the law authorising detention did not apply to detainee, the detainee may be released. Re Datuk James Wong [1976]detained in West M’sia under a law that applied only in Sarawak.


• Exceptions to the Rule• e. Appeal – if a person is acquitted & the

Prosecutor files an appeal under section 5 of the Court of Judicature (Amendment) Act 1976, no double jeopardy.

• f. Preventive detention – in Musa [1970] if the detainee was previously under administrative detention under the ISA, there is no bar to a subsequent criminal law trial on the same set of facts. Saravanan [2005].


• Exceptions to the Rule• g. Disciplinary proceedings – a non criminal proceeding

& not a criminal court forum. Mohamed Yusoff Samadi [1975].

• h. Multiplicity of proceedings – trial in one court on charges also pending in another court. Only after a person has been acquitted or convicted: Teh Cheng Poh [1979].

• i. Civil proceedings – imposition of a criminal penalty is no bar to a civil action.

• g. Re-trial – Appellate criminal courts have power to order a new trial. Munusamy [1967] & Khai Chin [1979].

Article 8: Equality Before the Law

• Article 8(1) declares that ‘all persons are equal before the law & entitled to the equal protection of the law.”

• Ideal & generic concept including the aspects of equal treatment, equal protection & prohibition against discrimination as follow:

• a. Absence of privileges – mandates equal subjection of all classes to ordinary law of the land & should be treated alike.


• b. Equal punishment – should be imposed on persons accused of like offences regardless of their status. Tengku Mahmood Iskandar [1973] equal punishment imposed on an offence committed by a Prince of a royal house.

• c. No arbitrariness – applies to both legislative power & administrative discretion. Tan Tek Seng [1996].

• d. Procedural fairness – Hong Leong [1996] court held the equality clause of the FC can be used to require public administrators to observe the duty of procedural fairness towards all citizen. Tan Tek Seng [1996].


• e. Proportionality – penalties must be proportionate & not harsh & oppressive.

• f. Legal aid – some common countries like the US & India, require legal aid for all unrepresented accused in criminal cases.

• g. Tenders – In India, government’s tender exercises subjected to judicial ruling that an arbitrary/ unprincipled preference for one application over another offends the duty to treat everyone equally.


• h. Electoral laws – the rule of ‘one person, one vote’ rests on the principle that every person is to count for one & no one is to count for more. In the US, requires all electoral constitutencies be approximately equal in population size.

• i. Titles – In India & the US, the State does not confer any titles or special ranks on its citizen.


• Non Discrimination in light of Art 8(2) that provides ‘there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender’ in the following areas:

• in any law• in the appointment of any office or employment under

a public authority• in the administration of any law relating to the

acquisition, holding or disposition of property, or• in the establishing of any trade, business, profession,

vocation or employment


• Non Discrimination in light of Art 8(3) & (4) where it is forbidden to discriminate against anyone on the ground that he is a subject of the Ruler of any state or because he is resident or is carrying on business outside the jurisdiction of a public authority

• Non Discrimination under Art 136 that requires all federal employees of whatever race to be treated impartially. Conflict with Art 153, special privileges for Malays. Tun Suffian suggested that at entry point, reservations & quotas are permissible under the ‘affirmative action’ provisions of the FC. However, once in service, all public servants of whatever race should be treated impartially.

Article 8: Equality Before the Law• Non Discrimination in light of Art 12(1) confers equal

rights in respect of education. No discrimination on grounds only of religion, race, descent, place of birth or gender in the administration of public educational institutions.

• Non Discrimination under Art 12(2) that provides every religious group has the right to establish & maintain institutions for the education of children in its own religion. No law regulating such institutions shall discriminate on ground of religion.

Article 8: Equality Before the Law• Other grounds of discrimination:• All discrimination is unconstitutional except in 2

circumstances – a. if it is explicitly permitted by a clause of the FC & b. if the courts have adjudged the differentiation to be based on a ‘reasonable classification’.

• Prohibited grounds – example in Datuk Haji Harun [1976], section 418A of the CPC, which allows the A-G to transfer criminal cases from the subordinate to the superior courts, was held by the High Court to violate the equal treatment clause of Art 8 & Menon [1990] where differential rates of pensions for those residing locally or abroad were challenged even though ‘seniority’ & ‘residence’ are not forbidden grounds.


• Constitutionally Permissible Exceptions• a. Personal Law under Art 8(5). FC do not outlaw the

existence of separate personal laws for various communities. With that, freedom of religion guaranteed by Art 11.

• b. Judges transfer cases from one court to another under Art 145 (3A). Art 145 (3) gives the A-G wide discretion power to institute, conduct or discontinue any criminal proceeding. Datuk Haji Harun [1977]. The A-G prosecutorial discretion has been challenged in the courts on numerous occasions but never with success. Art 145(3) seems to have eclipsed Art 8.


• Constitutionally Permissible Exceptions• c. Prohibited grounds under Art 8(2). The article

forbids discrimination on account solely of religion, race, sex, descent or place of birth except for other additional grounds. An example, Rukun Tetangga law for public safety exempts women from night patrols.

• d. Privileges & immunities especially confer to the Malay & natives of Sabah & Sarawak to create a level playing field known as protective discrimination.

Article 8: Equality Before the Law• Constitutionally Permissible Exceptions• e. Official religion based on a crucial pre-Merdeka

promise compromise between the Malays & the non-Malays that the religion of Islam would be given special position in the FC as under Art 3(1) with State supports under Art 11(4).

• f. Gender bias against women in citizenship laws, personal laws & the laws relating to the natives of Sabah & Sarawak.

• g. Private sector. In Beatrice [2005], private sector is not bound by the constitutional rules for equal treatment where she was terminated because she became pregnant & did not resign as was required by the collective agreement. Art 8 does not include collective agreement.

Article 9:Freedom of Movement & Protection Against Banishment

• Article 9 provides 3 separate but related rights on all citizens:

• a. Protection against banishment• b. Freedom of Movement• c. Right to reside in any part of the

Federation


• a. Protection against banishment• Article 9(1) of the FC proclaims that ‘no citizen shall be

banished or excluded from the Federation’.• Right of people to live, to work & to pursue their

dreams in the land of their birth.• Nationality? The burden is on the applicant’s shoulder

to prove that he belongs to a citizenship category, citizens of which cannot be banished or that the order of deprivation of citizenship was in some substantive/procedural way illegally made: Re Soon Chi Hiang [1969] & Re Hoon Tye Wan [1964].


• Deprivation of Citizenship• A citizen’s protection against banishment must be read

in the light of the government’s power to terminate the citizenship of its nationals. However, there are 5 exceptional circumstances which citizenship can be withdrawn as follows:

• i. acquired the nationality of another country whether by registration, naturalisation or other voluntary & formal act. Art 24 allows the M’sian citizenship to be withdrawn.

• (In M’sia, by registration must have an elementary knowledge of the Malays language. By naturalisation must have an adequate knowledge of the Malay language & have resided in M’sia for 10 years)


• Deprivation of Citizenship• ii. doing an act prohibited under Art 25 when he/she is a

M’sian citizen by registration or naturalisation like communicating with an enemy in times of war. Excluding those who are citizens by operation of law under Art 14(1)(a) & Part I of the 2nd Schedule.

• iii. Fraud/ False representation when certificates were obtained to be a M’sian citizen by registration /naturalisation under Art 26(1).

• iv. A marriage to a Malaysian dissolves within 2 years, the woman’s citizenship may be withdrawn under Art 26(2).

• v. Children below 21 may be deprived of their citizenship if the citizenship of a parent is withdrawn or renounced: Art 26A.


• Deprivation of citizenship decisions by the courts are made non-reviewable by virtue of Section 2 of Part III of the 2nd Schedule. Some judges interpret literally & refuse judicial review: Liew Shin Lai [1970] & other keep the judicial door open to certiorari: Soon Kok Leong [1968]. certiorari= a general remedy to bring decisions of an inferior court/ tribunal court before the superior court for review.

• Art 23(1) allows any citizen above 21 to renounce his/her citizenship & the effect is that Art 9(1) ceases to have any applicability.


• b. Freedom of Movement• Article 9(2) states that every citizen has the right to

move freely throughout the federation.• Justice Azlan Shah stated that the article was meant

‘to remove all internal barriers in the country and to make it as a whole the dwelling place of all citizens’: Assa Singh [1969].

• Application within territories of M’sia: Loh Wai Kong [1979] denied right to leave the country.

• Assa Singh attempted to bring the right to travel abroad under the protection of personal liberty in Art 5 but also failed.


• c. Right of Residence• Article 9(2) confers a right on all citizens to reside in

any part of the Federation. • The right to choose one’s place of residence is

strengthened by Art 8(4) which forbids public sector discrimination on the grounds of residence.

• Limitations• Limitations provided under Arts 9(2), 9(3), 4(2)(a),

149 & 150.• i. Parliament power to regulate these rights on the

grounds of security, public order, public health or punishment of offenders under Art 9(2).


• c. Right of Residence• Limitations• ii. Parliament power to enact immigration laws to

impose restrictions on the rights of West Malaysians to move to or reside in Sabah & Sarawak under Art 9(3).

• Parliament exercise this power by adding a Part VII to the Immigration Act 1959/1963 on Special Provisions for East M’sia. Sabah & Sarawak’s exclusive control on immigration is further strengthened by Article 161E(4).


• c. Right of Residence• Limitations• ii. Parliament power to enact immigration laws.• Sugumar [1998] entry permit of a West M’sian

lawyer was withdrawn & he was ordered to leave Sabah within 7 days. On appeal, the CoA, held that the executive decision was ultra vires in that it lacked fairness & proportionality. This decision was overturned by the Federal Corut in Sugumar [2002], the court was reluctant to adopt the doctrine of substantive fairness.


• c. Right of Residence• Limitations• iii. Permissible grounds under Art 4(2)(a) to impose

restrictions on the rights under Art 9(2). Art 4(2)(a) relates to freedom of movement.

• iv. Articles 149 & 150 dealing with subversion & emergency allows the Parliament to regulate freedom of movement & residence. Assa Singh challenged the constitutional validity of the Restricted Residence Enactment (an example:order to require a citizen to reside in a designated place) but the court decided that the law was valid measure to promote public order & security.

12 fundamental liberties 6 10 (8)

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