Table of Contents

TOPIC 2: POLICE POWERS 2

Briefly explain the general powers of the police force in Malaysia. 2
IS: whether violated PA1967 – arrive late to crime scene 4
IS: whether lawful to stop and search car – no and yes depends on circumstance 7
IS: whether lawful – yes based on reasonable ground 8
Assembly based on PAA - Essay 10
EXTRA CASES 12
Comparison of Police Act and PAA 14
(EXTRA) IS: whether can hold assembly according to PA/PAA 16
IS: whether negligent in conducting duties – yes – arrive late to crime scene 19
IS: whether committed desertion of duties 21
DIF ISSUE – s86(3) – disciplinary authority 22
ILAC: whether can host assembly according to PAA 23
IS: change in venue – whether can still host assembly 28
IS: whether can arrest – yes – unlawful assembly 29
IS: whether arrest supporters is lawful 30
Prob Question – PAA – unlawful arrests 30
IS: whether assembly is unlawful – naur 31
IS: whether police can disperse according to PAA 32
IS: whether arrest by force is constitutional 32

CHAPTER 3 – FUNDAMENTAL LIBERTIES 33

Critically evaluate the phrase ‘save in accordance with law’ under Article 5 of the Federal
Constitution. 33
Explain Article 5(2) of the Federal Constitution. 37
Explain Article 5(3) and Article 5(4) of the Federal Constitution. 38
Article 5(1-4) 42
Compare Article 5 of FC to ECHR 46
Essay – article 7 48
PROB QUES – retrospective law 53
IS: whether protected from retrospective laws 53
IS: whether protected under nemo concept – not tried twice for same offence 55

CHAP 4 – ART 8,9,10 55

Essay – Article 8 56
Explain Article 9 of the Federal Constitution. 61
Explain Article 10(1)(a) and Article 10(2)(a) of the Federal Constitution. 63
Explain Article 10(1)(b) and Article 10(2)(b) of the Federal Constitution. 66
Art 10(1)(c), (2)(c) of Federal Constitution (Association) 68
 PROB QUESTION – freedom of speech and assembly – party hopping 69
IS: reject license – freedom of expression 69
IS: illegal assembly – children and prohibited place 71
IS: anti-hopping law is unconstitutional 72
IS: whether Adli has committed a seditious act and contempt of court by criticising judges 73
PROB QUESTION – upload picture violate freedom of speech 75
IS: whether pic upload violate article 10 75

CHAPTER 5 – ARTS 11,12,13 76

Article 11 Essay 77
Essay – Article 12 85
Essay – Article 13 86
IS: whether have discretion to sentence death after DDA amendment 89
IS: whether bound to sentence to death 90

CHAP 6-9 ART 149 91

Article 149 – Essay 92
SOSMA Application - Essay 96
CHAP 6-9 ART 150 100
Explain Art 150(1) of the Federal Constitution 102
Article 150 – Essay 108
Article 150&149 tgt essay 111
PROB QUESTION – proclamation of emergency 116
IS: whether proclamation of emergency is lawful 116
IS: whether YDPA can refuse PMs advice 117
IS: whether refusal of YDPA is subject to judicial review 118

TOPIC 2: POLICE POWERS

Briefly explain the general powers of the police force in Malaysia.

The primary function of the police force is to ensure that people follow the law. In order to do
so, police officers have been conferred with powers under the Act. One of the
powers conferred on the police officers is general powers

According to the Merriam-Webster Dictionary, police force refers to a body of trained officers
entrusted by a government with maintenance of public peace and order, enforcement of laws, and
prevention and detection of crime. The Royal Malaysia Police is the main agency that maintains
law and order in Malaysia. It is comprised of all persons appointed under the Police Act 1967 as
well as those appointed under Royal Malaysia Police Act 1963 with corresponding ranks and
capacities. Section 3(1) of Police Act 1967 provides that anyone who is the member of Royal
Malaysia established under the Royal Malaysia Police Act 1963 shall become the members of
Royal Malaysia Police under Police Act 1967 with corresponding ranks and capacities.
Enshrined in section 3(3) of Police Act 1967, it is a centralised organization with responsibilities
ranging from traffic control to collection of security intelligence. The duties of police are
covered under Part VII of Police Act 1967, which can be divided into general and specific
powers.

A police officer must carry out the duties as well as obeying all lawful orders from his
superior officers. Section 19 of Police Act 1967 provides that every police officer is always on
duty when required to perform the duties. In fact, the essential duty of a police officer is listed
down in section 20 of Police Act 1967. Section 20(1) of Police Act 1967 states that all police
officers shall perform the duties imposed by law and obey all lawful directions received form his
superior officers. They shall obey the orders and directions of any police officer to whom they
are directly subordinate who deems it expedient to do so, as provided under Section 20(2) of
Police Act 1967. If superior finds out subordinates are unavailable to perform certain duty, the
superior must perform such duty by himself. Hence, the direct superior must attend if necessary.
The duties of police officers are listed down in section 20(3) of Police Act 1967 which include
(a) apprehending all persons who is authorized by law to be apprehend; (b) processing security
intelligence; (c) conducting prosecutions; (d) giving assistance in carrying out any law relating to
events; (e) giving assistance in preservation of order in the ports, harbours and airports of
Malaysia as well as enforcing maritime and port regulations; (f) executing summonses,
subpoenas, warrants, commitments and other process; (g) exhibiting information; (h) protecting
unclaimed property and finding the owners; (i) seizing stray animals and placing them in a public
pound; (j) giving assistance in protection of life and property; (k) protecting public property; (l)
attending the criminal courts or civil courts to keep order: (m) escorting and guarding prisoners.
When the police officers are performing the duties of escorting and guarding prisoners, they
would enjoy the privileges as prison officers, as provided under section 20(4) of Police Act 1967,
which prescribed another general duty is such as to be a prison officer.

Their breach of duty can amount to prosecution in ordinary courts according to the
general principles of civil and criminal liability. In Dr Sanusi Osman v Datuk Ismail Che’ Ros
[2010] 3 CLJ 198, the plaintiff claimed for damages against the defendants who were the
members of Royal Malaysian Police Force and the Government of Malaysia on the basis that the
defendants failed to carry out their statutory duties by failing to prevent the individuals to intrude
in the incident taking place during the Asia Pacific Conference on East Timor II. It was held that
even though the police officer had discretion under section 27A(1)(c) of Police Act 1967 to
ensure the peace, his conduct was against the expectation of law as his arrest on the plaintiff
occurred in a situation which could not be deemed to be a threat to the peace, showing that the
police officer had used his discretion arbitrarily.

In short, a police officer is synonymous with a citizen in uniform. Though he is the

specialists in using reasonable force in crime prevention, he is not above the law as he would
also be prosecuted in ordinary courts if his authority is exceeded. Therefore, aside from Police
Act 1967, Public Order (Preservation) Act 1958 is another statute that can be used as the
guidelines for the police officers in executing their duties to avoid them from abusing their
power.

In conclusion, police officers are specialists in enforcing the law as they are legally appointed
persons who are given the special duty of maintaining the peace and security in our country for
the safety of the citizens.
- Conclu: Police have several general powers in regards to exercising of duties.

1. Abu, a high raking policeman is seeking your advice on the following:

a) Two police constables were instructed to proceed to a crime scene. Instead, they
stopped by at a petrol station, bought ice cream and as a result, arrived at the
crime scene thirty minutes late.

MDM ANS
IS: Whether the two police constables violated the provisions under the PA1967. (must incld
parties and area of law)
S20(3) – para a and j
- Cite only relevant paras
S74 of PA – police officers are subjected to Police Regulations 1952 – disciplinary act
Reg 2(a)(38)
Penalty – S94 of PA – general penalties
AP: these two police constables were instructed to crime scene. They were supposed to go to the
crime scene right away, but detour to gas station, ate ice cream. Arrived 30 mins late, violation
of S20(1) and S20(2) as they disobeyed superior orders.
Negligent in performing of duties as PO bc they were supposed to arrive at cs as soon as possible
but instead they stopped by and bought ice cream. Negligence on their part therefore they may be
liable under S94 of the PA1967.

Conclu: it is most likely that the two police constables violated the provisions under the PA1967.

IS: whether violated PA1967 – arrive late to crime scene

The first issue is whether the two police constables violated the provisions under the PA1967.
S19 of Police Act 1967 states that police officers are always under a statutory duty to act. It
stated that every police officer, extra officer and watch constable shall, for the purposes of this
Act, be deemed to be always on duty when required to act as such and shall perform the duties
and exercise the powers granted to him under this Act or any other law at any place in Malaysia
where he may be doing duty. Police must always ready to act and prepared to work for extra
shifts and hours and also carry out duties in pursuance what has been described under the Act.
Hence, in the current situation, the two police constables are always under the statutory duty to
act, whereby even though they have yet to reach the crime scene, they are to be on duty to
perform professionally at all times. The act of stopping at a petrol station and buying ice cream is
not a statutory duty, hence, the act committed by the two police constables were wrong. Arrived
30 minutes late, under breach of lawful duty to perform their statutory duty.
S20(1) of Police Act 1967 also confer essential duties on a police officer. S 20 (1) of Police Act
1967 stated that every police officer shall perform such duties and exercise such powers as are by
law imposed or conferred upon a police officer, and shall obey all lawful directions in respect of
the execution of his office which he may from time to time receive from his superior officers in
the Force. Police officers, must follow orders from superior officer, even though not from a
direct superior officer. And they must Act under orders.
In the current case, the two police constables were instructed to proceed to the crime scene,
however they instead went to a petrol station and ate ice cream. Hence, this illustrates that the
two police constables did not obey the lawful directions as instructed by their superior officer. As
they arrived at the crime scene half an hour late, this act would have disrupted the whole
investigation process.
S20(2) of Police Act 1967 stated that where any duty, power or discretion is imposed or
conferred by or under this Act or any other law on a police officer of any specified rank or
holding any specified office, such police officer shall, in the performance of such duty or the
exercise of such power or discretion, be subject to the orders and directions of any police officer
to whom he is directly subordinate, and any such last mentioned police officer, if the occasion
arises and he deems it expedient so to do, shall himself perform any such duty or exercise any
such power or discretion. It stated that orders from direct superior must be followed and Direct
Superior must attend by himself if necessary.
In the current case, it is evident that the two police constables did not proceed to perform their
duties as subjected by their superior officer. Instead of immediately going to the crime scene as
instructed, they detoured to a petrol station and ate ice cream which caused them to arrive 30
minutes late. This act of irresponsibility was an act against the orders of their Superior, which
was clearly not followed as the two police constables detoured to a different location which
delayed their time of arrival at the crime scene.
[Reg 2(a)(38): idle or negligent in performing duty] – apply law + application
In the case of Public Prosecutor v Hassan Bin Hj Ali Basri [2014] 7 MLJ 153, the accused is a
corporal attached to the Special Branch of the Royal Malaysian Police Force and he was charged
under S 130B and S 130M of the PC, the offence of omitting to disclose information pertaining
to a terrorist act. The issue is whether the accused had reason to believe that a terrorist act would
be committed and that he omitted to give the said information and whether the accused was
legally bound to transmit the said information to his superiors. The court sentenced the accused
to 7 years imprisonment for his crime according to S 130M of the PC.
Thus, applying the case of PP v Hassan in the current case, the corporal had a statutory duty to
transmit the information he had regarding the possibility of the terrorist attack to his superiors.
The failure to do so was against S130M of the PC. Similarly, in the current case, the police
constables were under the statutory duty to perform the tasks as instructed by their superiors,
which was to go to the crime scene, and not to detour to another location which would delay
their arrival. Failure of the police constables to perform their duties may be found guilty of an
offence against discipline, as prescribed by the Police Regulations 1952; [Reg 2(a)(38): idle or
negligent in performing duty]
To conclude, it is most likely that the two police constables violated the provisions under the
PA1967.
 b) A complaint from a member of the public that he was stopped in the middle of
town, his car thoroughly searched, and he was instructed to proceed to the nearest
police station, where his car was detained for a further 12 hours.

Would your answer be any different, if a robbery had been committed in the
morning and the witnesses seem to have described one of the robbers to be
somebody resembling the complainant?

If there is reasonable ground – legal, if there is no, then it is illegal

Keywords of provisions – reasonable ground, period of detention not exceeding 48 hours –

discuss these parts – eg whether it exceed the detention period, etc

Reasonable ground for suspecting – whether there is reasonable ground

Conclusion: PO may have probably power to stop search and detain the complainants car if they
have reasonable grounds to do so

2nd part – not necessary to have issue

Yes, the ans would be dif if robbery had been committed, cite provisions again – immediately
apply – the PO have reasonable grounds to do so bc robbery in the morning, with this the PO hv
reasonable grounds to stop search complainants car under S24(1)(b) of PA as they hv RG that
complainant used his car in the commission of the offence of robbery. S24(4) 0 RG to do so,
detention does not exceed 48 hours, the detention is legal.

Conclu: if there is reasonable ground, robbery in the morn, witness, etc, with that reasonable
ground, PO have powers to stop search the complainants car

IS: whether lawful to stop and search car – no and yes depends on
circumstance
The first issue is whether it was lawful for the police to stop, search and detain the car?
S.24(1)(b) of the PA provides that a Police Officer may stop and search without warrant any
vehicle or vessel which he has reasonable grounds for suspecting is being used in the
commission of any offence against any law in force: Provided that such vehicle or vessel shall
not, subject to the S 24(4), be detained longer than is reasonably necessary to complete such
search.
Thus, in the current case, the police officers who stopped the complainant do have the authority
to stop and search his car given that there was reasonable grounds to suspect that the
complainants vehicle was used in any commission of any offence against the law. Since the facts
remain silent on whether there is reasonable grounds for the stop and search, if there was no
reasonable ground, then the stop and search performed by the police officers would be unlawful.
However, if there was reasonable grounds, then it would be lawful for the police officers to
conduct the stop and search as prescribed in S24(1)(b) of the PA.
S24(4) of the PA provides that any police officer may cause any vehicle which he has reasonable
grounds to suspect has been used in the commission or to be evidence of the commission of an
offence to be moved to the nearest Police District headquarters or other convenient place, and the
Officer in Charge of such Police District (OCPD) may cause such vehicle to be detained,
pending enquiries, for a period not exceeding 48 hours, or if, within that period, there are
commenced proceedings in which the vehicle is liable to forfeiture under any law or to be
produced in evidence, until the end of those proceedings: Provided that the OCPD may, direct
release of such vehicle where he is satisfied that the owner or person in charge of such vehicle
will duly produce such vehicle before the court when required, and may require such owner or
person to execute bond or deposit security as he may deem reasonable.
Therefore, in the current case, the complainant’s car was instructed to be brought to the nearest
police station to be detained for 12 hours. Referring to S24(4), if the police officer has reasonable
grounds to suspect that the vehicle is to be used in the commission of an offence, it may be
moved to the nearest Police District headquarters to be detained for a period not more than 48
hours. As such, in the current case, the vehicle was detained for 12 hours which is within the 48
hour limit. However, it is to be said that there was no reasonable ground for the detaining of the
complainant’s car. Therefore, it is unlawful for the police officer to detain the complainant’s
vehicle.
In the case of Hong Leong Bank Bhd v Public Prosecutor [2016] 5 MLJ 450, the court held that
it is lawful for the police to detain the car if the car alleged to have been stolen or found under
circumstances which caused suspicion of any offense which means that if the car had been stolen
or falls under any circumstances that it is suspicious then the police can detain the car.

Applying back to the current case, there was no circumstances stated in the question which
would lead to suspicion for the police to detain the car. Hence, it would be unlawful for the
police officers to detain the car given if there was no suspicious circumstances as seen in the
question.

In the case of Manoharan a/l Dorasamy v Ketua Polis Ibu Pejabat Kontinjen Polis Seremban,
Negeri Sembilan & Anor (2002) 2 MLJ 85, the court held that the vehicle had been detained by
police for more than 48 hours after it was seized. This detention was illegal under section 24(4)
of the PA 1967, as it is lays down the period whereby vehicle can be seized by the police officer
which is not exceeding 48 hours.

In the current case, the duration of the detaining of the complainant’s car was 12 hours, which
was under the 48 hour limit of detention. Hence, it is not illegal. However, if the vehicle of the
complainant was detained without reasonable grounds, it is not lawful.

To conclude, the act of police officer to search and detain the car would probably be unlawful if
there is no reasonable ground to do so. However, if there was reasonable grounds, then it would
probably be lawful for the police officers to perform the stop and search.

Would your answer be any different, if a robbery had been committed in the
morning and the witnesses seem to have described one of the robbers to be
somebody resembling the complainant?
IS: whether lawful – yes based on reasonable ground
(NOT NECESSARY TO HAVE ISSUE) The second issue is whether it is lawful for the police
officer if a robbery had been committed in the morning and the witnesses seem to have described
one of the robbers to be somebody resembling the complainant?
S.24(1)(b) of the PA provides that a Police Officer may stop and search without warrant any
vehicle or vessel which he has reasonable grounds for suspecting is being used in the
commission of any offence against any law in force: Provided that such vehicle or vessel shall
not, subject to the S 24(4), be detained longer than is reasonably necessary to complete such
search.
Thus, in the current case, the police officers who stopped the complainant do have the authority
to stop and search his car given that there was reasonable grounds to suspect that the
complainants vehicle was used in any commission of any offence against the law. Since it is
provided in the new situation that the witness of a robbery in the morning described one of the
robbers to resemble the complainant, that would amount to reasonable ground for the police
officer to stop and search the vehicle of the complainant.
S24(4) of the PA provides that any police officer may cause any vehicle which he has reasonable
grounds to suspect has been used in the commission or to be evidence of the commission of an
offence to be moved to the nearest Police District headquarters or other convenient place, and the
Officer in Charge of such Police District (OCPD) may cause such vehicle to be detained,
pending enquiries, for a period not exceeding 48 hours, or if, within that period, there are
commenced proceedings in which the vehicle is liable to forfeiture under any law or to be
produced in evidence, until the end of those proceedings: Provided that the OCPD may, direct
release of such vehicle where he is satisfied that the owner or person in charge of such vehicle
will duly produce such vehicle before the court when required, and may require such owner or
person to execute bond or deposit security as he may deem reasonable.
Therefore, in the current case, the complainant’s car was instructed to be brought to the nearest
police station to be detained for 12 hours. Referring to S24(4), if the police officer has reasonable
grounds to suspect that the vehicle is to be used in the commission of an offence, it may be
moved to the nearest Police District headquarters to be detained for a period not more than 48
hours. As such, in the current case, the vehicle was detained for 12 hours which is within the 48
hour limit. Seeing as there was reasonable ground for suspicion, being that a witness to a robbery
stated that the complainant resembled one of the robbers, the detainment of the vehicle for under
48 hours is lawful.
In the case of Hong Leong Bank Bhd v Public Prosecutor [2016] 5 MLJ 450, the court held that
it is lawful for the police to detain the car if the car alleged to have been stolen or found under
circumstances which caused suspicion of any offense which means that if the car had been stolen
or falls under any circumstances that it is suspicious then the police can detain the car.

Applying back to the current case, the circumstances stated in the question would lead to
suspicion for the police to detain the car, as there has been established that there was reasonable
grounds for the detainment of the complainant’s car. Hence, it would be lawful for the police
officers to detain the car given that there was suspicious circumstances as seen in the question.

In the case of Manoharan a/l Dorasamy v Ketua Polis Ibu Pejabat Kontinjen Polis Seremban,
Negeri Sembilan & Anor (2002) 2 MLJ 85, the court held that the vehicle had been detained by
police for more than 48 hours after it was seized. This detention was illegal under section 24(4)
of the PA 1967, as it is lays down the period whereby vehicle can be seized by the police officer
which is not exceeding 48 hours.

In the current case, the duration of the detaining of the complainant’s car was 12 hours, which
was under the 48 hour limit of detention. Hence, it is not illegal. Additionally, the vehicle of the
complainant was detained with reasonable grounds, hence it is lawful.
To conclude, if a robbery had been committed in the morning and the witnesses seem to have
described one of the robbers to be somebody resembling the complainant, it can constitute a
reasonable ground for the police officer to search and detain the car for further investigation,
making such conduct lawful.

3. Ali is proposing to hold an assembly in Melaka. He is now seeking your advice in

relation to this. Based on the relevant provisions under the Police Act 1967 and the
Peaceful Assembly Act 2012, advise Ali. (essay question)
Intro – mention tht S27 has been repealed by PAA 2012

Content – do comparison
Under old law, S27 of PA requires organiser to obtain license however under new law S9 PAA
states that no requirement for license bt organiser must notify OCPD 5 days before assembly
- Make sure focus more on PAA 2012 – current applicable law – briefly explain S27 of PA
provisions, then explain PAA
- S4(1) PAA and certain ppl not allowed to attend, S4(2) – penaltgies if violate (1)
- S10 - Notification shall incld certain documents – form under 4 th schedule, notif shall be signed
by organiser
- S11 – if assembly is not religious, etc – organiser is required to obtain consent
- S15 – restrictions
- S16 – appeal
- S21 – disperse assembly

Conclusion: General; Ali is required to comply with PAA 2012 to organise an assembly in
Melaka.

Assembly based on PAA - Essay

In Police Act 1967, section 27 grants the police the power to maintain public order in assembly.
Section 27(1) of Police Act 1967 authorizes the OCPD or any police officer to direct the conduct
of all assemblies, meetings and processions in public places by prescribing the route and time.
However, S27 of the PA has now been repealed by the Peaceful Assembly Act 2012.

Responsibilities of Organizer & Participants

Section 4(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that peaceful
assembly without arms is allowed to be conducted, except for (a) non-citizen; (b) those held at or
within fifty metres of prohibited placed; (d) with the organizers below 21 years old; (e) with
participations who are children.
Section 4(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone is deemed
to commit an offence if he (a) organizes or participates in an assembly despite being a non-
citizen; (b) organizes or participates in an assembly held at or within fifty metres of prohibited
placed; (d) organizes an assembly despite being below the age of twenty-one; (e) participates in
an assembly other than an assembly specified in the Second Schedule, including religions
assemblies, funeral processions, assemblies related to custom or approved by the Minister,
despite being a child; (f) recruits a child to an assembly other than specified in the Second
Schedule.
Section 4(3) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone who
commits an offence under paragraphs 2(a) to (e) shall be liable to a find not exceeding ten
thousand ringgit.
Section 6(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the organizer
shall ensure the assembly is in compliance with this Act and other written laws.
Section 6(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the organizer
shall ensure (a) the assembly complies with this Act and other written laws; (b) there is no
statement or any act that tends to would disturb public tranquillity; (c) there is no commission of
offence under any written law; (d) the conduct of the assembly is in accordance with the
notification of assembly under subsection 9(1) and any restrictions under section 15; (e) the
appointment of any person necessary to be in charge of the order of the assembly; (f) cooperation
with public authorities; (g) the assembly will not endanger health or damage to property or to the
environment; (h) the assembly will not cause any inconvenience to the public; (i) the clean-up of
the place of the assembly; (j) the organization of the assemblies are not intended to prevent other
assembly form taking place when there are other assemblies taking place simultaneously.
Section 7(a) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the participants
shall refrain from (i) disrupting any assembly; (ii) behaving offensively towards anyone; (iii)
doing any act or making any statement with a tendency to promote hostile feelings against the
public; (iv) committing any offence under any written law; (v) causing damage to property.
Section 7(b) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the participants
shall adhere to the orders given by the police, organizer or anyone in charge of the orderly
conduct of the assembly.
Section 8 of Peaceful Assembly Act 2012 (Amendment 2019) provides that the police may take
any measure which he deems necessary to ensure the orderly conduct of the assembly.
Requirements for Organizing the Assemblies
Section 9(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that an organizer shall
notify the OCPD about the assembly five days before the actual date.
Section 9(5) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone who
contravenes subsection (1) commits an offence and shall be liable to a fine not exceeding ten
thousand ringgit.
Section 10 of Peaceful Assembly Act 2012 (Amendment 2019) provides that the notification
shall be (a) in the form in the Fourth Schedule; (b) signed by the organizer; (c) accompanied by a
copy of the consent of the owner of the place of assembly; (d) accompanied by any additional
document specified by the OCPD; and (e) contain: (i) the name and details of the organizer, (ii)
the correspondence address of the organizer, (iii) the name and address of the speakers in the
assembly, (iv) the purpose of the assembly, (v) the date of the assembly, (vi) the place of the
assembly, (vii) the starting and ending time of the assembly; (viii) if the assembly is a
precessions: (A) the proposed route of the procession; (B) any place where the procession will
stop and (C) the length of time for the procession to remain at each place; (ix) the expected
number of participants; (x) the person appointed by the organizer in charge of the orderly
conduct of the assembly; and (xi) a description of the sound amplification equipment or any
device used during the assembly.
Section 11 of Peaceful Assembly Act 2012 (Amendment 2019) provides that the organizer of an
assembly, other than a religious assembly or a funeral procession, shall obtain the consent of the
owner of the place of assembly.
Response to the Notification
Section 14(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the OCPD shall
respond to the notification within three days of the receipt of the notification and inform the
organizer restrictions and conditions.
Section 14(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that if the OCPD
does not respond to the notification within three days, the assembly shall proceed.
Restrictions and Conditions
Section 15(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the OCPD may
impose restrictions and conditions on the assembly for the purpose of security or public order,
including the protection of rights and freedom of other persons.
Section 15(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the restrictions
and conditions may relate to (a) date, time and duration of assembly; (b) the place of assembly;
(c) manner of assembly; (d) conduct of participants during the assembly; (e) payment of clean-up
costs from the holding of the assembly; (f) any inherent environment factor, cultural or religious
sensitivity and historical significance of the place of assembly; (g) concerns and objections of
persons having interests; (h) any matters where the OCPD deems necessary,
Section 15(3) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone who
fails to comply with the restrictions and conditions commits an offence and shall be liable to a
fine not exceeding ten thousand ringgit.
Appeal
Section 16(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone may
appeal on the imposition of restrictions and conditions to the Minister within twenty-four hours
of being informed.
Section 16(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the Minister
shall give his decision within twenty-four hours of the receipt of the appeal.
Arrest
Section 20(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that a police officer
may arrest anyone without warrant who (a) refuses to comply with any restrictions and
conditions during an assembly; (b) possesses any arms; (c) recruits a child to an assembly other
than an assembly specified in Second Schedule,
Section 20(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the police
officer shall take necessary measures to ensure voluntary compliance by the organizer or
participant before the arrest.
Dispersal of Assembly
Section 21(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that a police officer
may disperse an assembly if (a) it is held within fifty metres or at a prohibited place; (c) anyone
who does any act or makes any statement with a tendency to promote hostility; (d) any person
commits an offence at the assembly; (e) the participants did not comply with the restrictions and
conditions; (f) the participants are engaging in the unlawful conduct towards persons or property.
Section 21(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the police
officer may use all reasonable force in dispersing an assembly.
Section 21(3) of Peaceful Assembly Act 2012 (Amendment 2019) provides that any person who
fails to comply with the order commits an offence and shall be liable to a fine not exceeding
twenty thousand ringgit.

EXTRA CASES
1. Public Prosecutor v Cheah Beng Poh & Ors (1984) 2 MLJ 225
Facts: On 19 June 1984, 42 lawyers were charged under section 27(5) of Police Act 1967 for
taking part in an unlawful assembly in a public place without a license.
Held: The court held that an assembly taking place without a license shall be deemed as an
unlawful assembly under section 27(5) of Police Act 1967.
2. Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor (2013) 6 MLJ 660
Facts: The appellants were charged for taking place in an assembly in a public place with no
police license issued under section 27(2) of Police Act 1967. They however contended that
sections 27(2) and (5) of Police Act 1967 were unconstitutional due to the contravention with
Article 10(1)(b) of Federal Constitution.
Held: The court held that the underlying objective for the prior requirement for a police licence
for any assembly as prescribed in section 27(2) of Police Act 1967 had to be associated with the
avoidance of public disorder. Therefore, various considerations had been taken into account by
the police if they had to reject a particular licence application, whereby the assembly was viewed
to be prejudicial to security or to excite a disturbance of the peace. Hence, these two provisions
are not unconstitutional or inconsistent with Article 10(1)(b) of Federal Constitution.
3. Public Prosecutor v Liew Ah Kim & Ors (1986) 1 MLJ 419
Facts: Due the issue arisen from announcement of the development of Bukit China by the
Malacca State Government, the Democratic Action Party had intended to hold a ‘walk and jog’
meeting at Bukit China on August 1984, where 800 to 900 persons gathering at a temple located
at the foot of the hill. The Chief Police Officer then issued a warning through his loud hailer to
the effect that the people gathering there were committing an offence under section 27 of Police
Act and ordered them to disperse immediately, but was ignored. Therefore, the respondents were
arrested and taken to the police.
Held: The court held that once there are more than three or more persons gathering in a public
place, it would be considered an assembly and when the assembly is an organized one, not the
spontaneous one, a license under section 27(2) of Police Act is required from the police. In fact,
failure to comply with the requirement will render the organizer and the participant with the
knowledge of the unlicenced assembly would be liable to prosecution under section 27(5)(a) of
Police Act 1967.
4. Public Prosecutor v Yuneswaran a/l Ramaraj (2015) 6 MLJ 47
Facts: The respondent was charged under section 9(1) of Peaceful Assembly Act 2012 for failing
to notify the OCPD ten days before the date of assembly. However, the respondent denied he
was the organizer of the gathering and claimed that the assembly was organized by Majilis
Pimpinan Negeri PKL. However, it was found in the High Court that the respondent was the
organizer of the assembly as defined in section 3 of Peaceful Assembly Act 2012. In fact, the
court held that section 9(5) of Peaceful Assembly Act 2012 was unconstitutional. Therefore, the
issue before this appeal case is whether the requirement under section 9(1) of Peaceful Assembly
Act 2012 to give notice prior to the exercise of right to assemble peaceably is a ‘restriction’
within the meaning of Article 10(2)(b) of Federal Constitution.
Held: The Court of Appeal held that the Peaceful Assembly Act 2012 aims to facilitate the
exercise of right granted by Article 10(1)(b) of Federal Constitution, but not to restrict it.
Therefore, the requirement for ten day notice in advance is crucial and reasonable to enable the
police to make necessary plan and preparation to satisfy their legal obligation by facilitating the
lawful exercise of one’s right to assemble peaceably as well as preserving public order and
protecting the rights of other persons.
5. Kerajaan Malaysia v Ambiga Sreenevasan & Ors [2016] 5 MLJ 721
Principle: In Bersih 3.0 assembly, the defendants were charged for negligence as it was alleged
that the assembly had not been carried out in a peaceful manner and that the participants had
caused damage to government property. However, from the evidence, it could not be concluded
that the genuine participants at the assembly were the ones who had caused the damage to the
police vehicles, so defendants as organisers of the assembly had not breached any duty of care on
the facts.
6. Chai Choon Hon v Ketua Polis, Daerah Kampar [1986] 2 MLJ 203
Facts: A DAP solidarity dinner and lion dance in a public place was applied for a license, but
seven conditions had been imposed, including the restriction of number of speakers to seven only
as well as the prohibition for the speeches to touch on political issues. The restriction on the
number of speakers was held to be invalid and unreasonable because the permit already imposed
a time limit, which rendered the condition unnecessary.

Comparison of Police Act and PAA

The main difference between section 27 of Police Act 1967 and Peaceful Assembly Act
2012 is that the latter introduces the responsibilities of both the organizers and the participants in
ensuring a peaceful assembly. In fact, the responsibilities of the organizers are outline in section
6 of the Peaceful Assembly Act 2012. Section 6(1) of Peaceful Assembly Act 2012 (Amendment
2019) provides that the organizer shall ensure the assembly is in compliance with this Act and
other written laws. Section 6(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides
that the organizer shall ensure (a) the assembly complies with this Act and other written laws; (b)
there is no statement or any act that tends to would disturb public tranquillity; (c) there is no
commission of offence under any written law; (d) the conduct of the assembly is in accordance
with the notification of assembly under subsection 9(1) and any restrictions under section 15; (e)
the appointment of any person necessary to be in charge of the order of the assembly; (f)
cooperation with public authorities; (g) the assembly will not endanger health or damage to
property or to the environment; (h) the assembly will not cause any inconvenience to the public;
(i) the clean-up of the place of the assembly; (j) the organization of the assemblies are not
intended to prevent other assembly form taking place when there are other assemblies taking
place simultaneously. Besides, the obligations of the participants are vested in section 7 of
Peaceful Assembly Act 2012, whereby Section 7(a) of Peaceful Assembly Act 2012
(Amendment 2019) provides that the participants shall refrain from (i) disrupting any assembly;
(ii) behaving offensively towards anyone; (iii) doing any act or making any statement with a
tendency to promote hostile feelings against the public; (iv) committing any offence under any
written law; (v) causing damage to property. Section 7(b) of Peaceful Assembly Act 2012
(Amendment 2019) provides that the participants shall adhere to the orders given by the police,
organizer or anyone in charge of the orderly conduct of the assembly. The effectiveness of this
provision was tested for the first time during the Bersih 3.0 rally whereby this event resulted in
many injuries to persons, damaged properties during and after the incident due to the non-
compliance of the conditions and procedure imposed on both organizers and the participants. As
a result, the Government took an action against the organizer for failing to ensure peaceful rally
throughout the event.

Furthermore, section 27 of Police Act requires the application of license by the organizer,
as specified in Section 27(2) of Police Act 1967 instructing anyone intending to conduct any
assembly to make an application for a licence from the OCPD for the satisfaction that the
assembly does not harm the interest of security of Malaysia or to excite a disturbance of the
peace with the conditions of the permitted assembly, provided that the police officer can cancel
the license at any time. The non-compliance of this requirement will amount to an offence,
where Section 27(5) of Police Act 1967 provides that any assembly (a) taking place without a
license or (b) with three or more persons taking part fail to obey any order given shall be deemed
to be an unlawful assembly where everyone attending the assembly with no issuance of license
shall be guilty of an offence. However, Peaceful Assembly Act 2012 no longer requires a license
from OCPD to conduct an assembly, but the organizer still needs to notify the OCPD about the
assembly five days before the actual date, as provided in Section 9(1) of Peaceful Assembly Act
2012 (Amendment 2019). Section 9(5) of Peaceful Assembly Act 2012 (Amendment 2019)
provides that anyone who contravenes subsection (1) commits an offence and shall be liable to a
fine not exceeding ten thousand ringgit. Besides, in notifying the OCPD, there are certain
requirements provided in Section 10 of Peaceful Assembly Act 2012 (Amendment 2019),
whereby the notification shall be (a) in the form in the Fourth Schedule; (b) signed by the
organizer; (c) accompanied by a copy of the consent of the owner of the place of assembly; (d)
accompanied by any additional document specified by the OCPD; and (e) contain: (i) the name
and details of the organizer, (ii) the correspondence address of the organizer, (iii) the name and
address of the speakers in the assembly, (iv) the purpose of the assembly, (v) the date of the
assembly, (vi) the place of the assembly, (vii) the starting and ending time of the assembly; (viii)
if the assembly is a precessions: (A) the proposed route of the procession; (B) any place where
the procession will stop and (C) the length of time for the procession to remain at each place; (ix)
the expected number of participants; (x) the person appointed by the organizer in charge of the
orderly conduct of the assembly; and (xi) a description of the sound amplification equipment or
any device used during the assembly. Nevertheless, the constitutionality of section 9(1) of
Peaceful Assembly Act 2012 (Amendment 2019) was challenged in Mohd Rafizi Ramli & Anor
v Public Prosecutor (2016) 7 CLJ 246, whereby Amelia Tee Abdullah J quoted that the
requirement under this provision to give notice prior to the exercise of the right to assemble
peacefully is not a restriction within Article 10(2)(b) of Federal Constitution. After all, there was
a commendable paradigm shift for previously, under the Police Act regime, whereby the OCPD
has the final say on the conduct of assembly where the police was made the arbiter of the
citizen’s constitutional right to peaceful assembly. With the introduction of Peaceful Assembly
Act 2012 (Amendment 2019), the police’s role has changed to only as the mediator or regulator
as quoted in Public Prosecutor v Yuneswaran a/l Ramaraj (2015) 6 MLJ 47 whereby they can
only impose certain conditions and restrictions on the assembly under Section 15 of Peaceful
Assembly Act 2012 (Amendment 2019).

Correspondingly, the difference can be observed from the severity of punishment. In

Peaceful Assembly Act 2012 (Amendment 2019), the punishments for non-compliance are
provided in Section 4(3) of Peaceful Assembly Act 2012 (Amendment 2019), Section 15(3) of
Peaceful Assembly Act 2012 (Amendment 2019) and Section 21(3) of Peaceful Assembly Act
2012 (Amendment 2019). Unlike section 27 of Police Act which sets the minimum penalties for
an offence, they are not found under these provisions. From these three provisions, if the amount
on the imposition of the penalties is applied to the principle of the severity of punishment, the
punishments are not severe. Besides, the use of “shall be liable to” in these provisions indicates
that the judge has absolute discretion in imposing the sentence. For example, in the recent
judgment where the accused organizing “Black Out 505” who failed to notify the OCPD were
only punished with a fine of RM1950.00 out of RM10000.00. In fact, the penalty provided under
this Act is not sufficient to act as the deterrence to the offender from committing the offence.

The requirements for a police to disperse an assembly under the Peaceful Assembly Act
2012 (Amendment 2019) are higher than that under section 27 of Police Act 1967. Section 27(3)
of Police Act 1967 provides the power to any police officer to stop any assembly if a license has
not been issued or has been cancelled after its issuance, followed by the dispersion of the people
in the assembly while Section 21(1) of Peaceful Assembly Act 2012 (Amendment 2019)
provides that a police officer may disperse an assembly if (a) it is held within fifty metres or at a
prohibited place; (c) anyone who does any act or makes any statement with a tendency to
promote hostility; (d) any person commits an offence at the assembly; (e) the participants did not
comply with the restrictions and conditions; (f) the participants are engaging in the unlawful
conduct towards persons or property. By comparing these two provisions, there are three
circumstances needed to be considered before an order to disperse, including the location of the
assembly, the manner of the assembly and the conduct of the participant during an assembly.
Unlike the Police Act 1967 that allows the police officer to arrest anyone suspicious of
committing an offence, under Peaceful Assembly Act 2012 (Amendment 2019), the police
officer has no right to arrest an organizer or the participant unless three conditions under Section
20(1) of Peaceful Assembly Act 2012 (Amendment 2019) that provides that a police officer may
arrest anyone without warrant who (a) refuses to comply with any restrictions and conditions
during an assembly; (b) possesses any arms; (c) recruits a child to an assembly other than an
assembly specified in Second Schedule.

Lastly, prior to amendment, Peaceful Assembly Act 2012 (Amendment 2019) imposed a
blanket ban on “street protests” by providing it under section 4(1)(c) where the offence is further
provided under section 4(2)(c). However, after the amendment, these two sections were
abolished by providing the right to peaceful assembly for the individuals to express their dissent
and grievances. This amendment was criticized by Emeritus Professor Datuk Dr Shad Saleem
Faruqi that a total ban, without linking it to public order and national security, would well fall
afoul of Article 10(2) of Federal Constitution. This view was supported by the previous case of
Dato’ Seri Anwar bin Ibrahim v Public Prosecutor (2013) MLJU 87 where the High Court held
that the ban on street protests did not contravene Article 10 as it was necessary in interest of
national security and public order. In fact, this criterion was not even mentioned in Police Act
1967 where it means that it was used to be subject to the discretion of the OCPD in granting the
permit of such street protests. While giving greater extent of freedom in allowing street protests,
this permission might also jeopardize public safety and social economy. Hence, the police
although no longer have the power to disperse a street protest, they still can do so under section
21(1) of Peaceful Assembly Act 2012 (Amendment 2019) if anyone in the protest does any act
promoting the feelings of ill-will amongst the public.

(EXTRA) IS: whether can hold assembly according to PA/PAA

The issue is whether Ali can hold an assembly or not.

S27 of PA which requires a person to apply for a licence for gatherings or processions of more
than 3 people. To be precise, S27(2) Police Act (PA) 1967 where any person intending to
convene or collect any assembly or meeting or to form a procession in any public place
aforesaid, shall before convening, collecting or forming such assembly, meeting or procession
make an application for a licence from the OCPD, and if such police officer is satisfied that the
assembly, meeting or procession is not likely to be prejudicial to the interest of the security of
Malaysia or any part thereof or to excite a disturbance of the peace, he shall issue a licence that
may prescribe specifying the name of the licensee and defining the conditions upon which such
assembly, meeting or procession is permitted provided that such police officer may at any time
on any ground refused, cancel such licence.
However, the application for license as under S27 of the PA has been replaced by the Peaceful
Assembly Act. S 9(1) PAA 2012 states that there is no requirement for a licence, but organisers
of assemblies must notify the OCPD 5 days before the assembly as a contrast to the old law
mentioned above.

The application of the above laws in this scenario is, as per S9(1) of the PAA 2012, Ali as the
organizer of the assembly must notify the OCPD 5 days prior to the assembly contrary to the old
rule, S 27 PA 1967 which would have required him to apply for a license for the assembly.

S 4(1) of PEACEFUL ASSEMBLY ACT (PAA) 2012 states that the right to organize an
assembly or participate in an assembly peaceably and without arms under this Act shall not
extend to the following: (a) a non-citizen; (b) an assembly held at any prohibited place and
within fifty metres from the limit of the prohibited place; (c) in relation to the organization of an
assembly, a person below the age of twenty-one years; and (d) in relation to the participation in
an assembly other than an assembly specified in the Second Schedule, a child.

Applying S4(1) of PAA, Ali has to be a citizen, and has to avoid holding the assembly at any
prohibited place and within fifty metres from the limit of the prohibited place, has to be above 21
years old and is not a child.

S 10 PAA 2012 states that notification shall be – a) in Form under 4th Schedule of PAA;
b) Signed by organizer; c) Accompanied by a copy of the consent by owner/occupier of the
assembly’s place; d) Accompanied by any additional document as specified by the OCPD, if
any; and e) Contain the particulars such as name and details of organizer, purpose of
assembly etc.
Summary: Provides that the noti shall incld certain documents, eg form under 4th schedule.

According to S10 of the PAA, Ali has to have the notification which is accompanied of all
documents required such as, copy of the consent by owner/occupier of the assembly’s place, and
by any additional document as specified by the OCPD.

S 11 PAA 2012 states that the assembly’s organizer, other than religious assembly or a funeral
procession or an assembly held at a designated place of assembly, shall obtain consent of the
owner/occupier of the place of assembly.

By applying S11 PAA 2012, Ali has to obtain consent of the assembly place from the occupier.
Section 15(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the OCPD may
impose restrictions and conditions on the assembly for the purpose of security or public order.
Section 15(2) of the PAA states that the restrictions and conditions imposed may be such as (a)
the date, time and duration of assembly; (b) the place of assembly; (c) the manner of the
assembly; (d) the conduct of participants during the assembly; (e) the payment of clean-up costs
arising out of the holding of the assembly; (f) any inherent environmental factor, cultural or
religious sensitivity and historical significance of the place of assembly; (g) the concerns and
objections of persons who have interests; or (h) any other matters the Officer in Charge of the
Police District deems necessary or expedient in relation to the assembly. Section 15(3) of
Peaceful Assembly Act 2012 (Amendment 2019) which states that anyone fails to comply with
restrictions and conditions commits an offence and shall be liable to a fine not exceeding ten
thousand ringgit.
Therefore, in the current case, if Ali were to have an assembly, the OCPD has the jurisdiction to
impose restrictions on his assembly if necessary for public order, as prescribed under S15(1) of
the PAA. The restrictions may range from the date, time and duration of assembly; the place of
assembly; the manner of the assembly; the conduct of participants during the assembly; the
payment of clean-up costs arising out of the holding of the assembly; any inherent environmental
factor, cultural or religious sensitivity and historical significance of the place of assembly; the
concerns and objections of persons who have interests; or any other matters the Officer in
Charge of the Police District deems necessary or expedient in relation to the assembly, as
provided under S15(2). Hence, if the restrictions are imposed upon Ali’s assembly and he fails to
abide by the restrictions, he may be found liable to a fine not exceeding RM10,000 as provided
in S15(3).
Section 16(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that anyone may
appeal on the imposition of restrictions and conditions to the Minister within twenty-four hours
of being informed. Section 16(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides
that the Minister shall give his decision within twenty-four hours of the receipt of the appeal.
Hence, if Ali is not satisfied with the restrictions imposed by the OCPD, he may make an appeal
to the Minister within 24 hours of being informed of the restrictions as provided under S16(1) of
the PAA. If the appeal is successful, Ali will have an answer by the Minister within 24 hours of
the receipt of the appeal, by virtue of S16(2).
Section 21(1) of Peaceful Assembly Act 2012 (Amendment 2019) provides that a police officer
may disperse an assembly if (a) it is held within fifty metres or at a prohibited place; (c) anyone
who does any act or makes any statement with a tendency to promote hostility; (d) any person
commits an offence at the assembly; (e) the participants did not comply with the restrictions and
conditions; (f) the participants are engaging in the unlawful conduct towards persons or property.
Section 21(2) of Peaceful Assembly Act 2012 (Amendment 2019) provides that the police
officer may use all reasonable force in dispersing an assembly. Section 21(3) of Peaceful
Assembly Act 2012 (Amendment 2019) provides that any person who fails to comply with the
order commits an offence and shall be liable to a fine not exceeding twenty thousand ringgit.
In the current case, if Ali commits any offences in the midst of his assembly as provided under
S21(1) of the PAA, police officers will have the discretion to disperse the assembly, and they
may use all reasonable force in the dispersing of the assembly by virtue of S21(2). If Ali fails to
comply with any order, he shall be liable to a fine not exceeding RM20,000 by virtue of S21(3)
of the PAA.
Conclusively, Ali is allowed to hold the assembly as long as he fits the criteria as mentioned.

Question 3 (Past Year Exam Question)

Gopal, a high ranking police officer attached to the Melaka Tengah police headquarters, is
seeking your advice on the following:
i) Two police constables, Ali and Abu, who were instructed by their immediate
superior to respond to a distress call in town, were 20 minutes late in arriving at the
crime scene. They arrived at the crime scene late because they decided to have a
drink at an eatery before going to the crime scene.

ii) Also, a third constable, John, has not been reporting for duty for the past one week
without applying for leave. John cannot be reached by his superiors.

IS: whether negligent in conducting duties – yes – arrive late to crime scene

The first issue is whether the two police constables, Ali and Abu were negligent in conducting
their duties and violated the provisions under the PA1967.
S19 of Police Act 1967 states that police officers are always under a statutory duty to act. It
stated that every police officer, extra officer and watch constable shall, for the purposes of this
Act, be deemed to be always on duty when required to act as such and shall perform the duties
and exercise the powers granted to him under this Act or any other law at any place in Malaysia
where he may be doing duty. Police must always ready to act and prepared to work for extra
shifts and hours and also carry out duties in pursuance what has been described under the Act.
Hence, in the current situation, the two police constables, Ali and Abu are always under the
statutory duty to act, whereby even though they have yet to reach the crime scene, they are to be
on duty to perform professionally at all times. The act of stopping at an eatery to have drinks is
not a statutory duty, hence, the act committed by the two police constables were wrong. Arrived
20 minutes late, under breach of lawful duty to perform their statutory duty.
S20(1) of Police Act 1967 also confer essential duties on a police officer. S 20 (1) of Police Act
1967 stated that every police officer shall perform such duties and exercise such powers as are by
law imposed or conferred upon a police officer, and shall obey all lawful directions in respect of
the execution of his office which he may from time to time receive from his superior officers in
the Force. Police officers, must follow orders from superior officer, even though not from a
direct superior officer. And they must Act under orders.
In the current case, the two police constables were instructed to proceed to the crime scene,
however they instead went to an eatery and had drinks. Hence, this illustrates that the two police
constables did not obey the lawful directions as instructed by their superior officer. As they
arrived at the crime scene 20 minutes late, this act would have disrupted the whole investigation
process.
S20(2) of Police Act 1967 stated that where any duty, power or discretion is imposed or
conferred by or under this Act or any other law on a police officer of any specified rank or
holding any specified office, such police officer shall, in the performance of such duty or the
exercise of such power or discretion, be subject to the orders and directions of any police officer
to whom he is directly subordinate, and any such last mentioned police officer, if the occasion
arises and he deems it expedient so to do, shall himself perform any such duty or exercise any
such power or discretion. It stated that orders from direct superior must be followed and Direct
Superior must attend by himself if necessary.
In the current case, it is evident that the two police constables did not proceed to perform their
duties as subjected by their superior officer. Instead of immediately going to the crime scene as
instructed, they detoured to have drinks at an eatery which caused them to arrive 20 minutes late.
This act of irresponsibility was an act against the orders of their Superior, which was clearly not
followed as the two police constables detoured to a different location which delayed their time of
arrival at the crime scene.
In the case of Public Prosecutor v Hassan Bin Hj Ali Basri [2014] 7 MLJ 153, the accused is a
corporal attached to the Special Branch of the Royal Malaysian Police Force and he was charged
under S 130B and S 130M of the PC, the offence of omitting to disclose information pertaining
to a terrorist act. The issue is whether the accused had reason to believe that a terrorist act would
be committed and that he omitted to give the said information and whether the accused was
legally bound to transmit the said information to his superiors. The court sentenced the accused
to 7 years imprisonment for his crime according to S 130M of the PC.
S74 of PA: All members of Police Force shall be subject to the provisions of the Police
Regulations relating to discipline. Under S74, Reg 2(a)(38) provides that a police officer is
idle or negligent in the performance of his duty, or, without reasonable cause, gossips, sits or
lies down or smokes while on duty, shall be guilty of an offence against discipline.
Thus, applying the case of PP v Hassan in the current case, the corporal had a statutory duty to
transmit the information he had regarding the possibility of the terrorist attack to his superiors.
The failure to do so was against S130M of the PC. Similarly, in the current case, the police
constables were under the statutory duty to perform the tasks as instructed by their superiors,
which was to go to the crime scene, and not to detour to another location which would delay
their arrival. Failure of the police constables to perform their duties may be found guilty of an
offence against discipline, as prescribed by the Police Regulations 1952; which in this case is
Reg 2(a)(38), whereby it is evident that both Ali and Abu were idle or negligent in
performing their duties.
With regards to complaint and punishment of police, Section 78 of PA illustrates interdiction
from duty in which a police officer can be stopped from carrying out his duties if there are
complaints against him, while,

Section 94 of PA 1967 further elaborates on the General Penalty in which any person who is
guilty of an offence under the PA for which no other penalty is expressly provided shall be liable
to a fine not exceeding five hundred ringgit or to imprisonment for a term not exceeding six
months or to both.

With regards to the situation above, Ali and Abu who got complaint on the late arrival at the
crime scenes can be stopped from carrying out their duties pursuant to Section 78 of PA. While
the act of Ali and Abu have a drink at the eatery before heading to the crime scene is said to have
violated Reg 2(a)(38) of Police Regulations 1952 by performing their duty negligently. As a
result, Ali and Abu shall be guilty of an offence against discipline and be liable to a fine not
exceeding five hundred ringgit or imprisonment for a term not exceeding six months of both
pursuant to Section 94 of PA.
+ S78 of PA – apply if Ali and Abu receive complaints from public because of late arrival at
crime scene – someone distress call to police – negligent in duty
+ S94 of PA – general penalty to police officer
AP – did not proceed to crime scene immediately – not acting in accordance to order of
superior – S20(2), negligence in duties as not proceeding to crime scene immediately – 20
mins late
To conclude, it is highly likely that the two police constables, Ali and Abu were negligent in
conducting their duty under the PA 1967 as they did not obey the instructions of the superiors by
directly go the crime scene.

IS: whether committed desertion of duties

The second issue is whether John has committed the offence of desertion under S86 of the PA
1967.

S86 of PA 1967 – Desertion:

(1) Any police officer who, without reasonable cause, the onus of proof whereof shall rest
with him, absents himself from duty for a continuous period of 21 days or in
circumstances which show that he has the intention of not returning to his duty shall be
deemed to have deserted, and shall be guilty of an offence and shall be liable on
conviction to imprisonment for a term not exceeding twelve months.
(2) Any police officer who, without reasonable cause, the onus of proof whereof shall rest
with him, absents himself from duty for a continuous period of 21 days or in
 circumstances which show that he has the intention of not returning to his duty shall be
deemed to have deserted, and shall be guilty of an offence and shall be liable on
conviction to imprisonment for a term not exceeding twelve months.

Applying S86 to the case at hand involving John a third constable, who has not been reporting
for duty for the past one week without applying for leave and also cannot be reached by his
superiors is said to be circumstances to have shown his intention of not returning to his duty.
This is as his absence would deem him to have deserted his duty, and the circumstances as
highlighted above clearly indicates so.

Conclusion, it is most likely that John has committed the offence of desertion under S86 of the
PA 1967.

DIF ANS

According to Section 86 (2) of PA, any police officer who, without reasonable cause, the onus of
proof whereof shall rest with him, absents himself from duty for a continuous period of 21 days
or in circumstances which show that he has the intention of not returning to his duty shall be
deemed to have deserted, and shall be guilty of an offence and shall be liable on conviction to
imprisonment for a term not exceeding twelve months.

Referring to the situation given, John who did not report himself for a week by properly apply
for leave and unreachable by his superior is said to have committed desertion. Due to the fact
that John has no intention of returning and informing his superior with regards to his leave, he
shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding
twelve months.

In conclusion, it is high likelihood that John as police has committed desertion under Police Act
1967.

DIF ISSUE – s86(3) – disciplinary authority

S86 of PA 1967 – Desertion:

(3) Where a person has been convicted under this section, the Disciplinary Authority may
direct that all arrears of pay due to such person be forfeited. – can exclude

Hence, if John is convicted under S86, he shall be liable on conviction to imprisonment for a
term not exceeding twelve months, and the Disciplinary Authority may direct that all arrears
of pay due to such person be forfeited. – try to not include

Conclusion, it is most likely that John has committed the offence of desertion under S86 of the
PA 1967.
ILAC: whether can host assembly according to PAA

Can ans essay format also – but must discuss on key phrases

I- The issue is whether Mr. Right can hold an assembly rightfully in Melaka.

Whether Mr Right can organise a talk in Malaysia according to the FC

Whether it’s possible for Mr Right to organise the talk according to PAA2012

MDM ANS

Whether mr right can organise a talk in Mlaysia

Art 10 fc – mr right personal liberty is guaranteed under art 5, however such a liberty is restricted
by laws enacted by parliament due to phrase save in accordance with law

This art 5(1) is applicable to non citizens as well

Fact – q is silent as to whether mr right is citizen or non citizen

Art 5 is applicable to non-citizen, even if mr right is non-citizen, he has personal liberty to

organise an assembly in MY however such a right is subject to law and legislation ie the PAA
2012

Then elaborate on PAA2012

Cases for art 5(1) – PP v Yee Kip Seng, Anwar v PP – briefly touch on principle/judgement

Does he have freedom of speech and expression? – art 10 1 a only applicable to citizen – discuss
two routes whether he is citizen or not – if yes, has right, if no, no right
Talk abt art 10 2 a – restrictions can come in – empower parliament to enact legislation to restrict
freedom of speech and expression – relevant legislation is such as eg sedition act – talk abt 8
grounds under art 10 2 a – only use applicable (security and federation and public order) –
discuss and relate to the Manilla incident – in AP: due to what happened in manila, the
Malaysian police may not allow mr right to organise an assembly in MY and this is because
there is a possibility that mr right might say smt seditious – relate to seditious act and raises
disaffection among Malaysian public – as a result, his assembly may threaten the security and
public order of Malaysia

Art 10 1 b of FC – applicable to citizen only – right to assemble peacefully and without arms –
large crowd is a assembly – talk abt if he citizen and if he not

10 2 b – 2 grounds – security and public order – cite case chai choon – relate to manilla incident
and art 10 1 b and 10 2 b – due to manilla incident, police may not allow him to organise in MY
as possibility that assembly may be a threat to security and order in MY – same thing that
happened in manilla might happen in MY if he organises assembly in MY – relate to PAA 2012
S15 whr police can impose restrictions to assembly – if the police allow mr right to organise
assembly provided he is a citizen of MY and police allowed him to organise assembly in melaka,
police is empowered to impose restrictions for his assembly under s15 of paa 2012 so that police
cld monitor and assert control towards his assembly to avoid the incident that occurred in manilla
from occurring in MY

PAA 2012 – s27 of the PA has been repealed and replaced by PAA 2012. [never cite and apply
s27 of PA bc no longer applicable] – s4(1) (a) of paa 2012 shall not extend to a non-citizen –
discuss two routes if he citizen or nah – if he insists to do so he would have committed an
offence under s4(2)(a) under paa 2012

Conclusion – it is probably that (be flexible) if mr right is a citizen, then there is a possibility that
he has right to organise assembly under fc and paa 2012 however if he is not a citizen, it is not
possible for him to organise an assembly in Malaysia

JAYSON ANS

L- According to the Article 10 (1) of the Federal Constitution (“FC”), subject to Clauses (2), (3)
and (4), (a) every citizen has the right to freedom of speech and expression; (b) all citizens have
the right to assemble peaceably and without arms. The restrictions are provided in Article 10 (2)
of the FC where the parliament may by law impose (a) on the rights conferred by paragraph (a)
of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security
of the Federation or any part thereof, friendly relations with other countries, public order or
morality and restrictions designed to protect the privileges of Parliament or of any Legislative
Assembly or to provide against contempt of court, defamation, or incitement to any offence; (b)
on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or
expedient in the interest of the security of the Federation or any part thereof or public order.

- Determine whether Mr Right is a citizen – Arts 10 is applicable to citizens only

- Important info is not provided, hence never assume in law exam – provide two alternative
routes – discuss both possibilities
- If not citizen, he has no right to organise an assembly in Malaysia
- However is he is a citizen, yes he has right bt talk abt Art 10 2 b abt restrictions
- Then go into PAA

S 27(1) of Police Act (“PA”) 1967 provides that the police have the power to regulate assemblies
and meetings in public places and may prescribe the time at which such assemblies and meetings
may be held. In S 27(2) of PA 1967, any person intending to convene or collect any assembly or
meeting or to form a procession in any public place aforesaid, shall before convening, collecting
or forming such assembly, meeting or procession make an application for a licence from the
OCPD, and if such police officer is satisfied that the assembly, meeting or procession is not
likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a
disturbance of the peace, he shall issue a licence that may prescribe specifying the name of the
licensee and defining the conditions upon which such assembly, meeting or procession is
permitted: Provided that such police officer may at any time on any ground refused, cancel such
licence. In S 27 of (2A) PA 1967, an application for a licence under subsection (2) shall be made
by an organisation or jointly by three individuals. In S27 (2B) of PA 1967, where an application
is made jointly by three individuals, the police officer to whom the application is made shall
refuse the application if he is satisfied that the assembly, meeting or procession for which a
licence is applied is in actual fact intended to be convened, collected or formed by an
organisation. In S 27 of (2C) PA 1967, where an application is made jointly by three individuals,
the police officer issuing the licence shall specify in the licence, the names of those persons as
licensees. In S 27 (2D) of PA 1967, no licence shall be issued under subsection (2) on the
application of an organisation which is not registered or otherwise recognised under any law in
force in Malaysia. In S 27(4A) of PA 1967, where any condition of a licence issued under the
provisions of subsection (2) is contravened, the licensees shall be guilty of an offence. In S 27(5)
of PA 1967, Any assembly, meeting or procession which takes place without a licence issued
under subsection (2); or in which three or more persons taking part neglect or refuse to obey any
order given under s 27 (1) or s 27(3), shall deemed to be an unlawful assembly, and all persons
attending, found at or taking part in such assembly, meeting or procession which no licence has
been issued, shall be guilty of an offence. S 27(5A) of PA 1967 stipulates that in any prosecution
for an offence under s 27 (5), it shall not be a defence that the person charged did not know that
the assembly, meeting or procession was an unlawful assembly or did not know of the facts or
circumstances which made the assembly, meeting or procession an unlawful assembly. S 27(5B)
of PA 1967 provides that in any prosecution for an offence under s 27 (5), it shall be a defence
that the presence of the person charged came about through innocent circumstances and that he
had no intention to be otherwise associated with the assembly, meeting or procession. S 27(5C)
of PA 1967 sets out that if a person does not take part in such unlawful assembly, he has to prove
that he did not know such assembly is to take place. If he knew, had to prove that he had taken
reasonable steps to prevent it. If no took steps to prevent it, he publicly objected or dissociated
himself. In S 27(6) of PA 1967, any police officer may, without warrant, arrest any person
reasonably suspected of committing any offence under this section. In S 27(7) of PA 1967, any
person aggrieved by the refusal of the OCPD to issue a licence under s 27(2) may within 48
hours of such refusal appeal in writing to the Commissioner or Chief Police Officer; and the
decision of the said Commissioner or Chief Police Officer thereon shall be final. In S 27(8) of
PA 1967, any person who is guilty of an offence under this section shall be liable on conviction
to a fine of not less than two thousand ringgit and not more than ten thousand ringgit and
imprisonment for a term not exceeding 1 year.

In S 4(1) of Peaceful Assembly Act (“PAA”) 2012, the right to organize an assembly or
participate in an assembly peaceably and without arms under this Act shall not extend to
following: (a) a non-citizen: (b) an assembly held at any prohibited place and within fifty metres
from the limit of the prohibited place: (d) in relation to the organization of an assembly, a person
below the age of twenty-one years; and (e) in relation to the participation in an assembly other
than an assembly specified in the Second Schedule, a child. In S 4(2) of PAA 2012, person
commits an offence if (a) being a non-citizen, he organizes or participates in an assembly; (b) he
organizes or participates in an assembly held at any prohibited place and within fifty metres from
the limit of the prohibited place; (c) (Deleted by Act A1600); (d) being a person below the age of
twenty-one years, he organizes an assembly; (e) being a child, he participates in an assembly
other than an assembly specified in the Second Schedule; or (f) he recruits or brings a child to an
assembly or allows a child to attend an assembly other than an assembly specified in the Second
Schedule. S 9(1) of PAA 2012: No requirement for a licence, but organisers of assemblies must
notify the OCPD 5 days before the assembly. S 9(5) of PAA 2012 stipulates that a person
contravenes S 9(1) shall be liable to a fine not exceeding 10 thousand ringgits. S 10 of PAA 2012
provides that notification shall be in form as stated in 4th Schedule, signed by organizer,
accompanied by a copy of consent of owner of the place of assembly and may accompanied by
any additional document which are the name, address of the organizer. Then, S 11 of PAA 2012
states that the assembly’s organizer, other than religious assembly or a funeral procession or an
assembly held at a designated place of assembly, shall obtain consent of the owner/occupier of
the place of assembly. S 14 of PAA 2012 provides that (1) OCPD must respond the notification
in 3 days, (2) If the OCPD does not respond, the assembly shall proceed.

A- When we apply Article 10 (1) of the Federal Constitution (“FC”) and Article 10 (2) of the FC
to the current case, subject to Clauses (2), (3) and (4), if Mr. Right is a citizen, he has the right to
freedom of speech and expression and he has the right to assemble by holding a talk peaceably
and without arms. However, if the speech given by him in his talk is contravened on 8 grounds
which are (1) security of the Federation, (2) friendly relations with other countries, (3) public
order, (4) morality, (5) privileges of Parliament or Legislative Assembly, (6) contempt of Court,
(7) defamation and (8) incitement to any offence such as causing disharmony, disunity on
grounds of religion as provided in Section 298A of the Penal Code, then the talk is prohibited to
be organised.
When applying S 27(1) of Police Act (“PA”) 1967 to the current facts, Mr. Right who is
proposing to hold a talk in Melaka should know that the police have the power to regulate the
talk in public places and may prescribe the time at which his talk may be held. Applying S 27(2)
of PA 1967, Mr. Right is proposing to hold a talk in Melaka, if he intends to convene or collect a
talk, he shall before convening, collecting or forming the talk, make an application for a licence
from the OCPD, and if such police officer is satisfied that the talk is not likely to be prejudicial
to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the
peace, he shall issue a licence that may prescribe specifying the name of the licensee which is
Mr. Right and defining the conditions upon which such talk is permitted: But, Mr. Right also
should bear in mind that such police officer may at any time on any ground refused, cancel such
licence. When we apply S 27 of (2A) PA 1967, Mr. Right can make an application for a licence
to hold a talk in Melaka under subsection (2), the application can be made by an organisation or
jointly by three individuals. When we apply S 27 (2B) of PA 1967, if Mr. Right’s application is
made jointly by three individuals, the police officer to whom the application is made shall refuse
the application if he is satisfied that the talk for which a licence is applied is in actual fact
intended to be convened, collected or formed by an organisation. Applying S 27 of (2C) PA
1967, if Mr. Right’s application is made jointly by three individuals, the police officer issuing the
licence shall specify in the licence, the names of those persons as licensees including Mr. Right.
When we apply S 27 (2D) of PA 1967, if Mr. Right is applying for license to hold a talk by
organisation, if his organisation is not registered or otherwise recognised under any law in force
in Malaysia, no licence shall be issued under subsection (2) on his. When we apply S 27(4A) of
PA 1967, where any condition of a licence issued under the provisions of subsection (2) is
contravened, the licensees which is Mr. Right shall be guilty of an offence. When applying S
27(5) of PA 1967 to the current situation, Mr. Right’s talk which takes place without a licence
issued under subsection (2); or in which three or more persons taking part neglect or refuse to
obey any order given under s 27 (1) or s 27(3), shall deemed to be an unlawful talk, and the 500
invited participants attending, found at or taking part in such talk which no licence has been
issued, shall be guilty of an offence. When we apply S 27(5A) of PA 1967, in any prosecution
for an offence under s 27 (5), Mr. Right cannot defence that he is charged did not know that the
talk was an unlawful one or did not know of the facts or circumstances which made the talk to be
unlawful. When we apply S 27(5B) of PA 1967, in any prosecution for an offence under s 27 (5),
the presence of the person who attends to Mr. Right’s talk in Melaka and who is charged which
came about through innocent circumstances and that he had no intention to be otherwise
associated with the talk can be a defence. When we apply S 27(5C) of PA 1967, if a person
claims that he does not take part in Mr. Right’s unlawful talk if we assume Mr. Right’s assembly
to be unlawful, he had to prove that he did not know the assembly is to be taken place. If he
knows, had to prove that he had taken reasonable step to prevent. If no took step to prevent, he is
publicly objected or dissociated himself. When applying S 27(6) of PA 1967 to the current facts,
any police officer may, without warrant, arrest Mr. Right or whoever attends to his assembly if
the person is reasonably suspected of committing any offence under this section. Applying S
27(7) of PA 1967, if Mr. Right aggrieved by the refusal of the OCPD to issue a licence under s
27(2) may within 48 hours of such refusal appeal in writing to the Commissioner or Chief Police
Officer; and the decision of the said Commissioner or Chief Police Officer thereon shall be final.
When we apply S 27(8) of PA 1967, any person who attends to Mr. Right’s talk and including
Mr. Right himself, if he is guilty of an offence under this section, he shall be liable on conviction
to a fine of not less than two thousand ringgit and not more than ten thousand ringgit and
imprisonment for a term not exceeding 1 year.

When we apply S 4(1) of Peaceful Assembly Act (“PAA”) 2012 to the current facts, Mr. Right
can only organize a talk peaceably and without arms under this Act if he is not a non-citizen, his
talk is not held at any prohibited place and is held within fifty metres from the limit of the
prohibited place, in relation to the organization of Mr. Right’s talk, whoever is below the age of
twenty-one years cannot attend to Mr. Right’s talk and in relation to the participation in Mr.
Right’s talk other than a talk specified in the Second Schedule, a child. Next, when applying S
4(2) of PAA 2012, Mr. Right will be considered as commit an offence if he does not follow the
mentioned requirements; or if he recruits or brings a child to his talk or allows a child to attend
his talk which is other than a talk specified in the Second Schedule. Then, applying S 9(1) of
PAA 2012 and S 9(5) of PAA 2012 to the current case, Mr. Right does not need to apply for
license, but he as the organiser of his talk must notify the OCPD 5 days before the talk and if he
does not do so, he shall be liable to a fine not exceeding 10 thousand ringgits. Moreover, when
we apply S 10 of PAA 2012, When Mr. Right make notification, it shall be in form as stated in
4th Schedule, signed by himself, accompanied by a copy of consent of owner of the place of his
talk and may accompanied by any additional document which are Mr. Right’s name and address.
Then, applying S 11 of PAA 2012 to the current situation, Mr. Right must obtain consent of the
owner of the place where he is going to hold the talk if the talk is not a religious talk or a funeral
procession or a talk held at a designated place of assembly. Also, when we apply S 14 of PAA
2012, the OCPD who has received Mr. Right’s notification must respond the notification in 3
days, if the OCPD does not respond, Mr. Right’s talk shall proceed and the OCPD may impose
restrictions which relating to the place, time, manner, conduct payment on Mr. Right’s talk.

C- As a conclusion, Mr. Right can hold a talk rightfully in Melaka.

1
10 1 a, 10 1 b
AP -

IS: change in venue – whether can still host assembly

Whether Amir’s decision in remaining to execute the rally in State Square after the change of the
venue cited by the Police was lawful?

s.27, s.27(1), s.27(2), s.27(2D), s.27(4), s.27(4A), s.27(5) of PA 1967, s.15(1) and S.16 PAA 2012
S27 allows the police to maintain public order while S27(1) any Officer in Charge of a Police District or
any police officer duly authorized in writing by him may direct, in such manner as he may deem fit, the
conduct in public places in such Police District of all assemblies, meetings and processions, whether of
persons or of vehicles and may prescribe the route by, and the time at, which such assemblies or meetings
may be held or such procession may pass.

Applying the law to the current case, as stated under S.27(2), the police have already cite the change of
venue to Amir after rejecting Amir’s proposal upon having the rally in State Square. The police rejected
his application and suggested him to have an assembly in Stadium Gelora. Basically, since Amir rejected
the suggestion made by the police and the police have rejected his proposal on having the assembly in
State square, there was no proper application of license being obtained by Amir to continue his rally as
stated under s.27(2D) because, the police was not statisfied with his proposal. Yet Amir refused to make a
new proposal to obtain license from the police following his instruction on having the rally in Stadium
Gelora on the change of venue. So, this makes the assembly organizing by Amir unlawful according to
the provision of S.27(5). If this is the case, then under s.27(4), any person who disobeys any order given
under the provisions of subsection (1) or subsection (3) shall be guilty of an offence. As such in this case,
it is Amir. S.27(4A) also states that where any condition of a license issued under the provisions of
subsection (2) is contravened, the licensees shall be guilty of an offence. In this case Amir had
contravened the condition prescribed by the police officer upon the suggestion to change the venue of the
rally. In addition to this, s.15(1) of PAA 2012 also stated that OCPD may impose restrictions such as
place,time, manner, conduct, etc as in this case, the police suggested the change of venue which was not
followed by Amir. s.16 of PAA 2012 mentioned can appeal against restrictions to minister within 48hrs.
Similarly in s.27(7) of PA 1967, any person who is unsatisfied with refusal of the OCPD many issue a
license to the chief police officer within 48 hours. However, Amir did not appeal against the restriction
suggested by the police but still carried our his rally in State Square.

As a conclusion to this, Amir’s conduct of having the rally was unlawful.

IS: whether can arrest – yes – unlawful assembly

Whether the police has power to arrest Amir and Muthu upon the assembly they organized?

s.19, s.20(1), s.20(2), s.27, s.27(2), s.27(3), s.27(4), s.27(4A), s.27(6) of PA 1967, s.20(1), s.21(1), s.21(2)
ofPAA2012

Firtsly, s.19 states that every police officer, extra officer and watch constable shall, for the purposes of
this Act, be deemed to be always on duty when required to act as such and shall perform the duties and
exercise the powers granted to him under this Act or any other law at any place in Malaysia where he may
be doing duty. S20 (1) also stated that every police officer shall perform such duties and exercise such
powers as are by law imposed or conferred upon a police officer, and shall obey all lawful directions in
respect of the execution of his office which he may from time to time receive from his superior officers in
the Force. So, this shows the general powers of police towards their duty. S27 allows the police to
maintain public order while s.27(1) states that any Officer in Charge of a Police District or any police
officer duly authorized in writing by him may direct, in such manner as he may deem fit, the conduct in
public places in such Police District of all assemblies, meetings and processions, whether of persons or of
vehicles and may prescribe the route by, and the time at, which such assemblies or meetings may be held
or such procession may pass. In this case, the police officer has already refused the proposal given by
Amir on the ground that the venue was not suitable. However, Amir refused to follow his suggestion and
still remained orgainizing his rally in State Square. So, since Amir didn’t follow the instructions made by
the police office, under s.27(3) any police officer may stop any assembly, meeting or procession in
respect of which a license has not been issued or having been issued was subsequently cancelled under
subsection (2) or which contravenes any of the conditions of any license issued in respect thereof under
that subsection; and any such police officer may order the persons comprising such assembly, meeting or
procession to disperse, s.27(4) also any person who disobeys any order given under the provisions of
subsection (1) or subsection (3) shall be guilty of an offence and s.27(4A) where any condition of a
license issued under the provisions of subsection (2) is contravened, the licensees shall be guilty of an
offence. According to this sections, it has given the police the power to stop the assembly which was
carried out by Amir without the satisfaction of the police upon his proposal on the venue of his rally
organization. With this, s.27(6) any police officer may, without warrant, arrest any person reasonably
suspected of committing any offence under this section. This provisions are provided under the Police
Act, however under the PAA 2012, s.20(1) also stated that police can arrest without warrant, arrest any
organizer or participant who is not comply with restrictions, possession of arms and brings child. In this
case, we can see clearly that, in Amir’s rally, the supporters brought their family members including their
kids as previously encouraged by the organizer. This had already contradict to the provision stated.
Lastly, s.21(1) also stated that police have power to disperse if the assembly is carried out in a prohibited
place or within 50m of prohibited place, street protest, promote ill will among public, commit offence
under any written law, do not comply with restrictions and participant engaging violence while s.21(2)
May disperse by using all reasonable force. So according to the current situation Amir’s assembly was
already considered to be in a prohibited place plus with the Muthu’s assembly was just 30m away from
Amir’s assembly which is still considered to be prohibited. In the assembly as well, there were already
promoting of ill will when the rally begun with fiery speech by Amir asking Brandon to step down. Even
in Muthu’s assemby, he was insulting and harrassing Amir but when remarks from James Bond appeared,
it created a havoc in Muthu’s assembly where the supporters broke the police barricade and started hitting
Amir’s supproters so this indrectly has created a situation of violence between them which contradicts to
the provision.

As a conclusion, police have power to arrest Amir and Muthu for unlawful action in the assembly.

IS: whether arrest supporters is lawful

Whether Muthu’s supporters arrest by the police was lawful?

s.27(5A), s.27(5B), s.27(5C), s.27(6)

So, s.27(5) any assembly, meeting or procession which takes place without a license issued under
subsection (2); or in which three or more persons taking part neglect or refuse to obey any order given
under the provisions of subsection (1) or subsection (3), shall be deemed to be an unlawful assembly, and
all persons attending, found at or taking part in such assembly, meeting or procession and, in the case of
an assembly, meeting or procession for which no license has been issued, all persons taking part or
concerned in convening, collecting or directing such assembly, meeting or procession, shall be guilty of
an offence. S.27(5A) also stated that in any prosecution for an offence under subsection (5) of attending,
being found at or taking part in an assembly, meeting or procession which is an unlawful assembly, it
shall not be a defense that the person charged did not know that the assembly, meeting or procession was
an unlawful assembly or did not know of the facts or circumstances which made the assembly, meeting or
procession an unlawful assembly. S.27(5B) also stated that any prosecution for an offence under
subsection (5) of attending or being found at an assembly, meeting or procession which is an unlawful
assembly, it shall be a defense that the presence of the person charged came about through innocent
circumstances and that he had no intention to be otherwise associated with the assembly, meeting or
procession. So, applying the law to the current issue, since the assembly was already promoting ill will
plus family members who has brought their children together has contradicted to the provision because if
they knew that the assembly is unlawful by this characters, they should have avoided but they didn’t
instead the even went against Amir’s supporters by hitting them so this gave the police powers to arrest
them under s.27(6) as it was unlawful

Prob Question – PAA – unlawful arrests

IS: whether assembly is unlawful – naur

The first issue is whether the organise of assembly by Raj and Ali has violated the Police Act
1967 and Peaceful Assembly Act 2012.

Initially, the statutory provisions that governs assembly is Section 27 of Police Act 1967.
However, such law has been repealed and replaced by the new law which is Peaceful Assembly
Act 2012 (PAA 2012). Based on Section 9(1) of PAA, it is provided that there shall be no
requirement for obtaining a licence, but organisers of assemblies must notify the OCPD 5 days
before the assembly. While, Section 14 PAA 2012 provides that the OCPD shall respond to the
notification of assembly within 5 days of the receipt of the notification and shall inform the
restrictions and conditions imposed under S 15 of PAA, if any. If the OCPD did not respond, the
assembly shall proceed.

With regards to the situation above, Raj and Ali have the freedom to assemble peaceably and
without arms as enshrined in Art 10(1)(b) of FC. However, in order to organise an assembly, Raj
and Ali are bound to notify the OCPD 5 days before the assembly. In the current situation, Raj
and Ali hgave notified the police department on 5th October 2019 which apprxoimately of 15
days before thr running of assembly. Hence, since Raj and Ali have notified the police
department 15 days prior to the assembly which

satisfies the requirement of Section 9(1) of PAA, thus, the organise of assembly by Raj and Ali
shall be lawful and constitutional.

However, the statement of police in alleging Ali and Raj hjave committed an offence of
organising an illegal assembly without police permit and without consent of the relevant
authority that manages the assembly venue is unreasonable and unconstitutional. This is because
Raj and Ali have notified the police department 15 days prior to the assembly and in the event
that Raj and Ali have not received any respond or notification from the police, the assembly shall
proceed pursuant to Section 14 of PAA. Therefore, since Ali and Raj have satisfied the
requirement of Section 9 in notifying the police and the police have not respond on Ali and Raj’s
notification, the alleged of the police officer that Ali and Raj had committed an offence of
organising an illegal assembly without police permit had been misled and instead, the assembly
hold by Ali and Raj shall be constitutional.

S.11 of PAA stated that other than religious assembly, the organiser must obtain consent of the
owner of the place.
Referring to the facts given, due to the facts is silent on the matter of Raj and Ali in obtaining the
consent of the owner of the place, assuming Raj and Ali have obtained the consent of the owner
in organising the rally, the allegation of police that Ali and Raj had committed an offence of
organising an illegal assembly without the consent of owner of the place had been mislead and
instead the assembly organised is held in a constitutional way.

In conclusion, it is highly likely that the organise of assembly by Raj and Ali is lawful pursuant
to the Police Act 1967 and Peaceful Assembly Act 2012.

IS: whether police can disperse according to PAA

The second issue is whether the police officers has the jurisdiction in dispersing the assembly
pursuant to Police Act 1967 and Peaceful Assembly Act 2012.

Section 8 of PAA connotes that a police officer may take such measures as he deems necessary
to ensure the orderly conduct of an assembly in accordance with this Act and any other written
law.

In applying Section 8 of PAA, to ensure the orderly conduct of an assembly, the police officer
may take measures when there was a riot between the participants of the assembly.

According to Section 21(1)(b) of PAA, a police officer may issue an order to disperse if any
person at the assembly commites any offence under the written law. Moreover, Section 21(1)(f)
of PAA connotes that a police officer may issue an order to disperse if the participants are
engaging in, or about to engages in unlawful or violence towards persons or property. Moreover,
Section 21(2) of PAA provides that the police in exercising the power to disperse an assembly
may use all reasonable force.

In relation to the siatution above, while Yap was giving his speech at the assembly, two groups
of participants started fighting with each other causing chaos to the assembly. As a result of the
fighting which is an offence of affray under Section 159 and 160 of Penal Code, the assembly
organised by Yap and Raj has no longer in the condition of peaceful assembly, thus, pursuant to
Section 21(1)(b) of PAA, the police may disperse the assembly on the grounds the particpants
are engaged in an activity prohibitted under the written law of Section 159 and 160 of Penal
Code. Besides, due to the fact that, during the assembly, the participants are engaging in
unlawful or violence towards persons which is fighting, thus, the police may disperse the
assembly pursuant to Section 21(1)(f) of PAA.

In conclusion, it is highly likely that the police officers has the jurisdiction in dispersing the
assembly pursuant to Police Act 1967 and Peaceful Assembly Act 2012.

IS: whether arrest by force is constitutional

The third issue is whether the arrest of Yap, Raj and Ali by the police force is constitutional
through Police Act 1967 and Peaceful Assembly Act 2012.
According to Section 20 of PAA, a police officer may, without warrant, arrest any organizer or
participant (a) who, during an assembly, refuses or fails to comply with any restrictions and
conditions under section 15.

Referring to the situation above, the particpants had failed to comply with the restrictions and
conditions under section 15 namely on the conduct of participants. Thus, in pursuant to Section
20 (a) of PAA, the police shall have the rights to arrest the participants who failed to comply
with the restriction and the law. However, assuming Yap who was giving the speech did not
promote ill will and hostality, Yap, Ali and Raj who were arrested on the ground that they had
committed an offence of organising an illegal assembly without police permit and without
consent of the venue’s owner were unconstitutional as Raj and Ali had notified the police 15
days prior to the assembly. Therefore, it can be seen that the police force had abused their
powers by making unlawful arrests and Yap, Raj and Ali shall be released on the grounds that
they have not violated Section 20 of PAA namely to comply the restriction of assembly as the
one who violated such provisions are the participants and Section 9 of PAA which is to notify
the OCPD 5 days prior to the assembly.

In conclusion, it is high likelihood that the arrest of Yap, Raj and Ali by the police force is
unconstitutional through Police Act 1967 and Peaceful Assembly Act 2012.

CHAPTER 3 – FUNDAMENTAL LIBERTIES

Critically evaluate the phrase ‘save in accordance with law’ under

Article 5 of the Federal Constitution.
Focus on art 5(1)
Intro – briefly explain art 5(1) of FC – guarantees that every person has the personal liberty
protected unless law states otherwise – in simple terms is unless law states otherwise
2 limbs – upholds right to freedom/personal liberty – exception – situations whr deprivation is
allowed – that’s whr the save in accordance etc comes in – even though we have the right to
freedom, must abide by laws enacted by parliament is it restricts certain freedom
Interpret law – wide, ambiguous – 2 interpretations by Andrew harding
1. Law – by parliament
2. Law – natural justice
When law is vague/unclear – ct has duty to interpret law in favour of subject – which is citizens (
when interpeeting art 5(1) )
Talk about position in Malaysia – when parm enacts law – would ct question morality of law?
Based on cases, explain that the situation is that cts are not willing to ques morality of law –
consider themselves as having role of administering law as it is – cts do not think that they are in
the position to question the law – whatever law enacted by parliament, ct must abide by and
follow nd apply in cases
PP v Yee
Chee
AG MY v Chao
Dato Seri Anwar Ibrahim v PP
- Cases to explain current situation in MY
Several cases – ct upheld natural justice
- Andrew – hw cts should interpret art 5(1) – strictly, then lean infavour of subject - but FC
later reversed decision
- Ong – rule passed must be in line w natural justice
Conclu: in a nutshell, art 5(1) of FC provides significant right to citizens/ allows parliament to
enact laws to restrict right to freedom of citizens in Malaysia.

One of the constitutional rights guaranteed under Federal Constitution is liberty of the person.
Under Article 5 (1) of the FC, “No person shall be deprived of his life or personal liberty save in
accordance with law” which means that every person has his personal liberty protected unless the
law stated otherwise.

Article 5 (1) of Federal Constitution state that no person shall be deprived of his personal liberty
save in accordance with law. As a general rule, it is clearly found under Article 5(1) that every
person has his personal liberty protected unless the law states otherwise. This provision is very
essential to every individual.

The case of Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidik & Anor [1998] 3 MLJ 289,
was concerned with procedural fairness and the constitutional rights of a civil servant facing
dismissal. G Sri Ram JCA speaking for the Court of Appeal posited that ‘life’ under Art 5 meant
more than mere existence. Personal Liberty means a personal right not to be subjected to
imprisonment, arrest, or physical coercion, in any manner that does not admit legal justification.

Article 5(1) has two limbs which are to upholds the individual’s right to freedom and secondly it
states the situations whereby the deprivation is justified. The Article in itself lists all justified
deprivation under the phrase ... ‘save in accordance with law’. Therefore, it can be said an
individual’s liberty can only be taken away if the law allows it to be so deprived. Article 5(1) can
nevertheless be read into or implied into statutes and this principle has even been applied to
preventive detention laws under Articles 150 for emergency and Article 149 for subversion.

To interpreting the phrase “save in accordance with law”, there are 2 kinds of interpretation.
Firstly, ‘law’ could mean any statute passed by Parliament. Secondly, ‘law’ meant a higher
standard than mere statute law. Therefore, there are two possible interpretation for the word
‘law’ as stated by Andrew Harding in page 210 of the book of ‘Law, Government and the
Constitution in Malaysia’. The first possible interpretation for the word law is the statutory
provisions that are passed by the Parliament. On the other hand, there is also another possible
interpretation of the word, which is of a higher standard more than the mere statutory provision.
In this sense, the second interpretation is also incorporating the natural justice.

Under the first interpretation, it is understood that the right to liberty and life is not guaranteed if
there is an express provision that could justify such deprivation, especially detention under
Art149 and 150 of the FC. This is well illustrated in the case of Kam Teck Soon v. Timbalan
Menteri Dalam Negeri where the court held that the personal liberty provided under Art 5 of the
Federal Constitution will not be upheld in a case that is governed under the law passed under Art
149 and 150 of the Federal Constitution. With that being said, it means that whenever a person is
detained by the law passed under Art 149 or Art 150 of the Federal Constitution, the personal
liberty of the person will be at stake as it is not guaranteed under the Federal Constitution
anymore.

In the case of Aminah v Superintendent of Prison, Pengkalan Chepa Kelantan; Wan Suleiman J
state that Article 5 is clearly meant to apply to arrest under any law whatsoever in force in the
country. The view also being upheld in the case of Assa Singh v Menteri Besar of Johore.
Nevertheless according to Tun Suffian LP in the case Andrew s/o Tamboosamy v Superintendent
of Pudu Prisons; ‘ (1976) any form of detention does violence to Article 5(1) of the Constitution
and hence power given by law to detain must be construed strictly and in cases of doubt or
ambiguity the court should then lean in favour of the subject. However in Kam Teck Soon v
Timbalan Menteri Hal Ehwal Dalam Negeri; (2003) the court held that the ruling is too general
and Article 5 does not apply to laws passed under Article 149 and 150.

The next interpretation is law as a higher standard than mere statute law, which means law
passed must be in line with the rule of natural justice. It is a wider interpretation which adopts a
higher standard than mere statute law. As the interpretation made in the case of Che Ani Bin
Itam v PP whereby the Federal Court adopted the meaning given by the Privy Council in the
Singaporean case of Ong Ah Chuan v PP; where it was held the term law refers to a system of
law which incorporates those fundamental rules of natural justice that had formed part of the
common law of England and was in operation in Singapore at the commencement of the
Constitution. It would have been taken for granted by the makers of the Constitution that ‘law’
which citizens could have recourse for the protection of fundamental liberties assured to them by
the Constitution would be a system of law that did not flout those fundamental rules”

In the case of Ong Ah Chuan v Haw Tua Tau, the law mentioned could mean any law passed by
the parliament irrespective of whether such laws are morally right or otherwise. Judges in
Malaysia are not willing to question the morality of the law passed by the parliament as they feel
that they are just concerned with the administration of the law as it found in the statue book.
Furthermore, the courts also feel that although the law may be harsh, the rule of the court is only
administered the law as it stands.

In Che Ani Bin Itam; the constitutionality of mandatory life sentence under Firearms (Increased
Penalty) Act 1974 was challenged. Raja Azlan Shah LP held; such punishment was not
“arbitrary, fanciful and oppressive’.
In PP v Lau Kee Ho the Federal Court held that the death sentence under the Internal Security
Act 1960 was not contrary to Article 5(1) of Federal Constitution.

Generally, the courts in Malaysia have held the term ‘law’ in Article 5(1) does not import the
notions of due process; that the word ‘law’ in Article 5(1) is any law passed by competent
legislature in exercising its jurisdiction.

Thus in Attorney-General, Malaysia v Chiow Thiam Guan ; it was held that “the law may be
harsh but the role of the court is only to administer the law as it stands”.

Therefore, as per Ajaib Singh Judge in PP v Yee Kim Seng ; the law mentioned could mean any
law passed by Parliament, irrespective of whether such laws are morally right or otherwise.
Judges in Malaysia are not willing to question the morality of the laws passed by Parliament as
they feel that they are just ‘concerned with the administration of the law as is found in the statute
books’.

Furthermore, the court has also held that the ‘law’ stated in Art 5 of the Federal Constitution is
not including the Islamic law. In the case of Che Omar bin Che soh v. pp, the accused had been
charged for the offence of trafficking drug and was committed liable under Dangerous Firearms
Act. The punishment imposed to him was death penalty. The counsel contended that the sentence
was unconstitutional as it is going against Art 3 of the Federal Constitution which declares that
Islam is the official religion of our nation. The court rejected the claim and held that Islamic law
was not regarded as the law of the federation.

Moreover, the ‘law’ is also including any law that is passed by the parliament and the court will
not question about the morality of such law. In the case of PP v. Yee Kim Seng, the judge Ajaib
Singh held that the court will not be questioning about the morality of the law that was passed by
the parliament. This is due to the reason that the role of the court was merely to administer the
law that was provided by the statute itself, but not to question the validity or the morality of such
law despite feeling that the law was harsh.

The harshness of the law itself is not a question that will be taking into consideration by the court
before a judgement was made. Thus, the court will only enforce what that has been provided. In
the case of Dato Seri Anwar Ibrahim v. PP, the court held that the appellant is not able to make
any challenges on the continuance of operation of ordinance that was made under Art 150 of the
Federal Constitution. The court admitted that it is harsh and unjust that any question pertaining to
the Federal Constitution will be considered as a closed door for the court. Nonetheless, the court
has no jurisdiction to make any decision as the issue shall be dealt by the legislature. Therefore,
the parties who are disagreeing with the system can only express themselves through the ballot
box. Hence, regardless of what is the nature of the law, the court shall only follow what it shall
be followed.

Cases in which the court upheld natural justice and the liberty of a person that is guaranteed
under Art 5 of the Federal Constitution has been strictly upheld by the court as illustrated by
the case of Andrew s/o Tamboosamy v. Superintendent of Pudu Prison. Suffian LP in the
case has held that Art 5(1) of the Federal Constitution should be construed strictly, hence, in an
event of detention, it is apparently violating Art 5 of the Federal Constitution. Therefore, in such
case, the court shall construct the provision in a strict manner and held in favour of the subject if
the court is satisfied that there is doubt and ambiguity arose from the fact of the case.

Hence, when the law is vague or unclear, the court has the duty to interpret the law in favour of
the subject matter at hand, which is the interest of the citizens when Article 5(1) is interpreted.
The current position in Malaysia is that when Parliament enacts law, would the courts question
the morality of such laws? Based on several cases, the situation is that courts are not willing to
question the morality of law, as they consider themselves as having role of administering law as
it is. Courts do not think that they are in the position to question the law, as whatever laws
enacted by parliament, the courts are at an obligation tto abide by and follow these said laws in
cases that appear before the courts. As such, the term ‘law’ in Article 5(1) has no real impact as
far as the testing of the constitutionality of legislations is concerned. Malaysian Courts
apparently preferred literal and pedantic approach on the issue.

In a nutshell, art 5(1) of FC provides significant right to citizens/ allows parliament to enact laws
to restrict right to freedom of citizens in Malaysia.

Explain Article 5(2) of the Federal Constitution.

Support your answer with relevant authorities.

Article 5(2) states that “Where complaint is made to a High Court or any judge thereof that a
person is being unlawfully detained the court shall inquire into the complaint and, unless
satisfied that the detention is lawful, shall order him to be produced before the court and release
him.”

Basically, Art 5(2) incorporates the common law remedy of Habeas Corpus. If there is complaint
of unlawful detention, the individual has a right to be released or to be brought before a court. “A
writ of habeas corpus, also known as the great writ, is a summons with the force of a court order;
it is addressed to the custodian and demands that a prisoner be taken before the court, and that
the custodian present proof of authority, allowing the court to determine whether the custodian
has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority,
then the prisoner must be released.”

Thus, under this provision, the individual can seek habeas corpus which is a writ to command
a person to produce the detainee, with details of the detention in court.
In the case of Abdul Ghani Haroon v Ketua Polis Negara, Hishamudin J stated that the right
to apply to the High Court for a writ of habeas corpus was not a merely legal right, but also a
constitutional right available to any person who believes that he has been unlawfully detained.
However, on appeal to the Federal Court, the decision was reversed, and the court held that it
was a matter for the court to decide.
Nevertheless, in the case of Re Datuk James Wong Kim Min, it can be submitted the
decision made by the Federal Court in the case of Abdul Ghani Haroon is wrong, where the
judge stated that in a matter so fundamental and important as the liberty of the subject, strict
compliance with statutory requirements must be observed in depriving a person’s liberty. The
material provisions of the law that authorizing detention without trial must be construed strictly
and safeguards which the law deliberately provides for the protection of any citizens must be
liberally interpreted.
Based on Re Tan Sri Raja Khalid Raja Harun, the burden of proving that the detention is in
accordance with law is on the detaining authority. However, in the case of Karam Singh v
Menteri Hal Ehwal Dalam Negeri, the burden is discharged simply by the order of detention as
long as it was issued in good faith and was authentic. The onus shifts to the detainee, especially
if he alleges bad faith.
Based on Tan Sri Raja Khalid Raja Harun, the courts have the power to examine whether
the grounds disclosed by the Minister are relevant to the object of the Act. This case involved a
detention under ISA, where it was held that since the evidence did not reveal any ground which
relevant to security, the writ should issue.

In the case of Lee Kew Sang v Timbalan Menteri Hal Ehwal Dalam Negeri; Federal Courts ruled
that there are two steps to be satisfied that there is law or rule which lays down the procedural
requirement that the grounds argued for the applicant falls within the meaning
of non compliance thereof. In this case the applicant argued that the detaining authority failed to
consider whether criminal prosecution ought to be taken against him and that the ground of
detention was stale and remote. The Federal Court rejected these grounds as the power of to
prosecute was vested at the hands of the Attorney General and non-reviewable and that there was
no limitation period applicable in the circumstances.

In the case of Kok Wah Kuan v Pengarah Penjara Kajang; the applicant was found guilty and
convicted under s.302 of the PC by the High Court. However the court invoked s.97 of the Child
Act 2001 which provides for the power of YDPA to determine the applicant’s measure and to
detain at His Majesty’s pleasure. The High Court in dismissing the application for Habeas
Corpus, affirmed the long standing principle that Habeas Corpus cannot be granted to persons
who are serving sentences passed by the court of competant jurisdiction and unless the
applicant’s conviction is set aside by the power of appellate court, he is lawfully in custody,
serving lawful sentence. Thus; habeas corpus is not a means of appeals against conviction and
sentence.

To conclude, Art 5(2) is an essential provision in the Federal Constitution in ensuring the right of
a detainee to seek the right to being released, through habeus corpus. / right to be set free who
might have been illegally or unlawfully detained

Explain Article 5(3) and Article 5(4) of the Federal Constitution.

Support your answer with relevant authorities.

Art 5(3) of the Federal Constitution states that an arrested person shall be informed the
ground of arrestment as soon as possible regardless of arrestment with or without warrant. Under
the same provision, the arrestee is also allowed to consult and be defended by legal practitioner
according to his will. Art 5(3) contains two limbs which is the right to know ground of arrest and
the right to consult and defended by a legal practitioner

In the case of Aminah v. SUPERINTENDENT OF PRISON [1968] 1 MLJ 92, the phrase ‘as
soon as may be’ that has been provided by Art 5(3) of the Federal Constitution was defined by
the court as ‘as ready as it is reasonable to be justified based on the circumstances of the case’.

In the case Mohamed Ezam bin Mohd Nor v Ketua Polis Negara, Siti Norma Yaakob FJ state
that the right to counsel is inferior to the right to know the ground of arrest. In other words, the
denial of the former is not fatal to the detention.

In the case of Yit Hon Kit v Minister of Home Affairs, Malaysia & Anor, the court held that
the detention was unreasonable as there was a delay of 57 days to inform the detainee on the
ground of detention.

In the case of CHONG KIM LOY v TIMBALAN MENTERI DALAM NEGERI MALAYSIA
& ANOR, the court held that the right to be informed was merely the right to be informed on the
general ground of the detention as soon as possible. Such right was not including the right to be
informed in every single detail of the detention, and shall not necessarily be done in a strict legal
terminology. The person shall merely be provided with the information to the extent that is
sufficient for him to know that is going on such as the authority that is arresting him, and the
ground of arrest. The person shall also be given opportunity to justify and explain if there is any
misunderstanding.

However, this right can be stripped under emergency provisions. In the case of Kam Teck Soon
v Timbalan Menteri Dalam Negeri Malaysia and. Other Appeals [2003] 1 MLJ 321, the
court held that under the statutory provisions that are passed under Art 149 and Art 150 of the
Federal Constitution, the right to be informed on the ground of arrestment was not guaranteed
and available.

When an emergency is proclaimed in Malaysia, the Parliament is empowered to enact

emergency ordinances to cope with the circumstances of such emergency. Hence, when a person
is arrested under provision under ordinance, then Article 5(3) is not applicable, and such it is not
required to inform person about the reason of arrest. Thus, if Parliament enacts draconian or
unreasonable laws during emergency period and arrest citizens under such laws, people who are
arrested will be stripped of their right to know the reason for their arrest.

Uthayakumar a/l Ponnusamy v Menteri Keselamatan Dalam Negeri [2009] – HC - Suraya

Othman J - legal status of the detention has been established as legal, lawful or proper - court
cannot issue a writ of habeas corpus on whatever grounds including denial of legal representation
or denial of proper medication - mala fides of a person’s detention could not be relied on to
secure habeas corpus provided the detention was properly done according to the law

Abdul Ghani Haroon v Ketua Polis Negara [2001] – contradicted with prospective case above -
Hishammuddin Yunus J - issued habeas corpus when it could be shown that the detainee had
been intentionally and unreasonably denied access to legal representation and to family members
- denial amounted to mala fides that destroyed the legality of the detention

The Second limb of Article 5(3) is the right to counsel, which is in two stages, namely after
arrest and during judicial proceeding. During the 2nd stage, the right to a counsel is a must
as the detainee must be represented by a counsel.

In the Singaporean case of Lee Mau Seng v Minister of Home Affairs, the right to consult
and defended by a legal practitioner is available within a reasonable time of the arrest.

However, the decision in Ooi Ah Phua v Officer in Charge Criminal Investigations, Kedah &
Perlis [1975] allowing the right to counsel be given 10 days after arrest seems to have reduced as
the condition could only be imposed after the police have done their investigation. It is subject to
reasonable restrictions as to prevent interference with the course of investigations.

According to Ramli bin Salleh v PP, “It is however for the police to prove that affording the
right would impede investigations and the police must not delay or obstruct meeting with the
lawyer on arbitrary or fanciful grounds”.

In Theresa Lim Chin Chin v IGP, it was held that in order to show breach of Article 5(3),
the detainee must show that the police have, with bad faith, obstructed him from exercising his
right.

In the case of Ramli Bin Salleh v. Yahaya Bin Hashim, the court held that it is of the right of
the person who has been detained or remanded in the custody of the police authority to be
defended by a legal practitioner of the choice of his own although the investigation was yet to be
completed in pursuant to Art 5(3) of the Federal Constitution. If the police officers insist that the
person shall not be able to consult the legal practitioner of his choice, he must be able to satisfy
the court that by allowing the detainee to do so will prevent or obstruct the investigation. Or else,
the police officer is not allowed to delay or obstruct the meeting of the detainee with the lawyer
on fancy grounds.

Art 5(4) of the Federal Constitution states that an arrestee shall be produced before magistrate
within 24 hours and in absence of the order by the magistrate, the said person is not able to be
detained in custody in excess of the prescribed time frame. This is to ensure that no cruelty has
been asserted to the detainee. Such right of the detainee shall also not be delayed without a
reasonable ground. However, there are several exceptions to this provision whereby Art5(4) of
the Federal Constitution is not applicable to the detention under restricted residence law. In cases
involving detention of non-citizen, the person shall be produced before the magistrate within 14
days of the detention.
 This right is further strengthened by the Criminal Procedure Code (Amendment) Act
2006. Prior to the amendment to S.28 of CPC, police were required to produce arrested person
before a Magistrate’s Court within 24 hours after arrest. It is a common practice for the police to
make an arrest on weekends or public holidays as the holidays are discounted in computing the
period of 24 hours. The amendment of 2006 has deleted the word ‘court’ so that an accused may
be produced before a Magistrate even on a holiday or a weekend.

In the case of Loh Kooi Choon v Government of Malaysia, the appellant of the case has been
charged under Restricted Residence Enactment 1933 and during the detention, he has been
deprived of his right that is protected under Art5(4) of the Federal Constitution. Thus, he filed a
legal action to sue for damages from the police. However, his claim has been denied for 4 years
before he was finally able to appeal to the federal court. Nevertheless, in the interim of 4 years,
the Parliament has made an amendment on the article where the guarantee will not be provided
under the arrestment done under the law of Restricted Residence. The appellant contended that
the amendment is unconstitutional as it has retrospective effect that is prohibited by the Federal
Constitution itself. Due to this reason, the habeas corpus shall be provided to the appellant of the
case. The court dismissed the appeal and held that the appellant is not able to make such claim as
the Federal Constitution will in no way contravene with itself. Hence, it may be said that the
habeas corpus is not entitled by the appellant of this case.

In the case of Re Detention of R. Sivarasa (1997) 1 CLJ 471 ; KC Vohrah J; the detention of a
person by the police beyond 24 hours after his arrest must be done in strict compliance with
Section 117 of the Criminal Procedure Code so that the decision to extend the detention is
virtually made by the judiciary and not by the executive. The court held that whenever a person
has been detained by authority, the liberty of the person will be at stake.

Thus, Art 5(4) of the Federal Constitution is imposing a heavy judicial duty towards the
magistrate to make decision on whether to further detain the person or to release him thereof. For
instance, the police as detaining authority will be deterred from doing anything that might be
abusive towards the detainee. Hence, in the event if they abuse detainee and produce such
injured detainee in front of magistrate, the magistrate will then question the police. This shows
that Art 5(4) is a deterrence provision.

To conclude, arts 5(3) and 5(4) play a vital role in the preservation of the rights of an arrested
person.

If PROB QUESTION – right to legal counsel – check desktop studocu

Articles 5(1) to (4)
Exceptions, limitations, restrictions – must be explained – esp concerning fundamental liberties
Explain operations of articles – explain article, explain exceptions/limitations/restrictions – save
in accordance with law – explain two interpretations of law
Must cite cases – each provision must include cases to explain further
Ans can be quite lengthy – provide as much as possible for online exam

Article 5(1-4)

Article 5 of Federal Constitution is the most fundamental of all fundamental rights

provisions which covers the life and personal liberty of the citizens. It is in accordance with the
principles of rule of law, specifically established by A.V. Dicey in his first postulate that no men
or women should be punishable in body or goods except for a distinct breach of law established
by the ordinary courts of land. It means that punishment can only be given upon trial and
sentence after it has been proved that the offence of the accused with sufficient evident. In fact,
this postulate incorporates the principles in both Articles 5 and 13 of Federal Constitution.
Similarly, Article 5(1) of Federal Constitution ordains that “no person shall be deprived of his
life or personal liberty save in accordance with law”. However, according to Article 5(5) of
Federal Constitution, it is only applicable to citizens, but not the enemy alien.
According to Article 5(1) of Federal Constitution, it can be interpreted as a general rule
that every person has his personal liberty protected unless the law states otherwise. Nevertheless,
it can be divided into two limbs, whereby it upholds the individual’s right to freedom, while on
the other hand, it provides that the deprivation must be justified as save in accordance with law.
Under the first limb, the term ‘person’ refers to citizens as well as non-citizens which
may even include artificial persons like ships or aircraft on whom the law can confer legal
personality. In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor (1996) 1 MLJ
261, Gopal Sri Ram held that protection to life not only means acceptable standards of clothing,
nutrition and shelter, but also includes protections against torture and right to a fair livelihood. It
also includes the notion that one must be protected from bodily harm and suffering as held in
Public Prosecutor v Tengku Mahmood Iskandar & Anor (1973) 1 MLJ 128. In Lembaga
Tatatertib Perkihdmatan Awam v Utra Badi (2000) 3 MLJ 281, it was held that the right to life
includes right to livelihood which is further emphasized in Nor Anak Nyawai v Borneo Pulp
(2001) 6 MLJ 241 to include native customary rights as part of the right. As for personal liberty,
it does not merely mean liberty of physical body, but means much more than a right not to be
subjected to unlawful arrest, imprisonment or other physical coercion. Unlike India, the right to
travel abroad is not a right to personal liberty in Malaysia, which can be seen in Government v
Loh Wai Kong (1979) 2 MLJ 33 that ‘personal liberty’ merely means ‘liberty relating to or
concerning the body of the individual’. The concept of personal liberty is narrow which does not
extend to a speedy and expeditious trial, nor does it permit kissing or hugging in a public park, as
seen in Ooi Kean Thong, Siow Ai Wei v Pendakwa Raya (2006) 3 MLJ 389. A broader approach
was taken in Lim Hai Sun (1992) 3 CLJ 1602 whereby an order to reside at a drug rehabilitation
centre was held to constitute a denial of liberty. Furthermore, in Sugumar Balakrishnan v
Pengarah Imigresen Negeri Sabah (1998) 3 MLJ 289, it was held that Article 5(1) includes a
person’s right to seek judicial review. In Re JG, JG v Pengarah Jabatan Pendaftaran (2006) 1
MLJ 90, it was held that personal liberty includes a person’s right to change reference to her
gender in her Mykad after successful reassignment surgery from male to female. In Public
Prosecutor v Gan Boon Aun & Anor [2012] MLJU 1225, the court held that the failure to prove
against the accused beyond reasonable doubt abrogates the presumption of innocence protected
and enshrined in Article 5(1) of Federal Constitution.
Despite the right to life enjoyed by the citizens, under the exception is provided under
second limb, whereby its deprivation is justified as long as it is in accordance with law. It
means that any arrest of a person must be derived from a valid law. In Andrew s/o Tamboosamy
v Superintendent of Pudu Prisons (1976) 2 MLJ 156, Suffian LP said that any form of detention
does violence to Article 5(1) of Federal Constitution under any law must be construed strictly by
the court whereby it should be leaned in favour of the subject in cases of doubt or ambiguity of
the court. It means that a person can be detained under powers against subversion and emergency
power under Articles 149 and 150 Federal Constitution respectively as well as any preventive
detention laws passed under these both provisions as well as under the ordinary criminal law. In
PP v Koh Yoke Koon (1988) 2 MLJ 301 and Tan Tek Seng v Suruhanjaya Perkhidmatan
Pendidikan & Anor (1996) 1 MLJ 261, it was affirmed that ‘law’ refers to both substantive and
procedural law so that a detention in violation of procedures will be a nullity. In Aminah v
Superintendent of Prison (1968) 1 MLJ 92, Article 5 of the Federal Constitution means to apply
arrest according to any law which is enforceable in Malaysia. In Chong Kim Loy v Timbalan
Menteri Dalam Negeri Malaysia & Anor [1989] 3 MLJ 121 and Kam Teck Soon v Timbalan
Menteri Dalam Negeri Malaysia & Ors And Other Appeals [2003] 1 MLJ 321, it was stressed
that no provision of any law promulgated in pursuance of Articles 149 and 150 of Federal
Constitution shall be invalid on the ground of any inconsistency with Article 5 of Federal
Constitution.
The phrase of ‘save in accordance with law’ in this context refers to any law in Malaysia,
which is vague. Arisen from this issue, there are two possibilities of interpretations. Firstly, ‘law’
could mean any statute passed by the Parliament, so that no statute can be in contrary with
Article 5(1) of Federal Constitution, or ‘lex’. Secondly, ‘law’ could mean a higher standard than
mere statute law which is the fundamental requirements of due process or natural justice, or ‘jus
and recht’. Under the first interpretation, it means that law must allow you to defend and justify
yourself whereby it adopts the literal interpretation on the phrase ‘save in accordance with law’.
In Che Ani bin Itam v Public Prosecutor (1984) 1 MLJ 113, Raja Azlan Shah LP held that any
law passed by the Parliament to limit a person’s liberty is valid which can be imposed despite its
immorality. In Public Prosecutor v Yee Kim Seng (1983) 1 MLJ 252, Ajaib Singh J expressed
the judicial policy that the courts are concerned with the administration of law which is obliged
to be the same as it is found in the statutes, therefore, whether or not the death sentence is
morally right or wrong is a matter for the Parliament to decide, but not the courts. Similarly, in
Public Prosecutor v Lau Kee Hoo (1983) 1 MLJ 157, mandatory death penalty is not
unconstitutional as the Federal Constitution itself envisages the possibility of Parliament to
provide for it. In Comptroller General of Inland Revenue v NP (1973) 1 MLJ 165,
Nallakaruppan v Ketua Pengarah Penjara (1999) 1 MLJ 96 and Ooi Kean Thong, Siow Ai Wei v
Pendakwa Raya (2006) 3 MLJ 389, it was observed that this phrase merely refers to enacted law
and not to general concepts of law such as natural justice.
Nevertheless, under the second interpretation, the definition of ‘law’ needs to be quoted
by extracting from Article 160(2) of Federal Constitution reading with section 66 of
Interpretation Acts 1948 and 1967 to include ethe common law of England. It was cited in
Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 that the ‘law’ in Article
5(1) of Federal Constitution must be in tande with the concept of rule of law and not rule by law.
Correspondingly, Ong Ah Chuan v Public Prosecutor (1981) 1 MLJ 64 adopted this
interpretation by referring Article 5 of Federal Constitution to a system of law which
incorporates the fundamental rules of natural justice. In Re Tan Boon Liat @ Allen & Anor
(1977) 2 MLJ 108, it was held that Article 5(1) of Federal Constitution provides the protection to
life and personal liberty but with the phrase ‘save in accordance with law’ which does not
necessarily mean ‘without due process of law’ as understood in India by virtue of words used in
this Constitution. In Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1,
it was held that law must also be one that is fair and just and not merely any enacted law
however arbitrary, unfair, or unjust it may be, otherwise that would be rule by law. Similarly, in
Singaporean case of Hau Tua Tau v Public Prosecutor [1981–1982] SLR(R) 133, law is defined
as a system of law which incorporates fundamental rule of natural justice which shall be struck
off by the court if it did not conform to the standard.

The safeguards for personal liberty in Article 5(1) are strengthened by the provision for a
remedy in Article 5(2) which sets out the requirement when a complaint is made to a High Court
or any judge that a person is being unlawfully detained, the court shall inquire into the complaint
and, unless satisfied that the detention is lawful, shall order him to be produced before the court
and release him. This principle incorporates the remedy of habeas corpus under the common law,
which refers to a writ commands a person to produce the detainee, with details of the detention,
in court. It even applies to security laws passed under Articles 149 and 150. This principle is
further elaborated in section 365 of Criminal Procedure Code that whenever any person is
detained in any prison or is alleged to be illegally or improperly detained in public or private
custody, he must be brought before the Court under a writ of attachment to be dealt with
according to law. In Ahmad Saidi Md Isa v Timbalan Menteri (2006) 3 MLJ 209, it was
suggested that Article 5(2) is synonymous with Article 8 on equality before the law which can be
claimed by the appellant for the opportunity to challenge the validity of the administrative order
made against him
Habeas corpus is a right which cannot be refused by the court, according to Andrew v
Superintendent Pudu Prisons (1976) 2 MLJ 156. In Abdul Ghani Haroon v Ketua Polis Negara
And Another Application [2001] 2 MLJ 689, Hishamudin J held that habeas corpus was not a
merely legal right, but also a constitutional right available to anyone who believes that he has
been unlawfully detained. In Re Datuk James Wong Kim Min [1976] 2 MLJ 245, it was held that
in a matter involves the fundamentality of the liberty of the subject, strict compliance with
statutory requirements must be observed in depriving a person his liberty. Therefore, the writ of
habeas corpus is a remedy to secure the release of anyone who has been arrested or detained
unlawfully, whereby the burden of proving that the detention is in accordance with law is on the
detaining authority, according to Re Tan Sri Raja Khalid Raja Harun (1988) 1 MLJ 182. When
the burden is discharged by producing the order of detention, the onus shifts to the detainee,
according to Karam Singh v Minister of Home Affairs [1969] 2 MLJ 129.

Article 5(3) of Federal Constitution confers a right to an arrested person to be informed

as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by
a legal practitioner of his choice. Basically, it can be divided into two limbs. The first limb of
Article 5(3) requires that an arrest person shall be informed of the grounds of arrest as soon
as maybe, which is affirmed in Abdul Rahman v Tan Jo Koh (1968) 1 MLJ 205. It means that
the police are not empowered to arrest for the sole purpose of questioning but can only arrest
with a reasonable suspicion which is sufficient to be delivered through oral communication, as
provided in Re P.E. Long @ Jimmy (1976) 2 MLJ 133. In Nik Adli Nik Abdul Aziz v Ketua
Polis Negara (2001) 4 MLJ 598, the ground of arrest must be communicated to the arrestee as
quickly as is reasonable in the circumstances of the case. In fact, ‘As soon as may be’ was
defined as ‘as ready as is reasonable in the circumstances of the case’ in Aminah v
Superintendent (1968) 1 MLJ 92. Therefore, a delay of 57 days to inform the detainee of the
grounds of arrest in Yit Hon Kit v. Minister of Home Affairs [1988] 2 MLJ 638 was held to be
unreasonable. Edgar Joseph J in Chong Kim Loy v Timbalan Menteri Dalam Negeri Malaysia &
Anor [1989] 3 MLJ 121 held that the right to be informed should be given at the earliest possible
moment which shall not be in detail, but only in general terms regarding the grounds of his arrest
and must be made known to him to afford him the opportunity of giving explanation of any
misunderstanding. An illustration can be drawn from Lee Gee Lam & Anor v Timbalan Menteri
Dalam Negeri Malaysia & Anor (1993) 3 MLJ 265 whereby the order of detention stated a
number of grounds on which the detainee was apprehended with shall not be used with the word
‘and’ but not ‘or’ to guarantee the constitutional right of the detainee to know precisely the
reason why he was being arrested. However, in Kam Teck Soon v Timbalan Menteri Dalam
Negeri [2003] 1 CLJ 225, it was observed that the right to be informed of the grounds of arrest is
no available to the provisions passed under Articles 149 and 150 of Federal Constitution.
The second limb of Article 5(3) of Federal Constitution gives an arrested person the
right to be allowed to consult and be defended by a legal practitioner of his choice. This
right is available at two stages, namely during the consultation at the police station and the
representation in court. In Ooi Ah Phua v Officer In-charge Kedah/Perlis (1975) 2 MLJ 198 and
Hashim Saud v Yahya Hashim (1977) 2 MLJ 116, the courts held that the consultation with a
lawyer in police lock-up can be postponed pending police investigation with the balance struck
between the entitlement of an arrestee and the duty of the police to collect evidence. In Datuk
Seri Khalid bin Abu Bakar & Ors v N Indra a/p P Nallathamby (the administrator of the estate
and dependent of Kugan a/l Ananthan, deceased) and another appeal [2015] 1 MLJ 353, the
failure to inform the deceased’s family about the deceased’s detention until his untimely death
despite the requests from the family has infringed the right of the deceased to seek legal advice
which gave rise to a breach of the deceased's constitutional right of access to legal representation
as provided by Article 5(1) and (3) of the Federal Constitution. In Ramli Salleh v Inspector
Yahya Hashim (1973) 1 MLJ 54, it was held that the onus of proving that the exercise of right
will impede police investigation falls on the police. On the other hand, in showing the breach of
this law, the detainee must show that the police has obstructed a detainee from exercising his
right, as provided in Theresa Lim Chin Chin v IGP (1988) 2 MLJ 293. During the judicial
proceedings, the right to be represented was strictly enforced by the court in Saul Hamid v Public
Prosecutor (1987) 2 MLJ 736. It is a real and substantive right which cannot be refused, as
provided in Parasuraman Velu v Ketua Polis (2006) 5 MLJ 764.

Article 5(4) of Federal Constitution requires an arrestee to be produced before a

Magistrate within 24 hours and shall not be further detained without the Magistrate’s authority.
In Re Detention of S. Sivarasa & Ors (1997) 1 CLJ 471, it was held that the liberty of an
individual after arrest is at stake whereby Article 5(4) of Federal Constitution reposes a heavy
judicial duty on Magistrate on whether a person should be detained.
However, there are some exceptions to the safeguard whereby the detainees under the
restricted residence laws and aliens are excluded from its benefits. For non-citizens arrested
under the immigration laws, the 24-horus period is extended to 14 days. For instance, in Assa
Singh v Mentri Besar, Johore [1969] 2 MLJ 30, the Court ruled that the Restricted Residence
Enactment did not have provisions similar to Article 5(4) of Federal Constitution which does not
make it unconstitutional despite the inconsistency. Similarly, in Chia Khin Sze v The Menteri
Besar, State of Selangor [1958] 1 MLJ 105, it was held that Article 5(4) only applies to arrests
under Criminal Procedure Code, but not Restricted Residence Enactment. Besides, this safeguard
is also not applicable to the laws passed under Articles 149 and 150 of Federal Constitution,
which can be seen in Chong Kim Loy v Timbalan Menteri Dalam Negeri Malaysia & Anor
(1989) 3 MLJ 121, whereby the right to be produced before a magistrate within 24 hours is not
applicable to preventive detention.

Compare Article 5 of FC to ECHR

By comparing Article 5 of Federal Constitution to European Convention on Human

Rights, the safeguard of right to life is provided in Article 2 of European Convention on Human
Rights whereby Article 2(1) provides the protection of life by law which shall not be deprived of
intentionally save in the execution of a sentence of a court following the crime conviction.
McCann and Others v United Kingdom 21 ECHR 97 GC provides that right to life is the most
fundamental rights in the Convention which enshrines one of the basic values of the democratic
societies. Similar to Malaysian approach in the inapplicability of Article 5 of Malaysian Federal
Constitution regarding right to life in certain legislations including the laws passed under Article
149 and 150 of Federal Constitution, this principle is also observed in European Convention on
Human Rights whereby it is possible for the state to derogate or enter a reservation on the matter
where the state finds it impossible or undesirable to comply with including the situation
amounting to a public emergency in Brogan v United Kingdom (1988), as per Article 15 of
European Convention on Human Rights.
Unlike Malaysian approach, the term ‘life’ here only refers to human life, which does not
include the life of animals, nor the right to existence of legal persons like companies. It can be
proven in the case of Evans v United Kingdom (2006) that an embryo has no right in life.
Therefore, unlike Malaysia, abortion does not infringe the right to life, as provided in X v. the
United Kingdom, Appl. No. 8416/79. Like Malaysia, there are also exceptions provided in
European Convention of Human Rights on right to life to excuse unintentional causes of death in
violent situations, which is provided in Article 2(2) with the conditions of (a) in defence of any
person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or
insurrection. It was illustrated in Steward v United Kingdom (1985) that the use of plastic bullets
in a riot will not violate Article 2, nor will measure taken to prevent possible future terrorist
activities in the case of Kelly v United Kingdom (1993). Despite the exceptions, there are also
limits to the lawful use of force, whereby in McGann, Farrell and Savage v United Kingdom
(1995) where the Court ruled that though the shooting after receiving the information regarding
the movements of suspected terrorists did not violate Article 2, however, in this case, there had
been inadequate control over the security forces operation which resulted in the ‘more than
necessary’ killing. Therefore, we can conclude that the action taken must be proportionate to the
circumstances of the case in order to be lawful. Similarly, in Edwards v United Kingdom (2002),
the failure to protect the prisoner’s life who was killed in the cell violated Article 2.
Unlike Malaysia, European Convention of Human Rights deals with right to life and
liberty separately. Right to liberty and security is provided in Article 5(1) of European
Convention of Human Rights which is save in accordance with a procedure prescribed by law
and the following cases, including lawful detention after conviction by a competent court,
detention of a minor by lawful order for educational supervision or bringing him before the
competent legal authority, as well as lawful arrest for the prevention of spreading infectious
diseases. In Steel v United Kingdom (1998), the arrest and detention of protesters violated
Article 5(1) on the grounds that the protest was entirely peaceful with no obstruction or
provocation. In Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 1377, the action
of the local council placing Steven, a young man with autism, at a specialist unit after a period of
time deprived him of his liberty.
Correspondingly, Article 5(2) of Malaysian Federal Constitution is similar with Article
5(4) of European Convention of Human Rights which enables anyone deprived of his liberty by
arrest to take proceedings with the lawfulness to be decided speedily by a court and his released
ordered if the detention is unlawful. In L v United Kingdom (2004), the lack of formal rules
regulating the admission and detention of compliant incapacity patients, notwithstanding the
need for protective detention, violated Article 5(1) and the absence of procedures to determine
the lawfulness of continued detention violated Article 5(4) of European Convention of Human
Rights. Similarly, in Blackstock v The United Kingdom: ECHR 21 Jun 2005, the delay in the
claimant’s consideration to move towards his being detained in more open conditions as a
prisoner serving a life sentence violated his right to a speedy determination of the lawfulness of
his detention. In Oldham v United Kingdom (2001), a two-year delay between reviews by the
Parole Board of detention was unreasonable and unlawful. Besides, in Brogan v United Kingdom
(1988), the detention for up to seven days, at the Home Secretary’s discretion, under the
Prevention of Terrorism (Temporary Provisions) Act 1974 was unlawful.
Article 5(3) of Malaysian Federal Constitution on right to be informed the grounds of
arrest and counsel is synonymous with Article 5(2) of European Convention of Human Rights
which provides the right to any arrestee to be informed promptly of the reasons for his arrest and
of any charge against him in a language that he understands. Furthermore, these two rights are
further emphasized under right to fair trial in Article 6(3) of European Convention of Human
Rights. In Whitfiled v United Kingdom (2005), right to counsel was violated by denying the
applicants legal representation. In Ashingdane v United Kingdom (1985), though the right of
access to law is not absolute, any restrictions imposed must not be such as to impair the very
essence of the right.
 Furthermore, Article 5(4) of Malaysian Federal Constitution carries similar principle with
Article 5(3) of European Convention of Human Rights that sets out the rule that any arrestee
must be brought promptly before a judge to be entitled to trial within a reasonable time. In
O’Hara v United Kingdom (2001), the failure of the police to bring an arrested person before a
judge promptly violate Article 5(3).
Nevertheless, European Convention on Human Rights further provides right to fair trial
under Article 6 which is not found in Malaysian Federal Constitution. This provision sets out the
right of fair trial before an independent and impartial tribunal, the presumption of innocence, as
well as a few conditions to ensure such right, including right to be informed promptly of the
charges and right to be represented by a lawyer, which is also provided under Article 5(3) of
Malaysian Federal Constitution. In fact, right to examine witnesses is also included. This right is
applicable in consequence of an administrative decision which affects the civil rights of
individuals. For instance, in Konig (1980), this right is applied when Dr Konig’s medical license
on his clinic was withdrawn which affected is civil rights. Article 6(1) also requires the hearing
to take place within a reasonable time which depends on the complexity, as per Davies v United
Kingdom (2002). All in all, it is to guarantee the trial has been conducted in justice by ensuring
the interests of all parties are protected.

To sum up, right to life and personal liberty is the most sacred of all natural rights, which
is guaranteed in Article 5 of Federal Constitution. However, the clause ‘save in accordance with
law’ indicates its limitations subject to other Acts of Parliament which has to give way to the
need to combat crime and threats to public order as well as national security. Articles 149 and
150 in particular have destroyed the principle in Article 5. Therefore, the arbitrariness of these
two provisions have to be amended, together with the more precise wordings of ‘save in
accordance with law’ with more justifications to ensure the rule of law being upheld to avoid
abuse of power.

2.
Explain arts 7(1) and 7(2), explain exceptions too – 5 exceptions
Cases which refused to follow this concept of Natural justice and moved away from Ong Ah
Chuan AND Haw Tua Tau v PP-1. Che Ani bin Itam v PP (1984)1 MLJ 113 FC. 2. PP v Lau
Kee Hoo (1983) 1 MLJ 157 FC. 3.( 1983) 1 CLJ 38 . ( This case basically said "concern
yourselves with the Act of Parliament before you and not matters of natural justice")
The argument here is basically "do we concern ourselves with the words of an Act or the
consequence of interpreting the Act? Don't forget that words may be differently understood and
interpreted by different individuals. Also, don't forget that it's for Parliament to enact laws since
they represent the people, it's not the work of judges to interpret according to their understanding
/ opinions and create new case laws. – include this in ans

Essay – article 7

Retrospective legislation is gravely objectionable as it imposes a new complexion on

events that have already taken place. A backdated law can validate illegalities acts that were
legal by criminalizing what was innocent during its commission. Therefore, safeguards against
the ban on retrospective laws and repeated trials is provided in Article 7 of Federal Constitution.
It fulfils the principle of rule of law proposed by Joseph Raz in his first postulate that the rules of
a state should be prospective rather than retrospective.
Article 7(1) of Federal Constitution lays down that no person shall be punished for
an act or omission which was not punishable by law when it was done and shall not suffer
greater punishment for an offence than was prescribed by law during its commission. It
means that ex post facto criminal laws are forbidden. Section 19 of the Interpretation Acts 1948
and 1967 provides that the commencement of an Act of Parliament or subsidiary legislation shall
be on the date provided in law or the day following the gazette of the law when no date is
provided. Though there is no total ban on retrospective legislation,
Article 7(1) provides two safeguards against the backdated criminal legislation to ensure
the interest of a fair criminal process, namely prohibition on creation of new offences and
increment of the penalty. In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187,
Raja Azlan Shah observed that 'The Constitution is not a mere collection of pious platitudes, but
the supreme law of the land embodying 3 basic concepts: fundamental rights, federal division of
powers and separation among the executive, legislature and the judiciary which are expressed in
modern terms that we are government by laws, not men. Therefore, subject to the constitutional
limitation of Article 7 of the Constitution, which is the protection against retrospective criminal
laws and repeated trials, Parliament would be within the ambit of its competence if it deems fit to
legislate retrospectively.
Under the first limb, it is prohibited to impose retrospective legislation effect to a
particular provision if the Parliament creates a new criminal offence. It means that a substantive
criminal statute must always be prospective in operation whereby the criminality of an act must
be judged by reference to norms at the time of the wrongdoing.
Under the second limb, it protects the citizens against the greater punishment for an
offence than was prescribed by the law during its commission. In PP v Mohd Ismail [1998] 7
MLJ 542, the accused was charged for under s 39A(2) of the Dangerous Drugs Act 1952 which
would be punishable with life imprisonment or death. While his trial was pending, this law was
amended to provide for a mandatory death penalty. The judge held that the amendment could not
be applied to the defendant’s case as it was enacted after the commit of offence. In Nordin
Yusmadi bin Yusoff v Public Prosecutor (1997) 3 MLJ 754, the five years’ imprisonment
imposed which takes effect after the appellant had served the order of detention in Henry Gurney
School indicated two sets of sentences imposed on a conviction upon one charge, which was
prohibited by Article 7(1) of Federal Constitution as the appellant suffered greater punishment
for an offence than was prescribed by law.
Nevertheless, there are permissible exceptions on the prohibition against retrospectivity
on new criminal offences or the enhancement of penalties for existing crimes. In fact, this
prohibition only applies to substantive criminal laws, but not the civil or procedural
criminal laws. In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, the word
‘punishment’ in Article 7(1) of Federal Constitution has been interpreted to be criminal sanctions
and not to civil penalties, whereby laws dealing with non-criminal matters such as maintenance
or tax liability can be backdated. In Lim Sing Hiaw v Public Prosecutor (1965) 1 MLJ 85, the
court upheld a retrospective amendment to criminal procedure that converted a trial by jury to
trial by judge alone. Besides, in Gerald Fernandez v Attorney General (1970) 1 MLJ 262, the
retrospective amendment on the extradition procedures to facilitate the return of a fugitive to
Singapore for an offence committed in the Republic prior to the amendment did not violate
Article 7(1) of Federal Constitution. In Haw Tua Tau v Public Prosecutor (1980) 1 MLJ 2, the
amendment on the rules of criminal procedure after the commission of the alleged crime but
before the commencement of the trial was not against the protection of Article 7(1). In Public
Prosecutor v Musa (1970) 1 MLJ 101, it was held that reducing the scope of judicial review of a
preventive detention order by retrospective legislation also does not violate Article 7(1). Aside
from the amendment on civil or procedure criminal laws as the permissible exceptions, criminal
laws decreasing the penalty for an offence or abolishing an offence can be backdated. In Public
Prosecutor v Hun Peng Khai (1984) 2 MLJ 318, reducing the range of penalties from death and
life imprisonment to death alone does not contravene the provision. However, like most
provisions on fundamental rights, Article 7(1) can be suspended by emergency legislation
enacted under Articles 149 and 150 of Federal Constitution.

On the other hand, Article 7(2) of Federal Constitution provides that no person shall
be tried again for the same offence, unless the conviction or acquittal has been quashed and
a retrial ordered by a court superior to that by which he was acquitted or convicted. The
gist of this provision is that everyone has the immunity from repeated trials for the same offence
which is based on the Latin maxim Nemo debet bis vexari (a man must not be put twice in peril
for the same offence). The principle is further elaborated in section 303 of Criminal Procedure
Code that there should be finality to a judicial verdict after the appeal process has been
exhausted. However, there have been cases which were highly likely violating this principle.
Therefore, a verdict of acquittal is a complete defence against future similar charges on the same
set of fact, which can be seen in Sau Soo Kim v Public Prosecutor (1975) 2 MLJ 134 and Public
Prosecutor v Lee Chan Sang (1989) 1 MLJ 224 where lower courts prematurely granted an
acquittal without going into the merits of the case and the superior courts set aside the verdict of
acquittal. Although this rule refers to criminal charges, it is also applicable in a situation that
involves the livelihood of a professional and potential repercussions that may ensure from its
non-observance, which can be seen in R. Sivabalan A/L A. Ramiah v Neoh Lay Cheng
(Malaysian Bar Council, Intervener) [2016] MLJU 649.
In Riza Shahriz bin Abdul Aziz & Anor v Pendakwa Raya [2019] MLJU 1824 where
Riza Aziz was charged for several acts which involved complex questions of law, as the offences
were allegedly committed outside Malaysia relating to the 1MDB scandal. However, an issue
arisen relating to double jeopardy as Riza Aziz has been punished as the owner of Red Granite
Pictures by the United States Department of Justice. Besides, in issue of Lim Guan Eng’s
bungalow purchase, there is also double jeopardy as Lim Guan Eng and Phang Li Koon were
charged for corruption by allegedly obtaining the plot of land and bungalow at below the market
prices during Lim’s serving as the state’s chief minister, however, it resulted in a discharge
amounting to their acquittal in the Lim Guan Eng v Public Prosecutor and another appeal [2018]
1 MLJ 433. However, this case was reopened again for investigation in 2020 which obviously
infringed the prohibition on double jeopardy.
Like Article 7(1), there are also a few exceptions for the principle enshrined in Article
7(2) of Federal Constitution. Firstly, double jeopardy does not apply to a discharge which
does not amount to acquittal for the purpose of auterfois acquit as it is a decision to discontinue a
trial due to various reasons like failure of prosecution witnesses to appear or repeated requests by
the Prosecutor for postponements. It is basically due to the procedural issues, but not an
indication of releasing the accused from suspicion. In Uthaykumar a/l Ponnusamy v Public
Prosecutor (2003) 5 MLJ 433, a discharge may be warranted when the absence of grounds is
clearly established by the evidence on record which was founded not on the lack of evidence or
the inadequacy of the applicant’s submission.
Secondly, the rule against double jeopardy does not apply if the previous trial was
quashed and a retried ordered, which is affirmed in the case of Fan Yew Teng v Public
Prosecutor (1975) 2 MLJ 235, whereby though the entire proceeding relating to the seditious
conviction was quashed due to a failure to hold a mandatory preliminary enquired, the Member
of Parliament was prosecuted again for the same offence with the judgment that the retrial after
the quash of first trial does not violate the principle of autrefois convict.
Thirdly, if the subsequent trial tries different offence on the same set of facts, there
would be no violation of double jeopardy. In Jamli Adnan v Public Prosecutor (1986) 1 MLJ
163, it was held that ‘different offence’ means an offence with different ingredients. It was
supported by Public Prosecutor v Gan Boon Aun & Anor [2012] MLJU 1225 that the offences
must have the same essential ingredients for the application of double jeopardy rule. In
Nadarajan a/l Somasundram (1994) 2 MLJ 657, the charges in current criminal proceedings
which were different and based on the facts distinct from the facts forming part of the bases of
the previous trial cannot constitute the rule of double jeopardy. In Syed Abdul Rahman Bin Wan
Akil v Public Prosecutor [2005] MLJU 542, the submission of the learned counsel for the
applicant on the principle of double jeopardy failed as the applicant did not face the same charge
as there are two distinct charges with no identity of offence as well as different dates and
amounts.
Fourthly, technical errors on the detention order does not prohibit retrial. In Re
Datuk James Wong Kim Min (1976) 2 MLJ 245, the plaintiff’s detention in West Malaysia under
a law applicable to Sarawak amounted to his release which did not bar a subsequent detention
order properly made out under the correct law.
Fifthly, there is no double jeopardy if a person is acquitted under an appeal by the
Prosecutor according to section 5 of the Court of Judicature (Amendment) Act 1976 or an
order of retrial by the appellate criminal courts. In Public Prosecutor v Munusamy (1967) 1
MLJ 238, it was held that appellate criminal courts have power to order a new trial. Similarly, in
Public Prosecutor v Ooi Khai Chin & Anor (1979) 1 MLJ 112, the court held that the Federal
Court had jurisdiction to entertain the criminal appeal.
Sixthly, there is no double jeopardy on the preventive detention. In Public Prosecutor v
Musa (1970) 1 MLJ 101, the court held that there is no bar to a subsequent criminal trial on the
same set of facts if the detainee was previously under administrative detention under Internal
Security Act. Similarly, if a person is acquitted by a court of law, there is no bar to a subsequent
prevention detention order as seen in Yeap Hock Seng @ Ah Seng v Minister (1975) 2 MLJ 279.
In Saravanan a/l K S Somu v Timbalan Menteri Dalam Negeri (2005) 1 MLJ 399, the applicant
was detained under preventive detention law with the allegation of fact which was same as a
charge tried before. However, it was held that the doctrine of double jeopardy did not apply to
preventive detention as the acquittal of an accused does not necessarily mean that he cannot be
regarded as acting in a manner prejudicial to the purposes set out in preventive detention laws.
Seventhly, the rule against double jeopardy only applies to criminal matters, but not
disciplinary and civil proceedings. In Mohamed Yusoff Samadi v Attorney General (1975) 1
MLJ 1, a school teacher was acquitted of outraging the modesty of his pupils but was
subsequently tried, convicted and dismissed for bringing disrepute to his profession. In
Kamarudin bin Mamat v Ketua Polis Negara & Anor (2004) 4 MLJ 201 and Zakaria bin Abdul
Rahman v Ketua Polis Negara Malaysia & Anor (2001) 3 MLJ 385, the doctrine of double
jeopardy had no application in these cases since the dismissal proceedings were only the
disciplinary proceedings against the plaintiff. Lastly, trial in one court on charges also pending
in another court does not amount to double jeopardy as the constitutional guarantee is
activated only after a person has been acquitted or convicted, which can be seen in Teh Cheng
Poh v Public Prosecutor (1979) 1 MLJ 50.

Comparison with ECHR – don’t explain all cases, just cite 1 or 2 enough
In European Convention of Human Rights, the prohibition against retrospective
criminal laws is provided in Article 7(1) whereby no one shall be held guilty of any criminal
offence on any act or omission which did not constitute a criminal offence during its
commission. Article 7(2) of Federal Constitution further elaborates that the provision shall not
prejudice the trial and punishment for any act or omission which was criminal during its
commission according to the general principles of law recognized by civilized nations. It means
that public authorities must explain clearly what counts as a criminal offence to acknowledge the
public that an act constitutes law-breaking and it is against the law for the courts to impose a
heavier punishment than was available during the commission.
 However, like Malaysian approach, this provision only applies for the criminal cases and
is not absolute. In Waddington v Miah [1974] 2 All ER 377, the House of Lords denied
retrospective effect in relation to criminal offences by interpreting the Immigration Act 1971 in a
different manner with the Parliament. In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, the
House of Lords awarded compensation to the claimant for the destruction of oil installment
during wartime. Meanwhile, the Parliament speedily enacted War Damage Act 1965 in order to
nullifying the decision. This illustrated that the court cannot uphold the rule if Parliament
expressly provided for retrospectivity. In Gough v Chief Constable of Derbyshire (2001), the
Queen’s Bench Division ruled that banning orders that prevented UK nationals from leaving the
country to attend regulated international football matches were lawful and a proportionate
restriction on freedom of movement under EC law. Furthermore, such an order imposed after a
conviction of a public order offence was not a penalty which resulted in no violation of Article 7.
In R v C, the Court of Appeal dismissed an appeal against the rape conviction of wife in 1970. In
2002, the defendant had been convicted of a number of sexual and violent offences including the
rape of his wife over 30 years previously. The Court applied R v R (1992) and SW v United
Kingdom (1995) and held that there was no abuse of process in prosecuting for an offence
committed before the immunity from prosecution was lifted, which was further supported by the
phrase ‘ample justification ‘for trial and punishment in Article 7(2). In R v Secretary of State for
the Home Department, ex parte Uttley [2004], a man convicted of various sexual offences with a
sentence of 12 years’ imprisonment was released subject to licence condition imposed under the
new law, but there was no infringement of Article 7 of ECHR as there is no exceeding sentence
on the maximum penalty available under the law in force during the commission of the offence
as the new law introduced only included the imposition of licence conditions which did not make
the sentence heavier than it would have been under the earlier regime.
In reality, common law is actually retrospective as judge is an active law-maker. It can be
seen in Shaw v DPP [1962] AC 220, where the defendant was convicted of conspiracy to corrupt
public morals by creating magazines containing personal adverts for prostitutes which was not a
charge recognizing by law of England. The Court found the action of the defendant was
dangerous to the welfare of society and it was their duty to protect the public majority’s morals,
as well as safety and order, so this case created a new offence of conspiracy to corrupt public
morals and established that an offence that was not written in criminal statute could be
recognised as a legal charge, applying the retrospective criminal offence where the decision was
followed in Knuller v DPP [1973] AC 435.
On the other hand, the common law principle against the double jeopardy is a
fundamental right of the accused in accordance with the rule of law. Though this principle is not
incorporated in the European Convention of Human Rights, it is extensively applicable and
included in most European constitutions as well as several international conventions. In R v
Miles (1980) 24 QBD 423, it was held that when a person has been convicted of an offence by a
court of competent jurisdiction, the conviction is a total bar to all further criminal proceedings
for the same offence. In The State (Tynan) v District Justice Keane (1968) IR 348, Walsh J held
that the applicant’s case was based on the broad general principles of common law that a man
shall not be twice vexed for one and the same cause whereby a man ought not to be punished
twice for the same offence.

Conclusion – shorten conclusion, 1 line is efficient

 In conclusion, Article 7 of Federal Constitution incorporates both European Conventions
on Human Rights and common law principles on the protection against the ex post facto laws as
well as double jeopardy to ensure the rule of law being upheld by ensuring there is not
punishment without law as per A.V. Dicey. Nevertheless, these two principles are subject to
exceptions which are considered wide by only applying on the substantive criminal laws. These
exceptions are so immense that one is left wondering about the real worth of this immunity.
Therefore, several amendments need to be done to ensure more specific wordings in the
exceptions to avoid arbitrariness of the authorities.

PROB QUES – retrospective law

IS: whether protected from retrospective laws

The first issue is whether Joe is protected from retrospective law through the virtue of Article 7
of Federal Constitution.

Article 7 of FC deals with the protection against retrospective criminal laws and repeated trials.
According to Oxford dictionary, the word ‘retrospective’ bears the meaning of looking
backwards. While, Black’s Law dictionary defines retrospective law as one that is to take effect,
at a point of time, before it was passed. Protection against retrospective criminal laws and
repeated trials are the fundamental principle of our legal system. Therefore, a person cannot be
punished for something which at the time when it was done was not an offence. The terms
‘retrospective’ and ‘retroactive’ are used interchangeably. A retroactive statute is one which
gives to pre-enactment conduct a different legal effect from that which it would have had without
the passage of the statute. On the other hand, Professor Charles Sampford defines retrospective
laws as laws which alter the future legal consequences of past actions and events.

In general, Article 7 of FC can be divided into two limbs. Firstly, it prevents retrospective effect
only in criminal matters. Secondly, it prevents you from repeating trials under the same facts.
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 gazeting of the law. On top
of that, 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 the penalty for a criminal
offence is enhanced, the amending law imposing the greater punishment cannot be applied
retrospectively.

With regards to the current situation, applying Article 7(1) of FC to the situation above, Joe shall
not be punished under the new amended law for two grounds. The first ground is because Article
7 of FC is enacted to prevent retrospective effective effect on criminal law. Due to the fact that,
the offence committed by Joe under Section 31(B) of Dangerous Drug Act constituted an offence
under the Criminal Law, the punishment given shall not bear any retrospective effect. Moreover,
pursuant to Section 19 of the Interpretation Act, legislation commences according to the date
provided in the law, such provision has then enabled Joe to be bound to the law at the time in
which he had committed the offence. As such, Joe shall be protected under the retrospective
effect of law and be punished by the old law which is the legislation in force at the time where
Joe committed the offence.

The second justification is with regards to the second limb of Article 7(1) of FC whereby no one
shall suffer greater punishment on an offence than was prescribed by the law at the time it was
committed. Based on the situation given, Joe committed an offence under Section 39B(1) of
Dangerous Drug Act before the Act is being amended. As a result, even though the act is
amended and greater punishment has been imposed, pursuant to Article 7(1) of FC, Joe shall not
be punished by a law where it doesn’t exist at the time when he committed the offence.
Therefore, since criminal law shall not bear any retrospective effect and no one shall suffer
greater punishment on an offence than was prescribed by the law at the time it was committed,
Joe shall only be punishable by the law at the time when he committed that offence.

Furthermore, the interpretation of limbs of Article 7 of FC is further affirmed in the case of Loh
Kooi Choon v Government of Malaysia whereby before the appellant appeal was heard, the
Parliament amended Article 5(4) by adding a provision stating: Provided that this Clause shall
not apply to the arrest or detention of any person under the existing law relating to restricted
residence, and all the provisions of this Clause shall be deemed to have been an integral part of
this Article as from Merdeka Day. It was held that Article 7 covers two limbs which are
protection from retrospective offences and protection from retrospective increase in the
punishment for existing offences. Nevertheless, Article 7(1) is only applicable to substantive
laws which refers to all categories of public and private law and such retrospective alteration to
procedural laws is not within the protection offered by the provision.

Similarly, in PP v Mohamed Ismail, the defendant was charged with drug trafficking which was
punishable with life imprisonment or death under Section 39 B (1) of the Dangerous Drugs Act
1983. While his trial was pending, the law was amended to provide mandatory death penalty. At
the close of the trial, the public prosecutor invited the court to impose the enhanced penalty. In
refusing the request, the judge held that the amendment could not apply to the defendant’s case
as it was a procedural law enacted after the offence was committed.

Referring the current situation through the virtue of these cases, it can be seen that Article 7(1)
deals with the protection against retrospective criminal laws and it provides 2 safeguards namely
a law creating a new penal offence cannot have effect back in time and in the circumstance that
the penalty for a criminal offence is enhanced, the law increasing the penalty cannot be applied
retrospectively. Therefore, since Joe has committed an offence under criminal law which shall
not bear any retrospective effect and through the virtue of Article 7 of FC and no one shall suffer
greater punishment on an offence than was prescribed by the law at the time it was committed,
the amendment of section 39B (1) of the Dangerous Drugs Act 1952 could not apply to Joe’s
case as it was enacted after the offence had been committed, or else, it would constitute to a
violation to Article 7(1) of FC.

In conclusion, it is highly liklely that Joe is protected from retrospective law through the virtue
of Article 7 of Federal Constitution.
IS: whether protected under nemo concept – not tried twice for same offence

The second issue is whether Ken was protected under the legal concept of nemo debet bis vexari
under Article 7(2) of Federal Constitution.

Nemo debet bis vexari bears the meaning of a man must not be put twice in peril for the same
offence. An acquittal is a permanent bar to a new trial for the same offence on same set of facts.
In Malaysian Position, Article 7(2) of FC provides that a person who has been acquitted or
convicted of an offence shall not be tried again for the same offence except where the conviction
or acquittal has been quashed and a retrial ordered by a court superior to that by which he was
acquitted or convicted.

Moreover, it is important to highlight that there are exceptions subjected to Art 7(2) of FC in
which an appeal falls under such category. Thus, if a person is acquitted and the prosecutor files
an appeal under S 5 of Court of Judicature (Amendment) Act 1976, there is no double jeopardy.

Referrring to the situation given, Ken who had committed the offence of murder under Section
302 of Penal Code is acquitted by the court. Nevertheless, dissatisfied the prosecutor files an
appeal against the court decsion. With regards to the appeal of prosecutor, such appeal has not
violated Article 7(2) of FC as an appeal falls under the exception of Art 7 (2) of FC. With that
being said, since the appeal applied by the prosecutor fall under the exception of Art 7(2) of FC,
tehre is no double jeopardy, thus, Ken shall not be protected by the legal concept of nemo debet
bis vexari.

In conclusion, it is most likely that Ken was not protected under the legal concept of nemo debet
bis vexari under Article 7(2) of Federal Constitution.

CHAP 4 – ART 8,9,10

1. Explain Article 8 of the Federal Constitution. Support your answer with relevant authorities.

Essay – Article 8

According to AV Dicey, equality was deemed to be part of the rule of law. Art 8 of the Federal
Constitution states that everyone shall be equal before the law and shall entitle the protection of
the law equally, enshrining the general ideal of equality before the law. Such right of equality
was a right that is entitled by everyone regardless of whether the person is citizen or non-citizen.
There are several aspects covered under the clause where it includes equal treatment, equal
protection, as well as equal prohibition against discrimination. With that being said, no privilege
given to anyone will be constitutional. Such clause is also emphasizing on the equal subjection to
all classes of people in the land towards the ordinary law. In cases of a similar fact pattern, the
parties to both of the case shall be treated in a same manner or having the same punishment.
There shall not be any tenderness towards any parties of any case in order to upheld the equality
enshrined by Art 8 of the Federal Constitution.

Article 8(1) is a generic law whose effect on the country's administrative and legislative
procedures has yet to be thoroughly investigated. Despite the fact that it was intended to be a
catalyst for constitutional growth, it remains one of the least used provisions of the Constitution.
It has the following dimensions, among others are absence of privileges. According to Article
8(1), there must be no special privileges for the wealthy and powerful.

Under Art 8 of the Federal Constitution, the punishment imposed to a similar offence shall be
equal, no matter what is the status of the person. In the case of PP v Tengku Mahmood
Iskandar, the accused of the case was the son of the then Sultan Johore and has committed
murder by causing death to a golf caddy in Cameron Highland. In trial, the sentence was reduced
due to his identity. Upon appeal, the court held that in accordance with Art 8 of the Federal
Constitution, there shall be no discrimination nor privilege entitled by anyone to minimize
tyranny. Thus, the sentence has been reversed and a heavier judgement has been given. The court
further held that there is only one law applicable throughout the nation, to all citizens, regardless
of status. Its main theme is that everybody should be treated equally. Both people in similar
situations should be handled the same.
Moreover, under Art 8 of the Federal Constitution, arbitrariness is also prohibited. In the case of
Tan Tek Seng v Suruhanjaya Perkhidmatan, the appellant was a primary school senior
assistant and was alleged to be wrongfully dismissed without a fair hearing. The court held that
Art 8 of the Federal Constitution is able to be applied to challenge any power that is unguided or
unrestricted. The court further states that in dealing with disciplinary case, the authority shall act
in a reasonable and fair manner in deciding punishment imposed. If the authority has acted
arbitrarily or has imposed punishment unfairly, such decision is able to be set aside or quashed in
pursuant to Art 8 of the Federal Constitution. Article 8(1) was defined as "all-pervading in
effect" in Tan Tek Seng v Suruhanjaya Perkhidmatan [1996]. Its clause may be used to challenge
any control that is unguided and unregulated as discriminatory. Article 8(1) "strikes at
arbitrariness in state intervention and guarantees fairness and equality of care," the court
concluded.
Justice Raja Azlan Shah (as His Majesty was then) claimed in PP v Tengku Mahmood Iskandar
[1973] in enhancing the punishment for an offence committed by a Prince of a royal family.
There is no arbitrariness since Article 8(1) extends to both legislative and administrative
discretion.

Other than that, procedure fairness is also being guaranteed by the clause itself. In other words,
all procedure must be subjected to the same requirement and the same procedure without
prejudice to any person. In the case of Tan Tek Seng v Suruhanjaya Perkhidmatan, the court
held that under Art 8(1) of the Federal Constitution all citizen shall be subjected to the same
procedure by the public administrator. The fairness in procedure is also extended to the
requirement to provide reason for any decision made without following the custom or normal
decision.

In the case of Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan [1996] 1 MLJ 481,
514, the court of appeal held that all citizen shall be subjected to the same procedure under Art 8
of the Federal Constitution. Thus, the minister in the case shall refer to the dispute in the
industrial court. Justified and adequate reason shall be provided in case if the minister is not
following the dispute as the case is concerning the right to livelihood of the worker.

Moreover, the equality protected under Art 8 of the Federal Constitution is also enshrining the
proportionality in judgement, which is to say all sentence imposed must have taken the
surrounding circumstances and the decided cases into account and shall not be in excess of what
that has been made previously. For example, in a case that is involving minor, the judgement
shall be proportionate to the age of the accused. It shall not be too excessive seeing that the age
of the person is yet to attain the age of majority. In the case of Hong Leong Equipment Sdn.
Bhd. v Liew Fook Chuan [1996] 1 MLJ 481, the court held that the penalty imposed by the
court shall be proportionate and shall not be too harsh or oppressive.

Furthermore, the equality is also protecting the electoral law where everyone must be equal in
terms of the vote given. Such protection is in line with the rule of ‘1 person 1 vote’ where every
vote given by every person shall be counted as one vote. In the case of Baker v Carr, there is a
strict electoral law adhered to where the court held that the situation where the urban area is
having lower number of voters as compared to urban area was deemed to be unconstitutional.

However, there is no one right that is absolute. Art 8 of the Federal Constitution is not an
exception to that. In pursuant to Art 8(2) of the Federal Constitution, the equality protected by
the Federal Constitution is provided only to the extent where such discrimination was not
expressly provided by the Federal Constitution itself. With that being said, if the provision that is
discriminatory in nature was provided by the Federal Constitution itself, it is not violating the
Federal Constitution, and is thus, constitutional. Article 8(2) strengthens the ideal of equality
before the law established in Article 8(1) by prohibiting discrimination in certain areas of life
based on five enumerated grounds. Discrimination based solely on faith, race, sex, descent, or
place of birth is prohibited under Article 8(2).
The promise of equality, on the other hand, cannot be invoked if the absence of parity is founded
on a prohibited plus an additional ground. Thus, in a Rukun Tetangga law exempting women
from night patrols, public safety could be the primary concern. Exceptions for Malays and
Natives to this Art 8(1) of the Federal Constitution. Despite Article 8(1)'s pledge of equality, the
Constitution is littered with exceptions. There are provisions in Article 153 that give Malays and
natives of Sabah and Sarawak a special status. These provisions are focused on the affirmative
action principle. Legal equality between those who are obviously unequal on certain indices, for
some reason, appears to favour the strong over the weak.
In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan (1996) also confirmed that Article
8(1) may be used to compel public administrators to follow the obligation of procedural justice
toward all people, which includes providing reasons for an adverse decision. Similarly, the court
held in Hong Leong v Liew Fook Chuan [1996] that the Constitution's equality clause can be
used to compel public officials to follow the obligation of procedural justice to all people.
Adjudicators are required to include explanations for their decisions.
In the case of Beatrice Fernandez v Sistem Pernerbangan Malaysia (2005), however, it was not
used effectively. Beatrice worked as a stewardess for the Malaysian Airline System (MAS) in
this situation. Their working conditions were regulated by a collective bargaining agreement that
stated that the corporation had the right to terminate the employment of any pregnant employee.
Beatrice became pregnant and refused to leave because she was pregnant. As a result, the
corporation took steps to terminate her employment, and she took the matter to court.
She claimed that the collective bargaining arrangement is in violation of Article 8(2) of the
Federal Constitution, which states that no statute shall discriminate against people based on
religion, colour, descent, place of birth, or gender. The court pointed out that Article 8(1) only
applies to individuals under the constitution, and since the collective arrangement was regulated
by private law, Article 8 could not be included in this case.
The court ruled in Beatrice a/p A T Fernandez v Sistem Penerbangan Malaysia [2005] that the
private sector is not bound by the fundamental rules of fair treatment. The job of a flight
stewardess was terminated after she became pregnant and did not resign as required by the
collective bargaining agreement. The court held, somewhat unconvincingly, that constitutional
law which deals with the Legislature, the Executive, and its agencies violating individual rights
which does not extend its substantive or procedural protections to infringements of an
individual's legal right by another individual.
Furthermore, a collective agreement is not included in the term "law" as described in article 8 of
the Federal Constitution." The learned judges' assertion that constitutional law has no bearing on
private rights is incorrect. Many constitutional requirements, such as those contained in Articles
5, 6, 11, 12, and 13, also extend to the private sector.
Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun & Others (2012) is another case. This
case involved an individual who had accepted a position as a substitute teacher at a government
school. The deal was cancelled the moment the boss learned she was pregnant. Noorfadilla filed
a lawsuit in court seeking interest, damages, and expenses. The officer, the Federal Government,
the Education Minister, and the Education Director General were all named as defendants in the
lawsuit. According to Malaysia's obligations under the Convention on the Elimination of All
Types of Discrimination Against Women (CEDAW), this case involves both overt and indirect
discrimination, in which men and women are treated unequally.
Discrimination against anyone on the basis of being the subject of a Ruler or being a citizen or
carrying on business outside the jurisdiction of a public authority is prohibited under clauses (3)
and (4) of Article 8(3) and (4). The better view is that Article 8(1) is a general provision
mandating equality in all areas of public law. Article 8 clauses (2), (3), and (4), as well as
Articles 12 and 136, do not restrict Article 8(1), but rather reinforce it by highlighting particular
places where discrimination is prohibited.
A constitution must be read in its entirety rather than piecemeal. Each clause must be viewed in
the context of the entire constitutional landscape. Each clause of the basic charter must be read in
the light of the other clauses of the Constitution when reading it. Article 8(2) should not be
interpreted as an overarching and overriding clause limiting the application of Article 8(1)s
general provisions. The five prohibited grounds such as religion, ethnicity, descent, place of
birth, and gender are not intended to be a complete or exhaustive list of prohibited classification
criteria.
Under Article 8 of the Federal Constitution, there are exceptions that are constitutionally
allowable. There is no such thing as an utter and unbending legal guideline. Many deviations
must be allowed in a living legal framework to meet the demands of a dynamic social and
political life.
As for Article 8(5), this article notes that the Constitution's equality clauses do not prohibit
[deprive] the following six matters, such as the existence of separate "personal rules" for
different groups. This clause is consistent with Article 11's guarantee of religious freedom.
Religious organizations and offices may be restricted to adherents of that faith. Same goes to the
protective discrimination may be used in favour of the Malay Peninsula's aborigines. Under
Art8(5)(a) of FC, it states that the discrimination in terms of provisions that are regulating
personal law will be deemed to be constitutional. This has been shown in the clauses under the
Federal Constitution that is enabling the muslim to be subjected to shariah law instead of other
secular laws. Under Art 8(5)(b) of the FC, it states that the provision that is restricting the
employment in establishments that are established by certain religious groups are also deemed to
be constitutional. Under Art 8(5)(c) of the FC, it states that the law that is discriminating but
was made for the sake of protecting the wellbeing of aborigines are not deemed to be
unconstitutional.

In the case of Tr Sandah Tabau & Ors V. Director Of Forest, Sarawak & Anor And Other
Applications, the court held that the special position of indigenous people as provided under Art
153 of FC should not be ignored and shall be safeguarded by the YDPA.

In the case of Sp Boon Seng Project V. Pengarah Tanah & Galian Negeri Kedah & Anor,
the court held that land matter is not reserved for the Malays and indigenous people under Art
153 of FC.

In the case of Datuk Haji Harun bin Haji Idris v. Public Prosecutor, Lord President laid
down the principle of equality in Malaysia as per the FC that Art 8 of the FC has expected that
there will be lawful discrimination based on classification as Art 8(2) of the FC has prescribedly
mentioned about the exception of equality as authorised by the FC, and Art 153 is an example of
it.

Under Art 8(5)(d) of the FC, the provisions that are prescribing the residence in the appointment
or election of state offices will also not be protected by Art 8(1) of the Federal Constitution.
Under Art 8(5)(e) of the FC, state constitution that contains discriminatory provision will not be
deemed to be unconstitutional if it has already existed before the year of 1957. Under Art 8(5)(f)
of the FC, the clauses that are restricting the enlistment in the Malay Regiment to the Malays are
also not protected by Art 8(1) of the Federal Constitution.

It is notable that the nature of equality for procedural fairness is that it will only be upheld in
cases that have similar fact. In this sense, not all cases will be subjected to the equal procedure.
This has been shown in Public Prosecutor v Khong Teng Khen, where the Attorney General
submitted that the accused shall be tried under special rules of evidence but it was rejected by the
accused counsel on the contention that the ordinary rules of evidence under the Criminal
Procedure Code shall be used instead. The court held that Art 8 of the Federal Constitution is not
stating that the courts could not categorize people and treated them differently. The court will
only treat all person in a like manner under the like circumstance, but not all circumstance.
Therefore, with proper rationale, it is permissible for the court to classify an individual.

The AG has also been vested with the discretionary power to prosecute a person according to
circumstance. In the case of Johnson Tan Han Seng v Public Prosecutor, the court held that
the FC has given discretion to the AG to differentiate or classify individual for the purpose of
prosecution, as long as the AG has taken into account the public interest. Hence Article 145(3)
must be taken to be read together with Article 8.

In Public Prosecutor v Datuk Harun Idris, the court held that the power of the AG to transfer
a case from lower courts to higher court under Art 145(3) and (3A) of the FC is not in violation
of Art 8.

In Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor, the court in dealing with
whether a clause in a collective agreement that requires an air stewardess to resign on becoming
pregnant was against Article 8, held that the article is merely dealing with the infringement of
rights by legislature or executive, but has no play in private sector.

In Government of Malaysia v VR Menon, the respondent contended that the law that is
requiring him to live in Malaysia in order to entitle pension is a form of discrimination between
local and foreign pensioners and is therefore against Art 8. The court held that Art 8 is subjected
to the act of Parliament and such provision is not concerning fundamental right and is hence
constitutional.

To summarize, Article 8 has enormous potential for demanding humane and equitable treatment
in all facets of government. The beauty and promise of the principle of equality before the law is
unrivalled. However, since it is such a dynamic web with conflicting repercussions, its objectives
will always and everywhere be only partly and formally realized. In practice, the equal rights
ideal is beset by difficulties and inconsistencies.

Explain Article 9 of the Federal Constitution.

Support your answer with relevant authorities.
The Prohibition and the Right in Article 9 enshrines the right to freedom of movement. The right
to join Malaysia is only guaranteed to Malaysian citizens (not non-citizens). It prevents the
authority from expelling or excluding a resident. The freedom to freely travel and live anywhere
within the Federation may be restricted by special immigration laws in Sabah and Sarawak, as
well as other exceptions set out in the article. Under Art 9(1) of the Federal Constitution, no
banishment or exclusion of citizens of Malaysia shall be allowed in the federation itself.
However, under Art. 9(2) of the Federal Constitution, any legislation relating to the protection
of the Federation or any part of the Federation is subject to constitutional limitations. Any public
order rule, as described in Art. 9 (2). Under Art. 9(2), any legislation relating to public health.
Art. 9 and any legislation relating to the prosecution of criminals. Under Art. 9(3) of the
Constitution, Parliament can impose restrictions on movement and residence between any other
State in a special constitutional position compared to the States of Malaya and other States.
The Scope of Freedom of Movement can be discussed and seen in the GOVERNMENT OF
MALAYSIA & ORS. V. LOH WAI KONG [1979], Loh Wai Kong requested an order from
the High Court ordering the authority to grant him a passport. He said that (1) he had a
constitutional right to travel abroad, and (2) that his right to travel was being abused by the
denial of a passport. The application was denied by the learned Judge. Loh Wai Kong then took
his case to the Federal Court of Appeal.
The citizen's right to leave the country, travel abroad, and have a passport is not included in the
scope of the legislation in Loh Wai Kong v Government of Malaysia (1979) as Art. 9. There is
no fundamental right for a person to leave the country and move abroad. A person has no right to
a passport, not even an eligible right. With or without a passport, a person has no fundamental
right to leave the country.
The explanation for this is that the constitution cannot guarantee a right that can be exercised
outside of the jurisdiction. International law does not recognize the right to travel to other
nations, although it is regulated by treaties, conventions, agreements, and various forms of use. It
would be arrogant and pointless for our founding fathers to bestow a constitutional right that
every foreign nation could lawfully refuse. The government has the authority to prevent a person
(or even a non-citizen) from leaving under such cases. When he is facing a felony charge, for
example.
In the case of ASSA SINGH V. MENTRI BESAR, JOHORE (1969), The court must decide if
the terms of the Restricted Residence Enactment authorizing imprisonment and/or deprivation of
liberty of movement are contrary to the Federal Constitution and therefore null and void. In this
situation, Article 9 of the Constitution has no application or validity. The freedom to freely travel
within the Federation and to live in any part thereof" is not an absolute and unqualified right, as
it is said to be subject to any law relating to the Federation's or any part of its protection, public
order, public health, or the punishment of offenders.
The Special Powers of Sabah and Sarawak are the limitation in Article 9(3). The Constitution
allows the Borneo States to control the entry of people from other Malaysian states into either
state by federal legislation. The Immigration Act of 1963 gives each of the Borneo States broad
authority over who enters and stays in the country. To enter Sabah, a West Malaysian needs an
Entry Permit. The Director of Immigration for Sabah issues such an entry permit under Section
66 of the Immigration Act 1959/63, Act 155.

In the case of Dato Syed Kechik v Government of Malaysia, the appellant was born in Kedah
and was worried that Sabah will expel him. The court held that Art 9 is subjected to Immigration
Act 1963 where Sabah is having full control on the entry and residence in the state. Such law
was the exception under Art 9 where Sabah is able to treat an ordinary citizen from Peninsular
Malaysia who is seeking to enter into the state as a non-citizen.

In the case of Sugumar Balakrishnan & Others v. Pihak Berkuasa Negeri Sabah [2002].
Although Art 9 (2) states that every person has the right to freely travel within the Federation and
to live in any part of it, it is subject to Art 9(3) due to Section 60(2) of the Malaysia Act 1963,
among other things. “Clearly refers to Sabah and Sarawak, both of which enjoy such a special
position,” says Article 9(3) of the Constitution. The qualification's aim is to ensure that
constitutional challenges to these states' special immigration powers, which could be used to
control entry from Peninsular Malaysia, are barred.”
For the Validity of Suspension of Driving License under the Road Transport Act 1987, the right
to get a driver's license and drive on the road would be checked. Art embodies freedom of
movement on the route, 9 (2). Any statute relating to public order" is specifically made subject to
the right as an individual cannot drive on the road without a valid driver's license. Suspension of
a driver's license means that a person's ability to drive on the road has been taken away. Sections
32, 35, 36, and 41(5) of the Road Transport Act 1987 may be used to impose such a suspension.
On the road, however, freedom of movement is restricted by the overarching interests of public
safety. Despite the fact that s. 41(5) is unconstitutional, the qualification in art. 9(2) of the
Federal Constitution, as well as judicial interpretations of the words "public order" and "public
security," expressly authorize it. In Sections 32, 35, 36, and 41(5), the government policy and
justification for suspending a driver's license is specified in the document, namely, "it would not
be in the interests of public safety for him (the driver) to hold a valid driving license."
The goal of "public safety" is a subset of the larger principle of "public order," and maintaining
public order is synonymous with maintaining public tranquility. In most cases, "public
protection" refers to the public's safety or their freedom from harm. In the sense of ss. 35, 35A,
and 36, "public safety" refers to the general public's safety or freedom from danger to life and
limb (1.e., threats of death and bodily injury) when exercising their right to free travel on the
roads. In other words, the health and security of the general public on the road.
In conclusion, the Malaysian people are protected by this article from being expelled from the
country. It also states that every person has the right to freely move within the Federation, but
Parliament has the authority to place restrictions on people traveling from Peninsular Malaysia to
Sabah and Sarawak.

Explain Article 10(1)(a) and Article 10(2)(a) of the Federal Constitution.

Support your answer with relevant authorities.

Article 10 of the Federal Constitution is considered as one of the most controversial

provisions under the chapter of fundamental liberties, this is because in general, the freedom of
speech and expression, right to assembly and right to association are collectively known as
“political rights” as these three rights allow one to exercise political freedom effectively.
However, such rights must be observed with caution because freedom without responsibility will
result in anarchy. Restrictions are necessary to be imposed to prevent abuse of these rights for
the vicious purposes such as spreading false rumors which tarnishes other people’s reputation.
Thus, countries that adopted these rights in their laws often provided restrictions to ensure
accountability.
With regards to freedom of speech, Article 10(1)(a) of FC states that every citizen has the
right to freedom of speech and expression. There is no definition stated in the FC of Malaysia.
Whereas, according to Article 10(1) of European Convention on Human Rights, “Everyone has
the right to freedom of expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference of public authority and regardless
of frontiers”. Thus, the function of freedom of speech and expression is mainly to establish a
platform or medium for the people to express their own opinion and perspective, challenge the
dominant views within society, present alternative ideas and opinions, and promote the interests
and views of minority groups and marginalized sections of society.

In the case of Lau Dak Kee v PP, the court held that Article 10(1) of FC is guaranteeing the
rights to freedom of speech, assembly and association of all citizen in Malaysia. However, such
rights are subjected to any laws passed by the Parliament. It is notable that such judgement is
indeed different from that of the US Constitution where the no law that is restricting, inter alia,
the freedom of speech, press, or peaceful assembly is able to be passed in the Congress.

However, such judgement was deemed to be wrong and contradicting to the original intent of the
Reid Commission by many experts as the report of Reid Commission has recommended that the
guarantee enshrined under the FC is supreme and the court has the power and duty to enforce
such rights and annul any violation attempt be it by legislative or administrative or otherwise. In
short, it suggests that the court shall take a critical approach in restricting the fundamental
liberties. Thus, they shall not just administer all the laws that are passed by the Parliament.

In PP v Pung Chen Choon, the court held that it has duty to consider all impugned law
separately and take into consideration the nature of the right that was alleged to have been
infringed. However, until now, there was no occasion where a law was declared to be
unconstitutional by the court.

In PP v Khong Teng Khen, the court held that there will be a presumption that an impugned
law is constitutional.

Restriction

However, under Art 10(2)(a) of the Federal Constitution, it states that the parliament is able to
make law to govern the freedom of speech and expression that is provided under Art 10(1)(a) of
the Federal Constitution if the restriction is deemed to be necessary in order to protect the
interest or the security of the federation, secure the friendly relation with other countries, protect
the public order or morality, protect the dignity and privileges of the parliament or any state
legislative assemblies, upheld the dignity of the court, prevent defamation, or prevent the
incitement of any offence. In plain words, the right to freedom of speech that is guaranteed by
Art 10(1)(a) of the Federal Constitution is subjected to the law that is imposed by the parliament
on 8 grounds.

Under Art 10(4) of the FC, the freedom to question 4 politically sensitive matters, namely, the
right to citizenship; status of Malay language; position and privileges of the Malays and Natives
of Sabah and Sarawak; and the prerogative of Malay Sultans and Ruling Chiefs of Negeri
Sembilan, is restricted under the act of Parliament.
In the case of Madhacan Nair v. PP, the accused of the case was charged for violation of
condition stipulated under a licence issued under the PA1967 that requires him to not touch the
status of national language in a speech. The court held thaht the restriction was constitutional as
it is in compliance with Art 10(4) of the FC.

For example, statutes such as the Sedition Act 1948; Printing Presses and Publications Act 1984
and Internal Security Act 1960 (ISA) [repealed & replaced by the Security Offences (Special
Measures) Act 2012 (SOSMA)] and so on are deemed to be statutes that are passed by the
parliament with a view of restricting the right to freedom of speech of its citizens.

The Sedition Act 1948 was enacted by British in the year of 1948 and was amended after the
racial riots that has happened in the year of 1969. Such amendment was made to prevent the
provocation of racial sensitivities among the citizens of Malaysia.

Under S2 and 3(1) of the Sedition Act 1948, it states that all the act, speech, words or
publication that are having the tendency of: bringing hatred or contempt or excite disaffection
against any ruler or government; bringing hatred or contempt the administration of justice;
raising disaffection among the public; and questioning provisions for language, citizenship,
special privileges, will be considered as seditious act.

In the case of Mark Koding, the court held that the parliamentary privilege will not exempt a
person from being prosecuted by the sedition law. Hence, the appellant is guilty for sedition.

In Param Cumaraswamy, the court held that the intention to incite to violence or public
disorder and its actual occurrence is not necessarily needed to establish sedition. As long as the
words that have tendency to cause ill-will amongst the public was published intentionally, the
offence of sedition is complete.

It was assured by the case of Oh Keng Seng, where the court held that sedition offence is
emphasised on the seditious tendency. If the seditious tendency is able to be established, the
truthfulness of the statement is immaterial to the court.

In Lim Guan Eng v. PP, the appellant was charged for bringing into hatred or contempt the
administration of justice. The COA held that the appellant was guilty and was therefore
convicted.

In Ooi Kee saik, the court held that the speech by defendant may raise disaffection and
disharmony among the races. Therefore, he was convicted for sedition.

In Melan bin Abdullah, the defendant was an editor and had called for abolition of vernacular
schools. The court held that such act is amounted to sedition.

As for the freedom in press and publication and the licensing of newspaper, it was governed by
the Printing Presses and Publications Act 1984.
In the case of Minister of Home Affairs, Malaysia v. Persatuan Aliran Kesedaran Negara
[1990] 1 CLJ 699, the court held that a minister, under S12(2) of the Printing and Publication
Act 1984, is able to, in his discretion, refuse a permit or licence, despite being subjected to
judicial review on ground of illegality, irrationality, and procedural impropriety. In this case, the
respondent had sought to apply licence to publish magazine in Malay language. On the refusal to
grant such licence by the appellant, he contended that such refusal is in violation of Art 8, 10 and
152 of the FC. The court had rejected the claim and held there was no proof of abuse of power
by the minister in the case.

In the case of PP v. Pung Chin Choon, the court held that S8 of the PPPA is falling within the
permitted restriction in Art 10(2)(a) of the FC as malicious publication of false news is able to
threaten the internal security and public order of the nation and also undermine the friendly
relation of Malaysia with other countries.

In regards to the contempt of court, in Lim Kit Siang v Dato Seri Dr. Mahathir Mohamad, the
plaintiff alleged that the criticise of the then PM on the court for interpreting the statute in a
manner that is contradicting with the intention of the Parliament was a challenge to the judiciary
and separation of power in Malaysia and is also intimidating the judiciary. The court held that
the criticise does not constitute contempt of court as it is merely an express of frustration of the
executives.

In Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar, the Bar had made an application to
send the defendant to prison for alleged contempt by interfering a sitting in the SC. The court had
refused the application due to the lack of locus standi.

In AG v Manjeet Singh Dhillon, the court held that the criticism in an affidavit alleging that the
Chief Justice was unfit to be LP must be done in a reasonably polite manner and with good faith.
Hence, the act of the accused has amounted to contempt of court.

In AG v Arthur Lee Meng Kuang, the accused was alleged to have criticised the decision made
by the Supreme Court and had alleged that the decision was biased and unjust. The court held
that it has amounted to contempt in scandalising court or judge.

As for the use of network facilities or network services, the Communications and Multimedia
Act 1998 was used in this respect.

Under S233 of Communications and Multimedia Act 1998, anyone who has knowingly
created, and initiated the transmission of communication that is obscene, indecent, false,
menacing or offensive in nature with the intention of annoying, abusing, threatening, or
harassing any other person through the internet; or initiated a communication by any application
service with the abovementioned intention at any number or electronic address will be liable for
fine up to RM50,000 or imprisonment up to 1 year or both and with a further fine of RM1,000
for every day of the continuance of the offence after convicted.

In the recent case of Mohd Fahmi Reza Bin Mohd Zarin v Pendakwa Raya [2020] 7 MLJ
399, the appellant was facing charge against s.233(1)(a) of Communications and Multimedia Act
1998 for posting a fake post with the intention to hurt others. There were three elements analysed
by the court that must be fulfilled in order to establish the charge. Firstly, the appellant has used
his Facebook profile page application and has consciously made and sent a communication.
Secondly, such post or news is false in nature. Thirdly, such post or news is with the intention of
the appellant to offend others. The High Court held that the view of the appellant, once expressed
in the form of communication, will not excuse him from being govern by law. Since such work
was produced with the intention of injuring others, the appellant is not protected under the FC for
his freedom of expression. Hence, he was liable for RM10,000 fine, if not paid will be
imprisoned 1 month.

In conclusion, the right to freedom of speech and expression was given under the FC to all the
citizens of Malaysia. However, such right was not absolute as it might offend the feeling of
others given that we are living in a multiracial community or it might lead to an undesired event
such as the May 13 racial riot. It was however observed that the restrictions are widely drafted.
Hence, every single word must be given extra prudence to avoid unpleasant consequence. –
shorten conclu

Explain Article 10(1)(b) and Article 10(2)(b) of the Federal Constitution.

Support your answer with relevant authorities.

On the other hand, Article 10(1)(b) of FC provides that all citizens have the right to assemble
peaceably and without arms. There is no mention of processions and pickets. These are
presumably constitutional rights as procession is an assembly in motion. To strike a balance
between legitimate political expression and the need to preserve peace, Art 10(2)(b) permits
Parliament to impose restrictions on freedom of assembly on grounds of security and public
order. In addition, Art 149 and 150 can suspend or side-step this constitutional safeguard. In the
case of Lau Dak Kee v PP , Azmi J said that rights given by Art 10(1) were subject to ‘any law’.
This phrase must have meant ‘any valid law’. A law which is not authorized by Art 10(2), 149
and 150 is not a valid law.
Art 10(2) provides the restriction of assemble. Right to assembly was previously governed by
Police Act 1967, after the act is being repealed, right to assembly is then being regulated under
The Peaceful Assembly Act. Such statute aims to enable people to assemble peacefully without
arms. However, Section 9 of PAA provides that the organiser still needs to inform the police
department at least 5 days before the assembly as well as the person in interest. Even though the
police cannot restrict the people from assembling, the police are still able to restrict the assembly
in many ways such as the number of speakers, and the assembly may not be allowed to conduct
according to the organizer’s wishes. Besides, as being provided under Section 4(2)(e) &(f) of
PAA, non- citizens and children below the age of 18 are not allowed to organise and participate
in assembly. If the organiser and participants fail to follow the instruction given, the police can
instruct the organiser to disperse the assembly as it is unlawful.
In the case of Chai Chun Hong v Ketua Polis Daerah Kampar, Abdoolcaderi held that a
restriction on number of speakers after dinner speech held by the opposition DAP was void for
unreasonableness under the Police Act because the licence already restricted the function with
regard of time, so that the number of speakers are irrelevant. In Chua Beng Poh v PP, 42 lawyers
were charged for taking part in what was called an unlawful assembly. The High Court ruled that
public meetings or procession even if they are spontaneous, is unlawful if it takes place without a
police permit. The view taken here is that a gathering would fall under the term assembly in the
statute even if there is no intention to do so. In Madhavan Nair v PP, the accused was charged
with contravening a condition on a license under the Police Act to make a speech which required
him not to touch on the status of the national language. Chang Min Tat J held that restriction was
constitutional under Article 10(4).
As a final remark, it should be highlighted that freedom of expression is a fundamental human
right that must be upheld in democratic societies and we do have freedom of speech and
expression in this day but the freedom given is not absolute. However, too much freedom might
cause unexpected riot cases such as the racial riot on May 13, 1969. Even in western
democracies, laws are curtailing protest activities and threatening press freedom and free speech
through mandatory metadata retention schemes. Therefore, as a Malaysian who lives in such a
multiracial society, every single word must be taken note carefully as they might offend or hurt
others feelings. Besides, the government also plays an important role in enforcing the law
without abusing the law. Only then everyone will be vested with equal rights to do whatever they
want without breaking the laws as being stated in the Federal Constitution.

Under Art 10(1)(b) of the Federal Constitution, the freedom of assembly of all citizens is
protected.

Assembly was previously being governed by the Police Act, where gathering of more than three
persons in public areas will require a licence and it has to be applied 14 days prior to that. Such
requirement was stated in Siva Segara Kanapathi Pillay v. Public Prosecutor [1984] 2 CLJ 95
where the court held that a licence from the Officer in Charge of such Police District is a must
for an assembly to be held. The Officer in Charge of such Police District only has the discretion
to grant or to refuse such application if such application in his opinion, will cause disturbance in
the peace of the country. The security of the federation is also said to be the only ground that the
Officer in Charge of such Police District is able to rely on to refuse the application of licence.

Today, the Peaceful Assembly Act 2012 has come into play in the governance of assembly.

In the case of Maria Chin Abdullah v. PP [2016] 5 CLJ 428, the court held that the Peaceful
Assembly Act 2012 is an act that was passed by the Parliament with the intention of permitting
assembly to be held in a lawful and peaceful manner. Such assembly shall be not armed and the
restrictions that were imposed shall be proportioned or suited to the circumstances merely for the
sake of protecting the safety and harmony of the federation and also the fundamental liberty of
other persons, but shall not be more than that as the right to assembly that is guaranteed under
Art 10 of the Federal Constitution shall always be taken into consideration.

Restriction
However, similar to all other rights, the right to assembly is also a right that is provided with
exception.

In the case of Chai Choon Hon v Ketua Polis Daerah, Kampar, the court held that it is
unreasonable to restrict the number of speakers in a dinner speech held by DAP as the licence
has restricted the time of the dinner. The number of speakers is irrelevant in this respect and such
restriction is therefore void for unreasonableness under the Police Act.

In the case of Chua Beng Poh v PP, 42 lawyers were charged for taking part in unlawful
assembly. The court held that a public meeting without a police permit is unlawful even if such
assembly was made spontaneously. In other words, a gathering, even no intention of assembly, is
falling within the meaning of assembly.

In conclusion, the right to freedom of assembly was given under the FC to all the citizens of
Malaysia. Undeniably, such right was a vital element under a democratic society, but it was not
absolutely given to secure the security and public order of the nation. It was however observed
that the restrictions are widely drafted. Hence, a narrower amendment might be needed to avoid
an unpleasant arbitrary governance.

Art 10(1)(c), (2)(c) of Federal Constitution (Association)

Under Art 10(1)(c) of the FC, the freedom to form association of the citizen was protected.
Societies Act 1996 is the main statute that is governing the freedom of association in Malaysia.
Trade Union Act 1959, Universities and University Colleges Act 1971 are also another statute
that are governing the freedom of association in Malaysia.

In Malaysian Bar v. Government of Malaysia, the court held that Art 10 is not giving any right
to the citizen to manage an association, but merely to form it.

In Dewan Undangan Negeri Kelantan v. Nordin bin Salleh, the court held that the State
Constitution of Kelantan that provides for the seat of a ADUN to be vacated if he has ceased to
be a member of a particular political party is unconstitutional as the right of association is also
including the right to dissociate.

Restriction

Under Art 10(2)(c) of the FC, the freedom of association of citizens is able to be restricted for
security, public order, or morality concern.

Under Art 10(3) of the FC, it states that the restriction on the freedom to form association is
subjected to laws related to labour or education.

In conclusion, the right to freedom of association was given under the FC to all the citizens of
Malaysia. Undeniably, such right was a vital element under a democratic society, but it was not
absolutely given to secure the security, morality and public order of the nation. It was however
observed that the restrictions for such right are relatively more tolerable as it has upheld the spirit
of democracy.

OVERALL CONCLUSION FOR Arts 5-13,

although the rights are provided under this art but these rights are not absolute – always
have restrictions, limitations provided which allow the parliament to enact laws to restrict
or limit fundamental liberties

PROB QUESTION – freedom of speech and assembly – party hopping

IS: reject license – freedom of expression

The first issue is whether the Home Ministry rejection of Adi’s application for the license is
unconstitutional as it violates Article 10(1)(a) of the Federal Constitution (hereinafter referred as
FC).

The relevant authorities are Article 10(1)(a) of the FC, Article 10(2)(a) of the FC, Section 3(3) of
the Printing Presses and Publications Act 1984 (hereinafter referred as PPPA 1984), the case of
Persatuan Aliran Kesadaran Negara v Minister of Home Affairs, Section 7(1) of the PPPA 1984
and Section 13 of PPPA 1984.

Article 10(1)(a) of the FC, subjected to clauses (2), (3) and (4), all citizens are entitled to the
right to freedom of speech and expression.

Since Adi is a Malaysian, he shall be given the right to freedom of speech and expression.
However, such of a right is subjected to restricting the provisions such as clauses (2), (3) and (4)
of Article 10 of the FC. The freedom of speech and expression as provided under Article 10(1)
(a) encompasses Based on the facts, Adi has freedom of speech and expression as enshrined
under Art 10(1)(a) of FC to publish news and expressing views in the newspapers and he has
applied for a license to establish a new party's newspapers called Suara Bebas.

According to Article 10(2)(a) of the FC, the Parliament is given the power to enact law to impose
restrictions on freedom of speech and expression on several grounds such as security of the
Federation, public order, contempt of court and morality.

However, freedom of speech and expression is not absolute and it is restricted by the restrictions
under Art 10(2)(a) of FC. The parliament is empowered by Art 10(2)(a) of FC to enact
legislations to restrict or limit the freedom of speech and expression (enshrined under Article
10(1)(a) of FC). The PPPA 1984 is actually a law enacted by the Parliament on the ground of
security of the Federation, public order and morality. Therefore, such law does not contravene
Article 10(1) (a) of the FC even though it restricts the freedom of speech and expression of Adi.

Based on Section 3(3) of the PPPA 1984, the Home can refuse, revoke or suspend the license at
any time.
In the case of Persatuan Aliran Kesadaran Negara v Minister of Home Affairs, the respondent
applied for a permit to print and publish the monthly journal in Bahasa Malaysia under Section
6(1) of the Printing Presses and Publications Act 1984. Unfortunately, the applied license was
refused by the Minister of Home Affairs. In the beginning, it was held that the refusal of license
was unreasonable. Later, the Supreme Court held that the Minister of Home of Home Affairs’
decision of rejecting the respondent’s application to apply the license to print and publish the
monthly journal was done in absolute discretion.

F: Aliran applied for a license to publish a Bahasa Malaysia version of their magazine, "Seruan
Aliran" in addition to its English monthly publication Aliran Monthly. o But their application
was rejected by the Home Minister without any given reason. Aliran brought the matter to the
High Court for a judicial review of the Minister's "absolute discretion" in granting the license.
The High Court ruled in favour of Aliran. o At appeal, Supreme Court quashed High Court's
decision and held that S 12(2) of PPPA gives the Home Minister absolute discretion to reject any
application for license.

Applying the above stated case to the facts of the case, the Home Minister can refuse Adi’s
application at any time, and thus the rejection in the question is constitutional and lawful, the
minister had the absolute discretion in refusing Adi’s application, and such decision is not
subject to judicial review.

Section 7 of PPPA 1984, the Home Minister has the power to prohibit any publication which is
likely to be prejudicial to public order, morality, security, or which is likely to alarm public
opinion.

In relation back to our case, Adi wished to publish Suara Bebas in order to regain the supports of
the voters. This could be prejudicial to the grounds mentioned above because by publishing such
press, it might influence the voters’ mind and cause the voters to act against the ruling party.
Hence, the home Minister can prohibit the publication of Suara Bebas.

Section 13A of PPPA 1984, states that the decision made by the Home Minister is finalized.

Therefore, of Adi protests the decision by the Home Minister, it would be vain as the decision is
already final.

In conclusion, it is most likely that the Home Minister’s decision in rejecting Adi’s application
for license is likely constitutional even though it contravenes Article 10(1)(a) of the FC as it has
been protected by Article 10(2)(a) of the FC.

IS: illegal assembly – children and prohibited place

The second issue is whether Adi’s planned assembly contravenes with Article 10(1)(b) of the
FC. / whether Adli had organised an illegal assembly violating Article 10(1)(b) of the FC and the
Peaceful Assembly Act 2012.
The relevant authorities are Article 10(1)(b) of the FC, Article 10(2)(b) of the FC, Section 4(1) of
PAA 2012, Section 4(2) of PAA 2012, Section 3 and the First Schedule of PAA 2012, Section
9(1) of PAA 2012, Section 9(5) of PAA 2012 and Section 20(1) of PAA 2012.

Article 10(1)(b) of the FC, subjected to Clauses (2), (3) and (4), states that all citizens are entitled
to the right to assemble peaceably.

As stated in the fact, Adi is a Malaysian citizen, he shall have the right to assemble peaceably.
However, in his right is subject to restricting provisions such as clauses (2), (3) and (4) of Article
10 of the FC. In fact, the provision itself mentioned “assemble without arms”. Since Adi had
asked his supporters to bring firearms to the assembly, it is most likely that his right is not
guaranteed under the provision.

Article 10(2)(b) of the FC, states that the Parliament is given the power to enact any law to
impose restrictions on freedom of assembly on the grounds of national security or public order.

Thus, the Parliament had enacted PAA 2012 on the ground of national security and public order
and such law shall be valid in restricting the freedom of assembly of Adi.

In accordance with Section 4(1)(e) of the PAA 2012, the right to organize or participate in an
assembly peaceably and without firearms is not applicable to a non- citizen, an assembly held at
any prohibited place and within 50m from the limit of the prohibited place, assembly organized
by a person below 21 years old and assembly which involves participation of a child.

Section 4(2) of the PAA 2012 provides that it is an offence if the above provision is contravened.
A person commits an offence if (e) being a child, he participates in an assembly other than an
assembly specified in the Second Schedule; or (f) he recruits or brings a child to an assembly or
allows a child to attend an assembly other than an assembly specified in the Second Schedule.

Section 4(3) of the PAA states that a person who commits an offence under paragraph (2)(a), (b),
(c), (d) or (e) shall, on conviction, be liable to a fine not exceeding ten thousand ringgit. S4(4) of
the PAA provides that a person who commits an offence under paragraph (2)(f) shall, on
conviction, be liable to a fine not exceeding twenty thousand ringgit.

Adi and the participants (e.g., children's parents) who violated S 4(2)(f) of PAA 2012 shall be
liable to a fine if convicted under S 4(4) of PAA 2012. Under S 4(2)(f) of PAA 2012, Adi and
the participants (e.g., children's parents) commit an offence if they brought or allowed children to
attend the assembly. Pursuant to S 4(3) of PAA 2012, those who violated S 4(2)(e) of PAA 2012
i.e., children who attended Adi's assembly shall be liable to a fine if convicted.

Section 3 and the First Schedule of PAA 2012 defines “prohibited place” as petrol stations,
hospital, fire stations and etc.

Since Adi’s assembly was held just 20 meters from Hospital Kuala Lumpur which could be most
likely a prohibited place, and he also asked the supporters to bring over their children to the
assembly, he is not entitled to the right to organize or participate in an assembly peaceably and
without firearms and he is said to have committed offences.

Section 9(1) of PAA 2012, the organizer of an assembly must notify the OCPD 5 days prior the
assembly. The failure to do so is an offence punishable under Section 9(5) of PAA 2012.

Therefore, since Adi had failed to inform the police before the assembly, so he committed an
offence.

Section 20(1) of PAA 2012, a police officer may without warrant, arrest any organizer or
participant who possessed any arms, or who recruits or brings a child to an assembly other than
an assembly specified in the Second Schedule.

Hence, the arrestment of Adi is justified and does not breach the rule of law, because Adi had
recruited children to the assembly in question, which is entitled the police to arrest him without
warrant.

In conclusion, it is highly possible that Adi’s planned assembly is not protected by Article 10(1)
(b) of the FC as it violates several provisions stated in PAA 2012.

IS: anti-hopping law is unconstitutional

The third issue is whether the anti- hoping law is against Article 10(1)(c) of the FC.

Article 10(1)(c) of FC, subjected to clauses (2), (3), and (4), all citizens are entitled to the right to
form associations. Freedom of association is one of the most basic rights enjoyed by humans. It
ensures that every individual is free to organise and to form and participate in groups, either
formally or informally

Thus, Adi is entitled to the right to form associations, subject to clause (2), (3) and (4). Adi has
the freedom of association as enshrined in Art 10(1)(c) of FC and this includes Adi's right to
dissociate with People's Party of Liberty and join another party i.e., Pakatan Sedar. However,
freedom of association under Art 10(1)(c) of FC is not absolute

Under Art 10(2)(c) of the FC, the freedom of association of citizens is able to be restricted for
security, public order, or morality concern.

The parliament is empowered by Art 10(2)(c) of FC to enact legislations to restrict or limit the
freedom of association (enshrined under Article 10(1)(c) of FC). Thus, the Parliament is allowed
to enact an anti-hopping law to restrict the freedom of association.

In the case of Dewan Undangan Negeri Kelantan v Nordin bin Salleh, there was an amendment
to the Constitution of Kelantan which provided the vacation of seat of a member of the
Legislative Assembly if he ceases to be a member of political party. The court held that the
amendment had violated Article 10(1)(c) of the FC. Hence, the court held that the right to form
associations includes the right to disassociate form an existing association, and for the state to
impose a sanction on practising such rights would be unconstitutional.

Referring to the decision in the Nordin Bin Salleh case, it would be evident that such anti-
hopping law would be unconstitutional. In addition, Article 10(2) (c) of FC had made provisions
for Parliament to enact laws to restrict the freedom of association. However, Nordin Bin Salleh's
case could be distinguished since the state of Kelantan was seeking to enforce a state law (state
constitution) and not a law enacted by Parliament. Since there is no precedent where a law
enacted by Parliament was declared unconstitutional by the court, the decision in Nordin Bin
Salleh's case may be applicable. In relation back to our case, since Adi is entitled to the right
form associations, he shall also be entitled the right to disassociate from an existing association.
Thus, Adi still have the right to quit his own party and also, he has the right to join Pakatan
Sedar.

In conclusion, it is most likely that the anti- hoping law is against Article 10(1)(c) of the FC. /is
unconstitutional.

IS: whether Adli has committed a seditious act and contempt of court by
criticising judges

The fourth issue is whether Adi’s accusation against the judge amounts to the contempt of court
and that he is not protected under Article 10(1)(a) of the FC and the Sedition Act 1948.

The relevant authorities are Article 10(1)(a) of the FC, Article 10(2)(a) of the FC and the case of
AG v Arthur Lee Meng Kuang.

Under Art 10(1)(a) of the Federal Constitution, it states that the freedom of speech and
expression is entitled by all the citizens of Malaysia.

According Article 10(1)(a) of the FC, Adi shall be given the right to freedom of speech and
expression. However, such a right is subjected to restricting the provisions of Clauses (2), (3) and
(4) of the Article 10 of the FC.

However, under Art 10(2)(a) of the Federal Constitution, it states that the parliament is able to
make law to govern the freedom of speech and expression that is provided under Art 10(1)(a) of
the Federal Constitution if the restriction is deemed to be necessary in order to protect the
interest or the security of the federation, secure the friendly relation with other countries, protect
the public order or morality, protect the dignity and privileges of the parliament or any state
legislative assemblies, upheld the dignity of the court, prevent defamation, or prevent the
incitement of any offence.

As mentioned, such freedom may be restricted by the rule of contempt of court in accordance
with Article 10(2)(a) of the FC. Sedition Act is a legislation enacted by the parliament to restrict
the freedom of speech and expression as enshrined in Art 10(1)(a) of FC. Contempt of court is
another restriction imposed to restrict the freedom of speech and expression as enshrined in Art
10(1)(a) of FC.
Section 2 and Section 3 of the Sedition Act 1948 states that any sort of act, speech, words and
publication are seditious if it has the tendency of bringing hatred against any ruler or
government, as stated in the case of Param Cumaraswamy. In this case, a lawyer had acted for
his client who was charged with possession of firearms. This offence carried mandatory penalty.
The accused made a statement to reconsider the punishment and proceeded to make comparison
with a case of one minister on firearms. It was held that he was not guilty as it was just an
advice.
Applying Section 2 and Section 3 of the Seditious Act to the case above, Adi’s words and act
excites dissatisfaction towards the judges. Adi's statement regarding the court was biased and
unjust in convicting him and the judges are acting solely for the Prime Minister may amount to a
seditious act or a contempt of court.
Adi's statement may be seditious as it may bring into hatred or contempt or excite disaffection
against the government and the judiciary pursuant to Param Cumaraswamy's case.

In Lim Guan Eng v. PP, the appellant was charged for bringing into hatred or contempt the
administration of justice. The COA held that the appellant was guilty and was therefore
convicted.

Under Lim Guan Eng's case, Adi's statement may bring into hatred or contempt the
administration of justice when he said court was biased and unjust in convicting and the judges
are acting solely for the Prime Minister.

In regards to the contempt of court, in Lim Kit Siang v Dato Seri Dr. Mahathir Mohamad, the
plaintiff alleged that the criticise of the then PM on the court for interpreting the statute in a
manner that is contradicting with the intention of the Parliament was a challenge to the judiciary
and separation of power in Malaysia and is also intimidating the judiciary. The court held that
the criticise does not constitute contempt of court as it is merely an express of frustration of the
executives.

Adi may escape the conviction for contempt of court if his statement was considered as a mere
showing of despair on the inadequacies of the law pursuant to Lim Kit Siang v Dato Seri Dr.
Mahathir Mohamad.
There is a recent precedent which is Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor
[2020]: The Federal Court ruled that Malaysiakini is liable for contempt of court over its readers
comments (criticising the judiciary) and fined the company RM500,000. Since readers'
comments (criticising the judiciary) are considered as a contempt of court, Adi's statement
(criticising the judiciary) may also amount to contempt of court pursuant to the said latest
precedent.

In conclusion, it is most likely that Adi’s accusation against the judge is does amount to the
contempt of court, as he is not protected by Article 10(1)(a) of the Fc as well as the Sedition Act
1948.
It is highly possibly that Adi has committed a seditious act and a contempt of court by criticising
the judges.

PROB QUESTION – upload picture violate freedom of speech

IS: whether pic upload violate article 10

The first issue is whether Fred, who uploaded caricature image of the former prime minister of
Malaysia on social media has violated the Freedom of speech and expression under Article 10 of
Federal Constitution.

The freedom of speech and expression is enshrined in Article 10(1)(a) of FC while Article 10 (2)
(a) of FC connotes the restriction to the freedom of speech and expression in which the
Parliament is empowered by such provision to enact legislations to restrict or limit the freedom
of speech and expression enshrined by Article 10(1) of FC.

With regards to Communication and Multimedia Act 1997, Section 233 of the Communication
and Multimedia Act 1988 provides the improper use of network facilities or network service
extend to a person who (a) by means of any network facilities or network service or applications
service knowingly (i) makes, creates or solicits; and (ii) initiates the transmission of, any
comment, request, suggestion or other communication which is obscene, indecent, false,
menacing or offensive in character with intent to annoy, abuse, threaten or harass another person;
or (b) initiates a communication using any applications service, whether continuously, repeatedly
or otherwise, during which communication may or may not ensue, with or without disclosing his
identity and with intent to annoy, abuse, threaten or harass any person at any number or
electronic address, is considered to have committed an offence.

In the case of Mohd Fahmi Reza bin Mohd Zarin lwn Pendakwa Raya [2020] 7 MLJ 399 (High
Court), the Appellant was charged under Section 233(1)(a) of the CMA 1998 for sending false
communications. The Sessions Court sentenced the appellant to one-month jail and a fine of
RM30,000.00. The appellant then appealed to the High Court. The High Court held that under
Section 233, the prosecution must prove the following three elements, the appellant has used his
Facebook page application to upload the communication; the communication is false in nature;
and the communication was uploaded with intent on the appellant’s behalf to injure the other
person. The Appellant argued that the caricature was uploaded as a form of a joke without any
intention to annoy. The Court decided in favour of the Respondent.

With reference to the facts given, freedom of speech and expression under Art 10(1)(a) of FC
includes publishing image on social media. Based on the facts. Fred has freedom of speech and
expression as enshrined under Art 10(1) (a) of FC to publish image on social media. However,
freedom of speech and expression is not absolute and it is restricted by the restrictions under Art
10(2)(a) of FC.

The parliament is empowered by Art 10(2)(a) of FC to enact legislations to restrict or limit the
freedom of speech and expression (enshrined under Article 10(1)(a) of FC). Under Art 10(2)(a)
FC, the Parliament can impose restrictions on freedom of speech & expression on grounds such
as Security of the Federation, public order, Morality, Contempt of Court etc. Communication and
Multimedia Act 1997 is a legislation enacted by the parliament to restrict the online freedom of
speech and expression. In our case, Fred who was the street artist uploaded a caricature image of
the former prime minister of Malaysia on social media with the aim of criticising the relevant
authorities for suppressing the freedom of communication on social media is unconstitutional.
This is because by publishing the caricature image of the former prime minister of Malaysia, it
had the possibility to influence the people’ mind and tends to harm the reputation of the former
Prime Minister so as to lower him in the estimation of the community. Thus, pursuant to Section
233 of CMA, Fred has initiated the transmission of communication which is obscene, indecent,
false, menacing or offensive in character with intent to annoy, abuse, threaten or harass the
former Prime Minister.

Moreover, the case of Mohd Fahmi Reza bin Mohd Zarin lwn Pendakwa Raya is applied in the
current circumstance as both situations are sharing the similar facts. Referring to the current
situation whereby Fred with intent to injure the former PM by way of uploading a caricature
image of him on his Facebook account has violated Section 233 of CMA. Thus, pursuant to the
case of Mohd Fahmi Reza bin Mohd Zarin v Pendakwa Raya, the court may prosecute Fred
under Section 233 of CMA on the ground that Fred had been utilising his Facebook page to
upload the communication which is false in nature; and with the intention on Fred’s behalf to
injure the former Prime Minister which exposes him to hatred, ridicule or contempt or causes
him to be shunned or avoided by right thinking members of society.

In conclusion, it is most likely that Fred, who uploaded caricature image of the former prime
minister of Malaysia on social media has violated the Freedom of speech and expression under
Article 10 of Federal Constitution.

CHAPTER 5 – ARTS 11,12,13

Question 1

Article 11 Essay

Freedom of religion is one of the fundamental liberties that are enshrined in the Federal
Constitution. Article 11 provided for freedom of religion to everyone. One is free to profess,
practice and propagate subject to limitation in article 11(4) in which state law and in respect of
Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control and restrict
the propagation of any religious doctrine or belief among persons professing the religion of
Islam/

Article 3 states that Islam is the religion of the federation, but others religion may be
practised in peace and harmony. Moreover, article 3(4) states that nothing in this article
derogates from any other provision in the constitution. This means that article 3 did not override
article 4 which stated that the Federal Constitution is the highest law of the land. In the case of
Che Omar Che Soh v PP, it is decided in the Federal Court that ‘Islam has an exalted position but
the shariah is not the supreme law of the land and is not the litmus test of the validity of any
law’. Religious laws and activities are subjected to the Federal Constitution; as such it is the
constitution that gives the State the power to administer and manage religion (article 74 and
Schedule 9 List II).

Article 11(1) gives freedom of conscience of the people to profess, practice and
propagate (subject to limitation) their religion. Profess here refers to belief and doctrine. Non-
Muslims have the absolute right to profess freely, but in the case of Muslim, it is not absolute as
there is law against apostasy and deviationist teaching and preaching. Even though Islam is not
stated in the constitution as being solely the Sunni school of thought, there is an increase
prosecution and discrimination against the other teaching of Islam’ school of thought such as the
Shia. Practice refers to exhibition of the belief through act; however it may be regulated under
article 11(5) on the ground of public order, public health and morality. Propagate refers to
attempts at propagation and transmission of one’s beliefs to others in order to convert them to
one’s faith. This is strictly restricted under article 11(4), which stated that the propagation may
be restricted to Muslim. Not only the non-Muslim are restricted to this article, but even the
Muslim are restricted to propagate and give religious talk to the public as they required tauliah
from the state. This can be seen in the case of Fathul Bari Mat Jahya v Majlis Agama Negeri
Sembilan.

Article 11(2) stated that there is no compulsion to support a religion other than their own.
This means that a non-Muslim is constitutionally entitled to refuse to contribute to the Muslim
religious funds such as zakat and baitulmal. However they can’t refuse to pay general tax such as
income tax even if part of it was allocated for Islamic purposes.

Article 11(3) stated that every religious group has the right to manage its own affairs; to
establish and maintain institutions for religious or charitable purposes; and to acquire and own
property and hold and administer it in accordance with law. This relates to the freedom to
practice one’s own religion as stated in article 11(1) of FC. From this, it is a constitutional right
for other religions to have their own institutions such as churches for Christians, temples for
Buddhist and Hindu and Gurdwara for Sikhs. This provision also extends to article 12(2) of FC
which every religion has the rights to establish and maintain institutions for educational
institutions.

Aside from Article 11 and Article 3 of FC, freedom of religion can also be seen in
numerous other articles in the Federal Constitution. Article 8(2) stated that no discrimination is
allowed on the ground of religion on aspects such as such as appointment to any office,
employment under public authority, holding or disposition of property or carrying on any trade,
business, profession, vocation or employment. Through such articles, This provides safeguard to
the freedom of religion for the citizens that they will not be discriminated against for their
religion in the aspects mentioned above. It is to ensure that freedom of religion is respected as
one of the Fundamental Liberties of the citizens of Malaysia and protected under the
Constitution.

Article 12(1) stated that there shall be no discrimination on the ground of religion in
relation to the rights of students to admission or fees in public authority’s educational institutions
and Article 12(2) gives right to every religious group to establish and maintain institutions for
religious education. Article 12(3) stated that “No person shall be required to receive instruction
in or to take part in any ceremony or act of worship of a religion other than his own.”

To illustrate, a Christian cannot be forced under any law to take part in act of worship of
Muslim even though Isalm is the official religion of the Federation. However, in the case of
Noorliyana Yasira [2007] where the applicant’s father requested for her daughter to be exempted
from attending the Islamic religious class in school, it is held by the court that one cannot refuse
instruction in one’s own religion.
 Freedom of Religion also provides a limit on power of article 149 of FC Legislation
against subversion, action prejudicial to public order, etc. This is provided in the case of Minister
v Jamaluddin bin Othman [1989] in which a preventive detention order under Internal Security
Act derived from article 149 cannot be issued on the ground that a convert out of Islam is
involved in a programme for propagation for Christianity amongst Malay. Article 149 power
cannot violate the fundamental liberty of article 11. Freedom of Religion also provides a limit on
power of article 150 of FC Proclamation of Emergency. Article 1506A) provides that
Proclamation of emergency cannot restrict freedom of religion.

Meanwhile, there are also restrictions on the extent of freedom of religion in Malaysia. In
article 11(3) of FC, the right to acquire and own property and to hold and administer it is subject
to local authority laws on planning permission. Land reservations should be made in all
townships for place of worship of all major religions in addition to the constitutional guarantees
of article 11(3) and 12(2) of FC. In article 11(4) of FC, propagation of other religions is subject
to certain restrictions. For example, State law may restrict the propagation of any religious
doctrine amongMuslims.

In addition, under article 12(3) of FC, the religion of a person under 18 years old I to be
decided by his parent or guardian as held by court in the case of Teoh Eng Huat [1990], which
the court held that a Buddhist girl age 17 must conform to the wishes of her parents in matter of
religious faith. In relation of conversion of minor, is was held in the case of Indira Gandhi Mutho
[2018] where the defendant on this case convert his children to Islam without the knowledge of
the plaintiff. The court held that it required the permission of both parents for conversion of
minors. Conversion although not specifically mentioned in the constitution, is alluded to in
article 18 of the Universal Declaration of Human Rights (UDHR) that has been given partial
recognition by section 4(4) of Malaysia’s Human Rights Commission ACT 1999. It stated that
everyone has the right to freedom of thought, conscience and religion which includes freedom to
change one religion or belief, either alone or in community with others.

On top of that, freedom of religion is not absolute as there are several limitations that
might raise special concern to both Muslims and non-Muslims. For example, article 11(5) gives
deference to public order, public health or morality. The effect of this is that any religious act
which is contrary to general laws relating to these grounds cannot be sustained under article 11.
Next, the restraints on religious freedom also developed through case laws, especially on the
scope of the word ‘practise’ in article 11. Freedom of religion extends only to practices and
rituals that are deemed essential and mandatory. In the case of Meor Atiqulrahman bin Ishak &
Ors v Fatimah Sihi & Ors , the court rejected demands by Muslim boys to be allowed to wear
turbans to school as it is not essential.

For the Muslims, there may be additional restraints to religious freedom by virtue of
Schedule 9, List II, paragraph 1 of the Constitution. This grants power to State Assemblies to
enact laws to punish Muslims for offences against the precepts of Islam. In Fathul Bari, the court
interpreted the words ‘precepts of Islam’ to mean anything about aqidah, Syariah and akhlaq.
This broad interpretation means that the State Enactments can criminalise virtually anything they
dislike. To illustrate, in the case of Muhammad Juzaili Mohd Khamis v State of Negeri
Sembilan, cross-dressing by males is a punishable offence.

Next, punishment of deviationism has increased from time to time since the Islamisation
in the 80s. Muslims who are not in the Sunni sect face severe scrutiny for “deviationist”
activities that are deemed to violate the basic precepts of their faith. This has led to suppression
of diversity in Islam as only “Ahl ul-Sunnah Waal-Jamaah” are regarded as Muslims. They are
also restricted to propagate their teaching as stipulated in article 11(4) as their school of thought
is not regarded as official Islam. Requirements of ‘tauliah’ for the Muslims are compulsory to
propagate and give religious talk to the public as seen in Fathul Bahri’s case.

In the case of apostasy for Muslims, in Malaysia it is detestable and a taboo subject. In
the Islamic textbook years ago, it is written that the punishment for apostasy is death. This is
revolting as Islamic teaching had turned to be radical even in syllabus for school pupils. In the
Lina Joy case, a Malay woman who practise the religion of Christianity but was born as Muslim
applied to change her religion that is stated in her Identification Card from Islam to Christianity.
Her application was rejected on the ground that the civil court has no jurisdiction over her as she
is under the jurisdiction of Syaria court because she is a Muslim. Muslims are subjected
compulsorily to the syaria on personal law matters.

Malay is often used interchangeably with Muslim. This is because the definition of Malay
in article 160 described that first requirement to be Malay is they have to profess the religion of
Islam. This means that Malay can’t profess other religion than Islam constitutionally. As Malay
consists of almost 63% of the total population, apostasy among Malay will cause outrage among
the public. This also causes inter-marriage between those of different race and religion difficult.
Non-Muslims need to convert to Islam before they married a Muslim. Freedom of religion and
conscience is lacking in this part.

Non-muslims were also affected on the limitation of their freedom of religion. Firstly, the
conflict of jurisdiction between syaria courts and civil courts which have cause many problems
in civil disputes. This can be seen in the case of Indira Ghandi and Subashini a/p Rajasingam v
Saravanan a/l Thangathoray, whereas the husband whom converted into Islam dissolved their
marriage in the Syaria court and convert their children to Islam, leaving their spouse who is non-
Muslim without justice. The civil court often remain quiet on the non-Muslim spouse right, even
if it does as decided in Indira Ghandi, the administration doesn’t give full cooperation. There is
instance whereas the civil court judges advise the non-Muslim party to subject herself to the
syaria court. Some judges also seem to ignore Article 3(4) by subordinating Article 4 which
make the constitution the highest law of the land to Article 3 which state that Islam if the religion
of the federation.

The number of religious extremism activities keeps arising from time to time. For
example, a protest was made to urge the state government to remove a cross symbol outside a
church recently. Freedom of religion is also restricted in the press such as book publication. For
instance Islamic authorities have seized more than 300 Bibles from the Bible Society because
they use the word Allah to refer to God. Moreover, a talk show in TV3 was banned by MCMC
for ‘inappropriate comment’ on propet Muhammad’s wife. This means that religion is highly
controlled even though freedom is expressed in Article 11 of the Federal Constitution.

Question 2
Critically explain the brief facts, relevant issues, judgment and legal principles of Indira Gandhi
a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ
545.

Facts: The Appellant in this case is a Hindu woman who contracted a civil marriage under the
Law Reform (Marriage and Divorce) Act 1976 (LRA) with one Pathmanathan a/l Kirshnan.
They had three children. Whilst the marriage was still subsisting, the husband converted to Islam
and obtained a custody order from the Syariah High Court (The Syariah Custody Order). The
Syariah Custody Order was made in the absence of the Appellant. The wife later received
certificates of conversion showing that the Registrar of Muallaf had registered all three children
as Muslims. The following year, the wife's divorce petition was allowed by the Ipoh High Court
on the ground that the husband had converted to Islam. The Civil Court granted to the wife
custody orders over all three children. This resulted in two contradictory custody orders granted
by both the Syariah Court and the Civil Court.

The Ipoh High Court qua Family Court, in dealing with the unilateral conversion of minor
children to Islam by their converted father, was compelled to wade through the complex and
thorny interface between civil law and Islamic law in Malaysia. In the event, in a soundly
reasoned decision delivered on 25 July 2013, the High Court quashed the minor children’s
conversion certificates obtained by the converted father (without the knowledge or consent of the
non-converting mother) and granted a declaration that the minor children had not been
converted. However, the Court of Appeal albeit with a strong dissent, reversed the High Court
decision on 30 December 2015.

Two stand-out issues in Indira Gandhi as decided by the High Court were, firstly, the right of the
non-converting parent to be heard before the minor children can be converted and, secondly, the
Federal Constitution did not take away the powers of the civil High Courts the moment a matter
came within the jurisdiction of the Syariah Courts, the latter being merely a creature of state law,
without the jurisdiction to decide on the constitutionality of matters said to be within its
exclusive purview. In addition, the third issue is concerning what if a Shariah related law
involves grave constitutional law questions about fundamental right or federal-state division
power?

In January 2018, the Malaysian Federal Court issued a unanimous decision in favor of Indira
Gandhi, voiding the children’s certificates of conversion (in the matter of Indira Gandhi a/p
Mutho v. Pengarah Jabatan Agama Islam Perak & Ors [2018] (Indira Gandhi (FC))– in which
there is both a main and a concurring judgment). The apex court’s decision is a landmark in
Malaysian constitutional jurisprudence for several reasons. First, the Court quashed the unilateral
conversions of the children, ruling that the constitutional right to equality requires that both
parents consent to change the religion of minor children. The Federal Court interpreted Article
12(4) of the Federal Constitution of Malaysia, which states that “the religion of a person under
the age of eighteen years shall be decided by his parent or guardian,” as requiring the consent of
both parents. It took a broad and purposive approach to interpreting the equal protection right,
holding that the right of a “parent” to determine a child’s religious upbringing meant that both
parents have an equal say in deciding a child’s conversion (Indira Gandhi (FC) at [181]).
A second significant implication is the Federal Court’s express declaration of the civil courts’
authority vis-à-vis the religious courts. Specifically, the Court affirmed that the civil courts have
authority to decide matters relating to Islamic law when constitutional issues are involved
(Indira Gandhi (FC) at [92]-[98]) – an immensely significant clarification of the jurisdictional
boundaries between the civil courts and Sharia courts, a contentious issue in Malaysia. Over the
past two decades, civil courts have increasingly deferred matters to the authority of the Sharia
courts (for more detail, see Yvonne Tew, “Stealth Theocracy”, 58, Virginia Journal of
International Law 31). In Indira Gandhi, the Federal Court markedly departed from earlier
precedent, declaring it “unduly simplistic” that “since matters of conversion involve Islamic law
and practice” the Sharia Courts “must have jurisdiction over such matters to the exclusion of the
civil courts”(Indira Gandhi (FC) at [104]). It was unequivocal that the civil courts retained
jurisdiction over such constitutional matters.

Third, and crucially, the Indira Gandhi decision firmly entrenched the constitutional basic
structure doctrine in Malaysian jurisprudence. In a sweeping opinion, the Malaysian Federal
Court referred to its own decision the year before in Semenyih Jaya v. Pentadbir Tanah Daerah
Hulu Langat [2017] 3 Malayan L.J. 561, to entrench the notion that certain fundamental features
of the Constitution are protected from alteration. The Court declared that “the power of judicial
review is essential to the constitutional role of the courts, and inherent in the basic structure of
the Constitution” and thus “cannot be amended or altered by Parliament by way of a
constitutional amendment” (Indira Gandhi (FC), at [48]). In articulating the scope of the
constitution’s basic structure, the Court explained that:

The Federal Constitution is premised on certain underlying principles…. [T]hese principles

include the separation of powers, the rule of law and the protection of minorities; these
principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or
removed. (Indira Gandhi (FC), at [90])

The constitutional amendment at stake in this case related to Article 121(1A) of the Malaysian
Constitution, which provides that the civil courts “shall have no jurisdiction in respect of any
matter within the jurisdiction of the Sharia courts.” Parliament had introduced this provision in
1988, when it passed amendments attempting to curb the judiciary’s powers. Specifically, it
sought to remove a provision in Article 121(1) that vested judicial power in the courts, while also
introducing Article 121(1A) which demarcated the jurisdiction of the civil and religious courts.
The Federal Court in Indira Gandhi directly addressed Article 121(1A) and the 1988
constitutional amendment, making clear that Article 121(1A) “does not oust the jurisdiction of
the civil courts nor does it confer judicial power on the Syariah Courts” (Indira Gandhi (FC), at
[92]). In effect, the Court nullified the 1988 constitutional amendment by declaring that Article
121(1A) “does not oust the jurisdiction of the civil courts nor does it confer judicial power on the
Sharia courts” and “Parliament does not have the power to make any constitutional amendment
to give such an effect.” Such an amendment “would be invalid, if not downright repugnant to the
notion of judicial power inherent in the basic structure of the constitution” (Indira Gandhi (FC),
at [92]).

The Indira Gandhi decision solidified the principle that judicial power lies solely with the courts
and expressly entrenched the courts’ power as part of the basic structure of the Malaysian
Constitution. That the Malaysian Federal Court was willing to assert its power in the fraught area
of religion and law makes it all the more remarkable. The Federal Court’s opinion reveals an
account of the basic structure that is intrinsically connected to the civil courts’ powers of judicial
review and constitutional interpretation (Indira Gandhi (FC), at [104]). Indira Gandhi (FC)
exhibits the Malaysian apex court powerfully recommitting to upholding constitutionalism and
the rule of law “in accordance with the judiciary’s proper constitutional role” (Indira Gandhi
(FC), at [37]-[38]).

- 3 kids, youngest child has been abducted by father

- Until now, the girl is still missing, police have yet to find her

Question 1

Critically explain Article 12 of the Federal Constitution. Support your answer with relevant
authorities.

- Explain clauses under art

- If clause is lenghty, do not copy word for word
- Explain restrictions and exceptions
- Clauses 2, 3, 4 -

In respect of Article 12, it concerns rights to education.

Essay – Article 12

Under Art 12(1) of the Federal Constitution, notwithstanding to the general protection of
equality under Art 8 of the Federal Constitution, all citizens shall entitle the equal treatment and
shall not be discriminated solely on grounds of religion, race, decent, or birth location, when it
comes to the admission of students in government owned educational institutions or the payment
of tuition fees. Under the same clause, the maintenance or education of pupils in all educational
institutions, regardless of whether it was a government owned institution or otherwise and
whether it was established within the federation or not, shall also entitle the equal treatment
without discrimination on the above-mentioned grounds in terms of the allocation of funds by the
public authority financial aid.

The rights enshrined in the Federal Constitution are often not absolute. Under Art 153(1), (2),
and (3) and (8A) of the Federal Constitution, the YDPA is obliged to, inter alia, reserve a
proportion of scholarship and other educational privileges by performing his function as YDPA,
to the Malay ethnics and the indigenous community in Sabah and Sarawak in order to protect the
special position of them. The clause has merely provided with the proportion of reservation that
the YDPA deems reasonable, but the exact proportion was not expressly stipulated. With this
being said, despite the right to have an equal opportunity to receive education has been protected
under Art12(1) of the Federal Constitution, such right can still be deprived or restricted in
pursuant to Art 153 of the Federal Constitution by the YDPA in the exercise of his power.

The right of religious group to establish and maintain educational institution to provide religious
education to children of its own religion is another constitutional protection that is enshrined
under Art 12(2) of the Federal Constitution. Under such clause, religious educational
institution shall not be governed by any law that is biased solely by reason of such religion.
However, due to fact that Islam was the official religion of our federation in pursuant to Art 3(1)
of the Federal Constitution, Islamic educational institution was deemed to be processing an edge.
The federal or state government may provide assistance or instruction, and allocate reasonable
expenditure in the establishment or maintenance of Islamic educational institution under such
clause.

Under Art 12(3) of the Federal Constitution, it provides that a person is able to refuse to
participate or adhere to instruction in any religious ceremony or act of worship that is not of his
own religion. In the case of Teoh Eng Huat v. The Kadhi Of Pasir Mas, Kelantan & Anor,
the High Court held that the word ‘required’ in Art 12(3) shall be construed as compulsion that is
against the will of the said person. A person is able to follow the instruction or act of worship of
a religion other than his own if he is doing it voluntarily. In the case of Dominic Lau Hoe Chai
v. Maszlee Malik & Ors, the respondent was the then Minister of Education and had
implemented the policy of teaching Jawi writing in all national schools. An application of
judicial review on the policy was applied to the court as the policy was alleged to have violated
Art 12(3) of the Federal Constitution. The court held that Jawi was merely a language that has
incidentally used by religious holy text, but was not an instruction of religion. Therefore, such
policy has never contravened to Art 12(3) of the Federal Constitution that is only protecting a
person from receiving religious instruction other than his own.

Under Art 12(4) of the Federal Constitution, for the sake of Art 12(3), the parent or guardian
of a minor shall be able to decide the faith of the minor. Such provision was well illustrated in
the case of Teoh Eng Huat v. The Kadhi Of Pasir Mas, Kelantan & Anor, where the court
held that the conversion to Islam by a minor without the consent of her parents was invalid and
such right of religious practice was to be exercised by her guardian until she has attained the age
of majority. However, since the clause did not mention the particular parent that will be deemed
to have a preferred right to make decision on the faith of the child, controversies will often be
raised on the matter. In the recent case of Indira Gandhi Mutho v. Pengarah Jabatan Agama
Islam Perak & Ors And Other Appeals, the federal court stated that Art 12(4) of the Federal
Constitution shall be read together with 11th schedule of the Federal Constitution which states
that word in singular tense equals to plural as well, while the singular tense used in Art 12(4) was
just indicating the situation of single parented. Therefore, the court has departed from the
decision in Subashini Rajasingam v. Saravanan Thangathoray & Other Appeals, and held
that the consent of both parents is required to convert the religion of their child. Hence, based on
the recent evolvement of law, under Art 12(4) of the Federal Constitution, it is likely that the
consensus of parents is a prior requirement to determine the religion of their child. – relate to Art
11, cite case of Indira Gandhi and Subashini

To conclude, Article 12 of the FC is an essential provision in establishing ones’ rights to

education.

Question 2

Critically explain Article 13 of the Federal Constitution. Support your answer with relevant
authorities.

Essay – Article 13

(shortened) Under Art 13(1) of the FC, it states that no one will be deprived with the right to be
in possession of property, but such right must not violate any law. The term ‘person’
incorporated in such article is also applying to legal personality that has only artificial entity.

While under Art 13(2) of the Federal Constitution, it states that if compulsory acquisition has
taken place, the owner of the property shall be given adequate compensation.

Article 13 of the FC, which applies to rights to property. To better grasp the provision of this
fundamental liberty, it is best to replicate it for easy reference. Article 13 (1) stated that no
individual shall be deprived of property save in compliance with the law and article 13(2) stated
that no law shall provides for the compulsory acquisition of the use of property without sufficient
compensation. So, what is the property? Many objects and things fall under the definition of
'property' whichincluding landed property, movable items, money and intellectual property can
all be said to cover the subject of property.

It is essential to know that this is the only provision pertaining to fundamental liberty under the
FC which has never been revised since it was first formulated. Article 13 of the FC contains two
parts, namely the Article 13(1) and Article 13. In common, Article 13 of the FC provides that the
person who owns property in the country shall enjoy immunity. Although protection is conferred
and stated in the Constitution, it is not absolute. This is explicitly stated in Article 13(1) of the
FC. This is because a person can be deprived of his or her property if it is provided for and
permitted under the law. The following is a clear illustration or explanation of how a person may
be deprived of his land. If an individual owes money to someone and is either unwilling to pay or
unable to pay, the other party can, through the legal process, obtain a judgment against that
person. If this happens and the judgment or order cannot be fulfilled, the creditor will take
possession of the property belonging to the creditor. In this case, his dispossession of the
property shall be "in accordance with the law"

Anyhow, the phrases ‘save in accordance with law’ in Art 13(1) of the Federal Constitution and
the ‘adequate compensation’ in Art 13(2) of the Federal Constitution are not well explained. The
extent of adequate compensation was not provided by the law. The term ‘property’ was also not
provided with its interpretation.

Some other circumstance where the property can be taken away from you is where the property
is subject to criminal investigation or prosecution. Another clear example of this will be The
Dangerous Drugs (Forfeiture of Property) Act 1988, a Malaysian law enacted to make provision
for property related offenses, and for the seizure and forfeiture of property related to activities
relevant to offenses under this Act, the Dangerous Drugs Act 1952, or any foreign law
corresponding to those Acts or to the provisions of that Act.

Whereas Article 13(1) of the FC refers to the right to property in general, Article 13(2) of the FC
refers to a particular circumstance of acquisition. Acquisition of land typically entails the
acquisition of land by the State Authority. Land is typically used for development of land for the
public purpose of benefiting a wider community. In Peninsular Malaysia, there is a law known as
the Land Acquisition Act 1960 which allows and specifies the way in which land can be
acquired. Article 13(2) of the FC guarantees that, where such legislation provides and allows for
the compulsory acquisition or use of property, the owner of the property must give adequate
compensation.

In the case of Selangor Pilot Association, the court held that property in art 13 of the Federal
Constitution is not including goodwill. However, even goodwill was considered as property,
there will be no acquisition.

Controversial cases of land acquisition include the case of Aboriginal people (orang asli). In the
case of Adong bin Kuwau v. Kerajaan Negeri Johor & Anor, the construction of dam had
denied the resources of livelihood of a group of aborigines. The court held that property in Art 13
is incorporating both movable and immovable property and may signify either the subject matter
itself or the interest valuable rights that are attached to it. The word is also including rights such
as possession, enjoyment and so on. In regards tot the adequate compensation, RM26.5 million
was ordered by the court, having regards of the deprivation of heritage of land, freedom of
inhabitation or movement enshrined under Art 9(2), produce of the forest, future living for
themselves and their immediate family, and descendants of the aborigines. The court also noted
that the sum would enable the plaintiff to put into good use and regenerate it.

In the case of Batu Kawan, the court held that adequate compensation is a question as to the
fact. Locality, size, accessibility, use of land, and other awards given by the land in the locality
shall be taken into consideration in ordering such compensation. The court further noted that
such right is able to be deprived by any law passed by the competent legislature, regardless of
whether it is oppressive or not.

In Arumugam Pillai, the court held that the reasonableness of the law that is violating the rights
enshrined under Art 13 is not able to be questioned by the court as long as it was passed under a
competent legislature, unless it is an arbitrary law.

In the case of Bato Bagi & Others v Government of the State of Sarawak stated that while Article
13(2) states that no law provides for the compulsory acquisition or use of property without
sufficient compensation, the question of acquisition does not occur in the case of customary
native lands with no title in respect of which customary native rights exist. It's because the lands
never belonged to the natives. They are part of the state. High Court held that Sarawak Land
Code Section 5(3) and Section (4) can be saved from being declared unconstitutional for
violation of Article 13(2) by interpreting the term 'compensation' in that section to mean
'adequate compensation.'

It is therefore reasonable to say that, on the basis of the wording of Article 13 of the FC itself, it
is clear that the right to property is not absolute. "Compulsory acquisition" and "use of property"
shall qualify for an otherwise absolute right.

To conclude, Article 13 of the FC is an essential provision in establishing ones’ rights to

property.

IS: whether have discretion to sentence death after DDA amendment

The first issue is whether the court still have the discretion to sentence Aladdin to death or
imprisonment to life after the amendment of S39B(1) the Dangerous Drugs Act 1952.
The applicable authority in relation to the situation above is Article 5(1) of the Federal
Constitution (hereinafter referred as FC) which states that no person shall be deprived of his
personal liberty save in accordance with law. This provision is important to every individual.
Furthermore, Article 5(1) of the FC can be categorized into two limbs. First, “denial of personal
liberty of an individual”. This protects the individual’s liberty. Second, “save in accordance with
law”. This means that an individual’s liberty can be taken away by the lawful authorities if only
the law allows it to be deprived. There are two possible interpretations of the term “law”. First,
the term “law” is defined as any statute passed by the parliament. Second, the term “law” is
defined as any higher standard than mere statute law.

In the case of PP v Yee Kim Seng, Ajaib Singh J had mentioned that every legislation enacted by
the Parliament, regardless of whether those laws are morally correct or not, could mean the law
referred to. In Malaysia, the judges are not prepared to contest the morality of the legislation
enacted by Parliament because they claim that they are concerned with law’s administration as
found in the statute books. Besides, the case of Dato Seri Anwar Ibrahim v PP, the judges had
outline that the issue of harsh and unjust law should be addressed to the Legislature and not the
courts by the those who disagreed with such a provision and they have their remedy at the ballot
box. In the case of PP v Lau Kee Ho, the Federal Court held that the death sentence under the
Internal Security Act 1960 was not contrary to Article 5(1) of the FC. (add application)

In relation to our case, Aladdin regardless being a citizen or not shall be entitled to personal
liberty. However, he may not be entitled to personal liberty when the exception is applied. For
instances, if there is law which allows the deprivation of such occurrence. Applying the above
stated case laws, it is believed that Malaysian judges are more inclined towards the first
interpretation of the term “law”. Hence, Aladdin’s personal liberty could be taken away if and
only if it was authorized by any law passed by the Parliament. In this situation, is Section 39B
(1) of the Dangerous Drugs Act 1952 irrespective of how harsh and unjust it is.

(can exclude) The next applicable authority is Article 8 of the FC, which states that everyone
before and the law shall be entitled to receive equal protection of the law. The presence of
procedural fairness is a must in sentencing the accused.

Applying Article 8 of the FC into the situation above, it is important that Aladdin shall be
punished accordingly keeping the context of procedural fairness.

According to A.V Dicey’s postulate of rule of law, where it was stated that no one shall be
punished in goods or body except the distinctive breach of law which means that no one shall be
punished without context, unless the individual breached the existing law.

Applying this to the current situation, Aladdin had violated Section 39B (1) of the Dangerous
Drugs Act 1952. As stated in the facts of the case, Aladdin was charged for the offence of drug
trafficking. Therefore, the court has the discretion to sentence Aladdin to death or imprisonment
for life.

In conclusion, it is most likely that the court has the discretion to sentence Aladdin to death or
imprisonment for life.
IS: whether bound to sentence to death

The second issue is whether the court is bound to sentence Aladdin to death.

The applicable authority is Article 7(1) of the FC, which states that “no person shall be
punishment for an omission which was not punishable by law when it was done and no person
shall suffer greater punishment for an offence than was prescribed by law at the time it was
committed”. It means that no individual shall be prosecuted, punished or be held liable except for
a distinct breach of a known, pre- existing law. Furthermore, this article contains two limbs
which acts as a safeguard against backdated criminal legislation. First, the law which creates a
new penal offence that cannot have effect back in time. Second, if the penalty for a criminal
offence is enhanced, the law increasing the penalty cannot be applied retrospectively.

Based on our case, the most applicable part is the second limb as it deals with the enhancement
of penalty. It is said that, if the penalty for a criminal offence is enhanced, the amended law
imposing greater penalty cannot be applied retrospectively. This can be seen in the case of PP v
Mohamed Ismail, the defendant was charged with drug trafficking offence which was punishable
with life imprisonment as well as death penalty under Section 39B (1) of the Dangerous Drugs
Act 1983. While the trial was on pending, the law was later amended to provide a mandatory
death penalty. It was held that amendment could not apply to defendant’s case as it was enacted
after the offence had been committed, or else, it is a violation to Article 7(1) of FC.

Thus, applying to our current case, Aladdin shall be punished with the punishment for an offence
that was prescribed by law at the time it was committed. During the time when Aladdin
committed the said offence, the punishment stated by Section 39B (1) of the Dangerous Drugs
Act 1952 is death sentence or imprisonment for life. However, it was later amended to allow the
court to impose a mandatory death sentence, which was obvious that the previous punishment
was enhanced. Applying the case of PP v Mohamed Ismail which shared the similar facts as the
current case in the question, as the amendment of the Dangerous Drugs Act 1952 was done only
after the drug trafficking crime committed by Aladdin, therefore it shall not apply to Aladdin as
it contravenes Article 7(1) of the FC.

In conclusion, it is highly possible that the court is not bound to sentence Aladdin to death.

MDM SUGGESTED ANS

Can use either ilac or essay
Art 5(1) of FC – two limbs – discuss briefly – interpretation of law
Cite 2 cases – Andrew, ong ah chuan, law kee hong
Explain save in accordance of law
AP: aladdin has commited offence of drug trafficking under s39b(1) of dda. Since he has
committed such offence shall be deprived in accordance of law, which is dda (is the law here
which allows Aladdin personal liberty to be deprived of based off art 5(1) of the FC)
Art 7(1) of FC – expos facto law – briefly explain 2 limbs – law creating new penal offence
cannot have retrospective effect, law enhancing cannot have effect retrospectively
Art 7(1) no one shall suffer greater punishment than what was prescribed at commisision of
offence
PP v Mohamed ismail – shares similar facts to ques – in this case, the ct held that the amendment
does not apply to accused case as it was enacted after the commission, or else contravene art 7(1)
of FC
Principle derived is imp
AP: 2nd limb of art 7 is applicable – penalty for commission of offence was enhanced cannot be
applied retrospectively, according to 7 1 aladdin shall not suffer greater punishment than what
was prescribed by law that was amended at the time of the commission of offence. Such as
amendment to s39b1 does not apply to aladdins case as it was enacted after crime was
committed, otherwise it wld be a violation to art 71 of the fc
Conclu: ct is bound to preamended law to punish Aladdin according to pre-amended law

CHAP 6-9 ART 149

1. Critically explain Article 149 of the Federal Constitution. Support your answer with relevant
case law.
Article 149 – Essay

Art149(1) & (2) – empowers parm to enact legislation against subversion

6 paras, 6 grounds
1st ground – substantial number of citizens to fear – eg terrorism – organized system to plan and
execute plans that cause fear within citizens
Secret society, gangsterism – DDA – syndicates involved in illegal drug dealings, money
lending, etc
Clause 1 of Art 149 of FC, allows the Parliament to pass special laws to prevent any substantial
body of persons from taking or threatening the commission of six categories of acts mentioned in
the article such as organised crime, excitement of disaffection against YDPA and any
government in the federation, the promotion of ill-will and hostility between races, alteration of
anything legal through unlawful means, prejudicing the maintenance or functioning of supply or
services and public order and security.

Under Cambridge Dictionary, subversion is deemed to be the act that is conducted with attempt
to destroy or damage the system or government that had been established. Whereas under
Oxford Dictionary, subversion is deemed to be the act that is undermining the power and
authority of a system or institution that had been established. To be taken as a whole, subversion
simply means the act done that could possibly treat the government that has been established.

Under Art 149 of the FC, it states that all Act of Parliament that is made to stop or prevent the
threat by any substantial body of persons, regardless of whether it is inside or outside the
federation shall be valid despite being inconsistent with Article 5, 9, 10 or 13. Acts that would be
considered as treat under the article include the act that will cause a substantial number of
citizens to fear, organized violence against persons or property; or act of exciting disaffection
against the YDPA or any Government in the Federation; or act of promoting feelings of ill-will
and hostility between different races; or act to procure an unlawful alteration; or act which is
prejudicial to the maintenance or functioning of any supply or service to the public in the
Federation or any part thereof; or act which is prejudicial to public order or security of the
Federation or any part thereof.

Under Art 149 of the FC, it appears that the definition of subversion is broad and catch-all in its
nature. In its ordinary sense, the act of subversion also includes the act of drug trafficking, secret
society activities, local hooliganism, vigorous criticism of official policies and so on. In pursuant
of the permission of Art 149, there are several controversial acts being made by the parliament
with a view of curbing subversion acts. These include the Internal Security Act 1960 and the
Dangerous Drugs (Special Preventive Measures) Act 1985. These laws, despite being contravene
with Art 5, 9, 10, and 13 of the FC that is protecting the basic human rights, is valid. Regardless
of whether such laws would be harsh, it is constitutional under Art 149. Hence, the laws passed
under Art 149 of the FC would often depart from the norms of separation of powers and limited
government. The Reid Commission seemed to suggest that the law that is dealing with
subversion activity shall be subjected to some measures. The provision of Art 149 is
distinguished from Art 150 as Art 150 is mainly dealing with emergency matters where the
power is solely owned by the executive, regardless of whether Parliament is sat, while Art 149 is
would only exercise after the proposed law has been through the debate in Parliament.

It is understood that the Reid Commission report had taken the emergency at that time, namely
the threat by the Communist into account in drawing such provision. There are argument stating
that Art 149 should indeed by limited to communist insurgencies only, but not other subversion
event. Such contention was also support by the implied intention by Tun Abdul Razak at the time
where the Internal Security Bill was proposed.

In the case of THERESA LIM CHIN CHIN & ORS V INSPECTOR GENERAL OF POLICE
(1988), the appellant challenged the validity of ISA on the ground that it was passed to deal with
communist insurgency and therefore not meant for arrest not related to such insurgency. Reid
Commission Report and PM's speech in Parliament were referred to as evidence. The court held
that those evidences were only relevant for the purpose of showing its legislative history and not
the purpose of interpreting the Act the words of the Act as a whole does not show that it was
meant to combat communist insurgency only.

Any clause of that law intended to stop or discourage that action is constitutional, even if it
conflicts with one or more of the Federal Constitution's Articles 5, 9, 10, or 13. This art also
paves way to the introduction of Internal Security Act 1960, Dangerous Drugs (Special
Preventive Measures) Act 1985, Prevention of Crimes Act 1959, Prevention of Terrorism Act
2015, and Security Offences (Special Measures) Act 2012. Human Rights Watch Deputy Asia
Director Phil Robertson censured the effects of Art 149 which creates the space for the draconian
provisions where it empowers the police in arresting people under deeply flawed laws. Many of
these provisions in the laws violate international human rights standards on the right to a fair trial
according to Human Rights Watch Report.
A person detained unlawfully or without legal justification is free to apply for writ of habeas
corpus which is used to primarily secure his release. Act made under this Article is independent
of any emergency declaration in Art 150. In the case of Tan Cheng Poh v PP (1979), The Privy
Council held that law under Art 149 is independent of Art 150. These laws would continue in
force until annulled by both Houses of Parliament. The purpose of law under this Article is to
suppress and prevent subversive action it must be taken that the executive action to make law
under this Article is bona fide to combat subversion. In addition to raising the probability of
violations of human rights, procedural laws in the legislation jeopardise fundamental human
rights and fair trial protections minimise the likelihood that those responsible will be identified
and punished. The present position is that there is no time limit and do not ceased to operate even
if the threat that provided the moved for the law has ceased, the application of the Act continues.
However, there are 4 ways how the legislation can be ceased to exist or to be controlled which is
by the act repealed by the Parliament, annulled by the resolution of both House of Parliament,
the enacting measures of the act may contain in a timeframe at the end of which the law will
automatically lapse or also the enactment of the act may require periodic parliamentary review.
This method may reduce or wards the effects of misuse of the law on the innocents and test the
relevance of legislation in protect the society which was the excuse given as the reason for its
introduction.

The Court has the jurisdiction to review Art 149 of Federal Constitution as the court will apply
subjective test and procedural review approach. The subjective standard requires the prosecutor
to show that the accused meant his or her conduct beyond a reasonable doubt, while the
empirical standard requires the prosecutor to show that a reasonable person would not have
behaved as the accused did under the facts and circumstances of each case. Procedural review.
The Procedural review allows for unsuccessful applicants to appeal against the recruitment and
selection processes only who charged under the laws introduced by Art 149.

This can be showed on the case of Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia
(1969), the burden of proof is on the detainee to show that the detention is illegal. The detention
is not illegal just because the allegation of fact is insufficient. In fact, although the detainers must
prove the legality of the detention, but they simply would be able to discharge that by simply
producing the order of the detention with good faith and it is sufficient. The reality of the
situation is, it is hard to prove the bad faith or mala fide on the part of the government when they
detained someone even its evident that the motive of the detention was politically motivated.

The pre- conditions for making Law under Art 149 of Federal Constitution, where the recital
under 149(1) is needed with conditions under 149(a)-(f) must be met for the legislations. Act
passed under Art 149 must contain a recital which means the readout next that sets out reasons
for the provisions of an act, while avoiding normative language and political argumentation. The
recital can and should and must be taken into the account when interpreting the means of the Act.

In the case of DATUK SERI ANWAR IBRAHIM v GOVERNMENT OF MALAYSIA &

ANOR (2020), Pursuant to Section 84 of the Courts of Judicature Act (JCA) 1964, which
answered the High Court's reference to the constitutional issue, this case was referred to the
Federal Court by the High Court. The Federal Court refused to address constitutional questions
on the constitutionality of the National Security Council Act 2016, submitted by Port Dickson
MP Datuk Seri Anwar Ibrahim (NSCA). In a 5-2 majority opinion, the seven- member bench
held that it was not a suitable case for the Federal Court to respond, because the questions
referred were abstract and solely academic.

This Act was not enacted in accordance with Article 149 of FC, but it violates freedom of
movement guaranteed by Article 9(2) of the FC. The majority decided that the plaintiff does not
assert that the NSCA has been invoked so as to violate his rights or interest, or that of anyone
else. The Court explained that his grievance is purely legal, directed against the alleged inherent
unconstitutionality of the Act. Dissenting opinion judgements, sided him with affirm that the
NSCA ought to have been passed under Article 149 because it is, in pith and substance, a
national security and anti-subversion law. The entire NSCA is full of references to national
security and with measures addressed to curb any incursions into or threats to it. There should
have been a recital which must indicate it was enacted pursuant to Article 149 and since there is
an omission, the NSCA is unconstitutional.

Most recitals listed under Art 149 starts with the term whereas which is generally used in a
comparison of a fact. The purposes of the act, Dangerous Drugs (Forfeiture of Property) Act
1988 are set out in the preamble of the Act, while action has been taken and more similar action
is being threatened by a large number of individuals both within and outside Malaysia. This act
is intended to prohibit the organisation and execution of the trafficking of hazardous drugs,
including their importation and exportation from Malaysia. This Act is intended to prevent the
spread of dependency on dangerous drugs among different groups of people in Malaysia, causing
widespread harm to public health, protection, security and morality. In Malaysia, the acquisition
of property through the trafficking of dangerous drugs and the use of property for such
trafficking and the acts taken and threatened are prejudicial to public order, though Parliament
considers it appropriate to stop such action.

The Court held that provisions of the Dangerous Drugs (Forfeiture of Property) Act 1988
authorizing seizure of property without reimbursement were a breach of Art 13 but were saved
by Art 149 in the case of Ketua Polis v Gan Bee Huat.

There are laws which were introduced into Malaysia which was inspired by Art 149 of FC.

An example of legislation passed under Article 149 of the FC is the Internal Security Act of 1960
(ISA). A police officer may arrest someone without a warrant if he has "reason to believe" that
there are grounds for his detention under Section 8 of the ISA and that person has acted, is about
to act, or is likely to act in a way that jeopardizes the country's security. The person may be held
for up to 60 days. Furthermore, the minister's order can be renewed from time to time under S
9(7) of the ISA, allowing an individual to be detained indefinitely. There was sufficient amount
of abuse of power by the sitting government where oppositions were imprisoned until 24 months
which was used as a political tool by the authorities. Notably, Karpal Singh was imprisoned for
15 months where he had undergone physical pain when Ipoh High Court released him for the
charge.
The Prevention of Crimes Act 1959 (POCA), the Prevention of Terrorism Act 2015 (POTA) and
the Special Preventive Measures (Dangerous Drugs) Act 1985 allow people to be imprisoned,
detained and/or restricted without the right to question the reasons for their detention and/or
restriction in court. The basic right to a fair trial is refused to the accused which is breach of
human rights violations. Section 4(2A) was amendment to POCA that came into effect on
1/9/2015, specifying that "No person shall be arrested and detained pursuant to this section solely
for his or her political beliefs or activities." Political belief or political activity "political belief or
political activity" engaging in a lawful activity.

This could offer the impression that POCA for acts directed against the government would not be
used against politicians (and probably civil society personalities). However, whether their acts
and/or expression of opinion are directed towards any of our perpetrators of injustice, and not
being 'any government' or if they are claimed to be committing any other crime, it does not
shield civil society or human rights defenders. It must be noted that, in the case of R, POCA was
used in July 2016 on Malaysian Crime Watch Task Force (MyWatch) chairman, Sri Sanjeevan,
is a civil society group which is to protect the people and creating awareness of the crimes
committed in their community.

In Prevention of Crime (Amendment and Extension) Act POCA, 19A(1) of Act, the Board may,
after considering the report of the Inquiry Officer submitted under section 10 and the outcome of
any review under section 11, direct that any registered person be detained under a detention order
for a period not exceeding two years, and may renew any such detention order for a further
period not exceeding two years at a time, if it is satisfied that such detention is necessary in the
interest of public order, public security or prevention of crime. The power to detain the accused
for lengthy period of time without a fair trial to prove their innocence. The individual's guilt or
innocence must be decided in court by an impartial judge, and the police, prosecutor or
government's conviction that a person is guilty is insufficient. A trial also provides the accused
parties the right to defend themselves, and the courts will determine until all the evidence and
facts of the case have been weighed. We do not need to repeat history through another Karpal
Singh, Lim Kit Siang or Maria Chin Abdullah incident to remind us the severity of the laws
introduced under Art 149 which breaches and violates the fundamentals liberties and human
rights granted by the Federal Constitution.

So, as a conclusion, the only protection detainees have for laws passed under Article 149 and 150
is under Art 151.Under Art 151, the detaining authority must inform the detainee grounds of his
detention, allegations of fact on which the detention order is based, and an opportunity of making
representations against the order as soon as may be. The courts have been willing to interfere
with detention orders on procedural grounds.

SOSMA Application - Essay

2. Critically explain the application of Security Offences (Special Measures) Act 2012
(SOSMA). Support your answer with relevant authorities.

SOSMA repealed ISA

The Security Offenses (Special Measures) Act of 2012 (SOSMA) is a contentious statute that
purports to "provide for special measures relating to security offences for the purpose of
maintaining public order and security and for related matters." The National Security Act of
1960 will be repealed by this Act .The Act was introduced by Prime Minister Najib Razak of
Malaysia, authorised by Parliament on 17 April 2012, by Royal Assent on 18 June 2012 and
Gazetted on 22 June 2012. The death penalty may be levied on the perpetrators of this act.

Violation of Articles 5, 9, 10 and 13 of the Federal Constitution is allowed by the legislation

referred to in Article 149. There is, however, no authority conflicting with other articles of the
Supreme Constitution to legislate. As SOSMA declares itself to be a law pursuant to Article 149
of the Federal Constitution, no provisions of the Constitution other than Articles 5(Right to
Liberty and Security), 9( Freedom of Thought, Belief and Religion) , 10(Freedom of Speech &
Expression) and 13(Right to Property) can be violated by any provisions from SOSMA.
However, the Act is incapable in breaching Article 8(Right to Equality), 121(Independence and
integrity of the Judiciary and 151(Restrictions on preventive detention).

SOSMA complies with this requirement of indicating expressly which is applied in the case of
Abdul Ghani Haroon and Teo Soh Lung. Parliament’s intention to legislate inconsistently with
the Constitution in several sections of SOSMA like Sec 5(3) This section shall have effect
irrespective of anything in the Federal Constitution, conflicting with Article 5 and Sec 7(9)
Except as conflicting with Article 9 of the Federal Constitution, that section shall apply. In Ketua
Polis Negara v Abdul Ghani Haroon (2001), the Federal Court interpreted Article 5(2) in a
literal, pedantic manner to hold that the detaining authority is under no obligation to carry the
prisoner to court unless the court is satisfied that the detention is unlawful. In the case of Teo
Soh Lung v. Minister for Home Affairs (1990), that these amendments restored the legal status
set out in Lee Mau Seng as the applicable law regulating judicial review in Singapore at the
Constitution , thus triggering a return to the subjective test in the analysis of the ISA's exercise of
executive discretion.

The provisions of Articles 149 and 150 are subject to the provisions of this Regulations of
Article 151, which also forms part of Part XI and is explicitly referred to as 'Preventive
Detention Limitations.' It is stated that the constraints laid down in Article 151 were not
respected by SOSMA. Subsection 4(2), requires that a person arrested pursuant to subsection (1)
be informed as soon as possible of the reason for his arrest. The subsection severely falls short of
Article 151(1)(a), which lays down two procedural rights: (i) the detaining authority shall notify
the detained person as soon as practicable of the reasons for his detention and (ii) make the
allegations of fact on which the order is centred. SOSMA's subparagraph 4(2) does not provide
for the second right encapsulated in Article 151(1)(a)-i.e. the right to statements of truth on
which the order is centred. Therefore, Subsection 4(2) of SOSMA must be declared
unconstitutional.

Article 151(1)(a) and (b) of the Federal Constitution allows any legislation providing for
preventive detention to allow the detained person the opportunity to make representations to the
Advisory Board against the preventive detention order. For such an Advisory Board and
representation to the Board, SOSMA has no provision. This is a fatal infringement of Article
151(1) on the ground that every rule referred to in Article 149 is subject to comply with Article
151. Article 151(2) provides for the appointment, qualification, and composition of the three-
member Advisory Board in all preventive detention situations. Members of the Board will be
named by the Yang di-Pertuan Agong.. SOSMA does not allow for such a board and deprives
Yang di-Pertuan Agong of the authority to name such a board. Accordingly, SOSMA is a
violation of Article 151(1) and Article 151(1) respectively (2).

SOSMA, pursuant to subsection 4(11), provides that a sunset provision exists for subsection 4.
(5). It is mandated that Paragraph 4(5) authorising the extension of detention beyond 24 hours to
an extended period of 28 days shall be reviewed by Parliament every five years and shall cease
to have effect unless a resolution is passed by both Houses of Parliament upon review to extend
the period of service of the period of detention. The five-year term expired on 21 June 2017, as
SOSMA was gazetted on 22 June 2012, and the sunset clause went into effect. The government
must show that the required resolutions were passed before the deadline of June 21, 2017. If such
proof is not given, subsection 4(5) will be nullified, and the extension of the detention beyond 24
hours will be illegal, without jurisdiction, and ultra vires.

In the case of Semenyih Jaya v Pentadbir Tanah [2017], The Federal Court held that,
notwithstanding the amendment to Article 121(1) in 1988, the judicial control of the federation
was still vested in the judiciary. In the Federal Court case of Sivarasa Rasiah v Badan Peguam
Malaysia & Anor, the Federal Court has upheld the "basic structure doctrine" that was first
brought to Malaysia. The basic structure doctrine originates from India and notes that
constitutional amendments that disturb the basic structure of the Federal Constitution will
themselves be unconstitutional.

Firstly, it is now possible to challenge "ouster clauses" in laws that remove the authority of the
courts to investigate such matters within the statute. Secondly, it is now possible to challenge
clauses in the law that bind judges to the judgments, rulings or directives of non-judicial bodies.
The clause that bound the judge to the determination of compensation by the assessors was found
to be unconstitutional. In other bodies, judicial authority cannot exist.

In the case of Indira Gandhi Mutho V. Pengarah Jabatan Agama Islam Perak & Ors And Other
Appeals [2018] 3 CLJ 145, was hailed as one of the most important court decisions in the
constitutional history of the nation. Firstly, the decision most importantly reaffirmed the civil
courts' constitutional role and powers. The decision eliminates the confusion arisen when it
comes to the jurisdiction of the civil court jurisdiction of the Syariah court. Because of Article
121(1A) of the Federal Constitution, the Federal Court reversed its long-held view that
conversion cases are solely under the jurisdiction of the Syariah Court. Instead, the Court stated
unequivocally that judges could not dismiss the civil courts' authority when the subject matter
involves the Islamic faith. Second, the Apex Court acknowledged the presence of the basic
structure doctrine in Malaysian law for the first time.

The doctrine of the basic structure suggests that there are elements in the constitution that form
its fundamental structure and that cannot be excluded from legislation. In this case, for example,
the powers of judicial review and of constitutional interpretation are such essential constituents
within the jurisdiction of the civil courts that they cannot be excluded from the civil courts,
whether by amendment to the Constitution, the Act of Parliament or otherwise. This is a
reaffirmation of the inherent judicial power articulated in Semenyih Jaya Sdn Bhd v. Pentadbir
Tanah Daerah Hulu Langat & Another Case [2017], another recent and hopeful landmark
decision.

After the Federal Court's decisions in Semenyih Jaya v Pentadbir Tanah [2017] and Indira
Gandhi Mutho v Pengarah JAIP [2018], it is now established authority that the Federation's
judicial authority is vested in the superior courts and cannot be revoked by law or constitutional
amendment. Despite the later decision in JRI Resources v Kuwait Finance [2019], Semenyih
(2017) and Indira Gandhi (2018) stand as authority for the proposition that superior courts have
inherent jurisdiction to check all authorities' exercise of power. The majority of SOSMA's
provisions, it's clear, require the judiciary to act on the executive's orders.

Section 8(2) of the SOSMA, The Public Prosecutor may notify the court of his or her plan to use
sensitive information against the accused as evidence during the trial, and the court must grant
the request. The court is not allowed to question the intent of the executive to desperate to
prosecute a person to the extent of sharing sensitive information to convince the judiciary to
convict the person. Mala fide from the government will not considered or punished by the
Judiciary where they may convicts may well be politically motivated which happened to
Muhammad Sabu, Karpal Singh, Lim Kit Siang in Ops Lalang where NGO activists, opposition
politicians, intellectuals, students, artists and scientists were arrested under the operation of
executive strong arming the Malaysian Royal Police.

A court judgement to acquit an accused can be rejected and made null in section 30, subsections
(1) to (7), by the simple act of the public prosecutor filing a notice of appeal. Pending the filing
of the notice of appeal, the court SHALL then remand the accused (s. 30(3)). What is remarkable
is that the PP will file another notice of appeal and the PP can file another notice of appeal if the
PP loses the appeal and the order of acquittal is affirmed. Once again, the court will remand the
acquitted person until the final disposition of the appeal.

There are no time limits given within which such appeals should be heard and disposed of. The
implication is that an acquitted individual will spend years in remand awaiting the final disposal
of the appeals of the PP. Section 30 is a significant breach of the powers of the courts following a
fair trial to acquit an accused. A hideous show of executive omnipotence is rendered to look like
the court process. Judges will have their say, but the PP will have its way, no matter what the
judicial decision is. Section 30 is a severe infringement of the judicial right to acquit a defendant
after a fair trial. This offends against the principle Semenyih (2017).

Sec 18 A of SOSMA reveals that A statement made, either orally or in writing, in the course of
an investigation or investigation into a security offence, or for the purposes of an investigation or
investigation, by any person who is dead or who cannot be identified or who has become unable
to provide proof shall be admissible as evidence. The notion of a fair trial is strongly prejudicial
to section 18 on the admissibility of claims made by people 'who cannot be found'. A witness can
be made to vanish for the defence and then his/her proof can be admitted without any possibility
of cross-examination. The trial could be a hoax in such circumstances and doctored and
unchallengeable evidence may be used to prosecute a detained person. The Act is considered as a
flawed legislation which is prone to be misused by the executive.
Sec 18B(1) of SOSMA , A person who is or has been married shall be obliged to disclose any
contact made to him by any person to whom he is or has been married during the course of his
marriage (2) and shall be entitled to disclose any such communication, irrespective of the fact
that the person who made the disclosure does not agree to it. A spouse can be compelled to give
evidence against his/her partner even without her consent which is a gross violation of privacy
and the interest in preserving the institution of marriage which may paves a way towards torture
to extract information by the police.

Uncorroborated Testimony destroys the believability of a fact or assertion by the presentation of

additional information that confirms the truthfulness of the item. Sec 19 of SOSMA, If the court
is of the opinion that the child has ample intellect and knows the obligation to say the facts, a
conviction gained on the basis of the uncorroborated evidence of a child of tender years is not
unconstitutional, although not given under oath. A conviction can be based on the
“uncorroborated testimony of a child of tender years which may be from 4-13 years olds
although the testimony was not given under oath will be declared constitutional in accordance to
this section may be against the natural justice.

In conclusion, SOSMA is a flawed legislation which needs to be repealed to the advice of

Malaysian Bar Council not amendments as was recommended by our Ex-Home Minister, Tan Sri
Muhyiddin Bin Yassin.

CHAP 6-9 ART 150

Read the Article below:

EMERGENCY POWERS OF THE MONARCH

Thursday, 07 Feb 2013

12:00 AM MYT
By Reflecting On The Law - SHAD SALEEM FARUQI

A caretaker government’s advice on emergency proclamation is not binding on the Yang di-Pertuan Agong.
THIS column had on Jan 10 noted that the last date for the Dewan Rakyat’s dissolution is April 27; a
general election must be held on or before June 26; and the next Parliament must be summoned on or
before Aug 25.
This is presuming and praying that no emergency under Article 150 intervenes to suspend the general
election or postpone the summoning of Parliament.
In response to the Jan 10 article, some readers have raised enthralling questions of constitutional politics.
First, can the Yang di-Pertuan Agong act on his own initiative to proclaim an emergency even if the Prime
Minister does not so advise?
Second, if a PM, who fears defeat at the general election, improperly advises the King to declare an
emergency and to postpone the elections, is the monarch bound by this advice or is it constitutionally
permissible for him to refuse his premier’s counsel?
Third, is the King’s exercise or non-exercise of emergency power subject to challenge in the courts?
Subjective language: Article 150 states that “If the Yang di-Pertuan Agong is satisfied that a grave
emergency exists whereby the security, or the economic life, or public order in the Federation or any part
thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that
effect”.
A literal interpretation of Article 150(1) appears to indicate that the proclamation of an emergency is within
the sole discretion of the Yang di-Pertuan Agong and is within the subjective powers of the monarch under
Article 40(2).
Article 40(2) states that the Yang di-Pertuan Agong may act in his discretion in the performance of three
enumerated functions, namely appointment of the PM, dissolution of Parliament and convening of the
Conference of Rulers, plus “in any other case mentioned in this Constitution”.
The subjectively worded powers of His Majesty under Article 150(1) appear to fall nicely within the
category of “any other case mentioned in this Constitution”.
This interpretation is supported by some scholars like Hickling. It also gained credibility due to two
historical events.
In the case of Madhavan Nair, then Prime Minister Tunku Abdul Rahman submitted in court that “I
personally presented the said Ordinance to His Majesty… for his consideration and approval. Having
considered the said Ordinance and after being satisfied … His Majesty approved the promulgation of the
said Ordinance”.
In 1983, the then prime minister, Tun Dr Mahathir Mohamad, pushed through Parliament the Constitution
(Amendment) Act 1983 which amended Article 150(1) to read: “If the Prime Minister is satisfied that a
grave emergency exists … he shall advise the Yang di-Pertuan Agong accordingly and the Yang di-Pertuan
Agong shall then issue a Proclamation…”
The 1983 amendment elicited strong opposition from the Conference of Rulers and was consequently
repealed in 1984. But its story firmly planted the seeds of belief that in times of emergency, the Yang di-
Pertuan Agong may act on his own without reference to the Cabinet. Otherwise, why was this amendment
necessary?
The ground-breaking case of Public Prosecutor v Mohd Amin Mohd Razali (2000) lends partial credence to
this view.
According to the High Court, if during the dissolution of Parliament there is no Cabinet in existence to
advise the Monarch, then the King is empowered to issue a Proclamation of Emergency on his own.
Even if a caretaker government is in place, the caretaker government’s advice on national emergencies is
not binding on the Yang di-Pertuan Agong.
King acts on advice: However, there is a long line of academic and judicial opinion that despite the
subjective language of Article 150(1), the declaration of emergency by the monarch is a non-discretionary
power to be exercised on advice.
This was also the opinion of the Reid Commission.
In Madhavan Nair v Government (1975), Justice Chang Min Tat opined that emergency rule does not
displace the King’s position as the constitutional monarch, bound by the Constitution to act at all times on
the advice of the Cabinet.
Reference may also be made to similar opinions in Teh Cheng Poh (1979), Stephen Kalong Ningkan v Tun
Abang Haji Openg (No. 2) (1967); Balakrishnan v KP Perkhidmatan Awam (1981); Merdeka University
(1982); Stephen Kalong Ningkan v Government (1968); Abdul Ghani Ali @ Ahmad (2001); and Karam
Singh (1969).
In the light of the above cases, it is submitted that the proclamation of emergency by the King is not free of
the constitutional requirement to act in accordance with the advice of the Prime Minister.
Article 150(1) that bestows emergency power must be read along with Article 40(1) and 40(1A) that
impose a duty to act on advice.
Even under the Amin Razali ruling, if Parliament is sitting and the Cabinet is in existence, the Yang di-
Pertuan Agong exercises his emergency powers on advice.
Judicial review: But what if the ruling party abuses emergency powers to subvert the Constitution, to
overthrow unfriendly state governments and to postpone elections?
In India, the federal government has repeatedly abused emergency powers to remove elected state
governments and to impose federal rule. Statistics indicate that state governments, often controlled by
opposition coalitions, were federalised 103 times between 1950 and 1995!
The Supreme Court of India, therefore, intervened in S R Bommai’s case (1994) to hold that the validity of
a proclamation can be judicially reviewed to determine whether it was issued on relevant material and
whether it was in bad faith.
 Malaysian jurisprudence is, however, generally in favour of judicial non-intervention on the issue of
proclamation of an emergency: Stephen Kalong Ningkan (1968) and PP v Ooi Kee Saik (1970). A
constitutional amendment in 1981 barring all judicial review of emergency powers under a new clause
150(8) seems to put the issue beyond all doubt.
However, there remain seeds here and there in the Kalong Ningkan cases that mala fide (bad faith) may be
a ground for judicial scrutiny of emergency powers.
It remains to be seen whether these subdued voices will one day become mainstream.
Till then, it can be summed up that a government with a majority in parliament (but not a caretaker
government) has the right to give binding advice to the King relating to the exceptional powers under
Article 150.
However, if the government abuses its emergency powers for wrongful purposes, three possibilities come
to mind. First, a sagacious monarch may delay, caution and warn. Second, he may refuse to issue the
proclamation and his refusal cannot be reviewed by the courts because of Article 150(8) which cuts both
ways. Third, there is some possibility of scrutiny by the courts of issues of mala fide – remote though this
possibility is on existing jurisprudence.
Source: https://www.thestar.com.my/opinion/letters/2013/02/07/emergency-powers-of-the-monarch

Based on the article above, answer the following questions:

1. Identify the three questions raised in the article.
First, can the Yang di-Pertuan Agong act on his own initiative to proclaim an emergency even if the Prime
Minister does not so advise?
Second, if a PM, who fears defeat at the general election, improperly advises the King to declare an
emergency and to postpone the elections, is the monarch bound by this advice or is it constitutionally
permissible for him to refuse his premier’s counsel?
Third, is the King’s exercise or non-exercise of emergency power subject to challenge in the courts?

Explain Art 150(1) of the Federal Constitution.

Art 150(1) stated that YDPA have the power to declare an emergency if himself satisfied that a
grave emergency exists and threat the public order, security and the economic life of the
Federation.
A literal interpretation of Article 150(1) appears to indicate that the proclamation of an
emergency is within the sole discretion of the YDPA and is within the subjective powers of the
monarch under Article 40(2). As such, “satisfied” and “may” in Article 150(1) are
“suggestive of there being a discretion on the part of the YDPA when it comes to issuing a
Proclamation of Emergency”.
The subjectively worded powers of YDPA under Article 150(1) appear to fall nicely within the
category of “any other case mentioned in this Constitution”.
(additional cases) In the case of Abdul Ghani Bin Ali v PP [2001], the F.C opined YDPA has
no discretion in proclaiming an emergency because of a modern democratic system. YDPA
must act on the advice of the PM.
Similarly, in Teh Cheng Poh v PP, it was held that YDPA does not exercise his function on his
own initiative but is acting in accordance with the advice of the cabinet as required by Article
40(1).
However, in the case of PP v Mohd Amin [2001], it was held that the YDPA may act at his
discretion in issuing an emergency proclamation. There are three situations His Majesty may
act in his discretion which are when there is no government, where the government has lost the
confidence of the House but refuses to resign and instead asks the YDPA to declare an
emergency, and where the government is deliberately undermining the public order of its own
political gains. Therefore, the decision in Mohd Amin looks more realistic and sensible and is
closer to democracy as it disapproves of the permissibility of a caretaker government to declare
an emergency
Proclamation of emergency by the YDPA is not free of the constitutional requirement to act in
accordance with the advice of the Prime Minister. Art 150(1) of FC that bestows emergency
power must be read along with Art 40(1) and Art 40(1A) of FC that impose a duty to act on
advice.

2. Explain Art 40(1), (1A) & (2) of the Federal Constitution.

Article 40(1) & (1A) provides that the King is a constitutional monarch who is bound by the
advice of the Cabinet in the entire range of his functions except as to the few matters mentioned
in Article 40(2). Such limitation of powers is good in the sense that the YDPA wasn't elected by
the people, thus he does not represent them. There are occasions where the YDPA may assert
independence such as the appointment of government and the dissolution of the Parliament to
pave way for elections.

3. What was the decision of PP v Mohd Amin in relation to Art 150(1) of FC?

In the case of PP v Mohd Amin [2001], it was held that the YDPA may act at his discretion in
issuing an emergency proclamation. There are three situations His Majesty may act in his
discretion which are when there is no government, where the government has lost the
confidence of the House but refuses to resign and instead asks the YDPA to declare an
emergency, and where the government is deliberately undermining the public order of its own
political gains. Therefore, the decision in Mohd Amin looks more realistic and sensible and is
closer to democracy as it disapproves of the permissibility of a caretaker government to declare
an emergency.
The view which asserts that His Majesty must act on advice underlines the literal way of
understanding the constitution, effectively treating His Majesty as a rubber stamp for the
government of the day. This may defeat the whole idea of having an emergency provision in the
first place.

4. What was the decision of Madhavan Nair v Government in relation to Art 150(1) of FC?
In Madhavan Nair v Government (1975), though emergency rule passes legislative power to the
YDPA, Justice Chang Min Tat opined that emergency rule does not displace the King’s position
as the constitutional monarch, bound by the Constitution to act at all times on the advice of the
Cabinet. In Madhavan Nair v Government of Malaysia, the court mentioned that the YDPA as
a constitutional monarch is bound by the FC to act at all times on the Cabinet’s advice, even
during emergency rule which passes the legislative power from Parliament to His Majesty.

5. What was the decision of the Indian case of S R Bommai in relation to proclamation of emergency?
The case of S.R.Bommai vs Union of India is a very landmark case in the purview of the
Indian Constitutional history relating to the proclamation of emergency under Article 356
of the Constitution. The case mainly came up with the issue, of the power of the President
to issue proclamation under Article 356 of the Constitution including the power to dissolve
State Legislative Assemblies and also issues relating to federalism and secularism as a part
of basic structure.
This landmark verdict put restrictions on the centre for imposing the President’s Rule on states.

● It said that the power of the President to dismiss a government of a state is not absolute.
● It said that the President should use this power only after his proclamation (of imposing
President’s Rule) has been approved by both Houses of the Parliament.
● Until then, the President can only suspend the Legislative Assembly.
● In case the proclamation does not get the approval of both the Houses, it lapses at the end
of a period of two months, and the dismissed government is revived.
● The suspended Legislative Assembly also gets reactivated.
● The SC also stated that the proclamation of the imposition of Article 356 is subject
to judicial review.

6. Explain Art 150(8) of FC.

Article 150(8) of FC clearly provides that the courts cannot adjudicate upon the validity of
a proclamation or ordinance and on the continued validity of a proclamation or
ordinance. Hence, Judicial review of emergency proclamation is now constitutionally ousted.
The effect of Article 150(8) of FC bars any forms of judicial review on emergency legislation.
Thus, the satisfaction of YDPA shall be final & conclusive and it shall not be challenged or
called in question in any court on any grounds. Besides, no court shall also have jurisdiction to
entertain or determine any application, question or proceeding on any ground regarding validity
of emergency law.

As a result of this provision, this will lead to the startling proposition which upheld in
Eng Keock Cheng v PP (1966) that during an emergency, fundamental rights can be violated
even by way of delegated legislation framed under the authority of an emergency law. In
Johnson Tan Han Seng v PP (1977) even a sub-delegation to the Attorney- General which
violated a fundamental right was upheld as permissible.

Therefore, even if the law enacted during emergency is inconsistent with the Federal
Constitution, the Courts shall have no jurisdiction to question any laws that passed during an
emergency.

7. Identify the answers to the three questions raised in the article

https://alsamalaysia.com/constitutionality-of-the-emergency-declaration-in-a-pandemic-2/

First issue - There are two contrasting opinions about whether the YDPA is constitutionally
bound by the PM’s advice to issue a Proclamation of Emergency. In Teh Cheng Poh v Public
Prosecutor,[4] the Privy Council held that since the YDPA is a constitutional monarch, the
words ‘is satisfied that’ in Article 150(1) actually refers to the opinion of members of the
Cabinet, and not the personal opinion of His Majesty. This is because the YDPA is bound to
act on the Cabinet’s advice at all times according to Article 40(1) FC, except for the
appointment of PM, withholding the consent for a request to dissolve Parliament, or the
requisition of a meeting of the Conference of Rulers.
On the other hand. in Public Prosecutor v Mohd Amin bin Mohd Razali & Ors,[5] the accused
raised a preliminary objection to challenge the validity of the Essential (Security Cases)
(Amendment) Regulations 1975. According to him, the Regulations which was validated by
the Emergency (Essential Powers) Act 1979 is null and void as the YDPA did not act on the
Cabinet’s or a Minister given authority of the Cabinet’s advice. This was because, at that time
in 1969, Dewan Rakyat had been dissolved for the General Election. The court held that by
referring to Art.150(1), it is evident that the YDPA can issue a proclamation of emergency if
His Majesty himself thinks that a grave emergency is occurring. Therefore, since there is no
cabinet formed yet at that time right after the elections, the YDPA has a royal prerogative to
declare an emergency without the need to follow the Cabinet’s advice. Even assuming that
the YDPA must act on the Cabinet’s advice in issuing a Proclamation of Emergency, the
previous Cabinet, which is the caretaker government before the elections, can advise the
YDPA on emergency matters and national policies. However, it is still up to the YDPA whether
he wants to be bound by that advice or not.

It is worth pointing out that Article 40(2) FC not only provides the 3 functions which the YDPA
has discretion in performing, but it also provides “and in any other case mentioned in this
Constitution”. Therefore, it is likely that Article 150(1) of the FC is that “other case
mentioned”. The PM can always advise the YDPA to issue an Emergency Proclamation, but
the YDPA is not totally bound by such advice as His Majesty being the final decision-maker
can reject with reasonable grounds.

Second issue - Clearly, the prime minister can request for the dissolution of Parliament when he
ceases to command the majority in the Dewan Rakyat. If the king, on his own wisdom withholds
consent to dissolve under Article 40(2)(b), the prime minister is left with only one option, to
resign.

This still does not answer the question - can the prime minister advise for dissolution as and
when he wishes to or feels like it?

It would seem that there is nothing to stop the prime minister from doing so. I would think this is
why the intent of the framers of the Federal Constitution gave the king the absolute discretion to
withhold consent for dissolution under Article 40(2)(b) of the Federal Constitution.

Otherwise, such advice would have come under the purview of Article 40(1) of the Federal
Constitution where the king shall (must) act in accordance with advice.

Conventionally, the King always accepts the PM’s request for dissolution. But he is not
bound by it. One can conceive of some situations when the monarch would be justified
in refusing the advice.

For instance, if a government that is defeated at a general election requests an

immediate second dissolution but the monarch believes that a stable alternative
government can be formed. Or if a general election during a time of crisis or emergency
could prejudice the national interest. Or if a prime minister, having lost the poll for his
party’s leadership, seeks to improve his political fortune by requesting a dissolution of
the Dewan Rakyat.
Two precedents exist at the state level. In Kelantan in 1977, the mentri besar had been
dismissed by the PAS–dominated assembly on a vote of no–confidence. His advice to
dissolve the assembly and call a new election was rejected by the Regent.

In Sabah in 1994, the PBS chief minister had called an early election. He won a
resounding majority in the assembly but lost it due to the morally reprehensible but
politically rampant phenomenon of floor–crossing. His request to the governor to hold
an immediate re–election was rejected.

It is to be noted that while the monarch can reject the advice of the PM to dissolve the
Dewan Rakyat prematurely, he cannot order a dissolution on his own initiative. That
would be a grave departure from his constitutional duty to remain above partisan
politics.

- Ydpa is not bound to advice of PM, esp when the king feels that the advice given is
improper/ in bad faith
- Can refuse to declare emergency

Third issue - Judicial review: But what if the ruling party abuses emergency powers to
subvert the Constitution, to overthrow unfriendly state governments and to postpone
elections?

In India, the federal government has repeatedly abused emergency powers to remove
elected state governments and to impose federal rule. Statistics indicate that state
governments, often controlled by opposition coalitions, were federalised 103 times
between 1950 and 1995!

The Supreme Court of India, therefore, intervened in S R Bommai’s case (1994) to hold
that the validity of a proclamation can be judicially reviewed to determine whether it
was issued on relevant material and whether it was in bad faith.

Malaysian jurisprudence is, however, generally in favour of judicial non–intervention on

the issue of proclamation of an emergency: Stephen Kalong Ningkan (1968) and PP v
Ooi Kee Saik (1970). A constitutional amendment in 1981 barring all judicial review of
emergency powers under a new clause 150(8) seems to put the issue beyond all doubt.

However, there remain seeds here and there in the Kalong Ningkan cases that mala fide
(bad faith) may be a ground for judicial scrutiny of emergency powers.

It remains to be seen whether these subdued voices will one day become mainstream.

Till then, it can be summed up that a government with a majority in parliament (but not
a caretaker government) has the right to give binding advice to the King relating to the
exceptional powers under Article 150.

However, if the government abuses its emergency powers for wrongful purposes, three
possibilities come to mind. First, a sagacious monarch may delay, caution and warn.
Second, he may refuse to issue the proclamation and his refusal cannot be reviewed by
the courts because of Article 150(8) which cuts both ways. Third, there is some
possibility of scrutiny by the courts of issues of mala fide – remote though this
possibility is on existing jurisprudence.
 - Article 150(8) – decision of king is final and conclusive, no cts is allowed to challenge the
decision of king whether king decides to proclaim emergency or not

Question 2
Explain the facts, issues, decision (Federal Court and Privy Council) and legal principles
(Federal Court and Privy Council) derived from Stephen Kalong Ningkan v Government of
Malaysia [1968] 1 MLJ 119, Federal Court; [1968] 2 MLJ 238, Privy Council.

Facts: On the 16th June 1966, the Governor of Sarawak had received a letter signed by 21
members of the Council Negeri stating that they no longer had any confidence in the plaintiff,
their Chief Minister. The Governor informed the plaintiff that from representations he had
received he was satisfied that the plaintiff had ceased to command the confidence of the Council
Negeri and invited the plaintiff to resign. The plaintiff in his reply informed the Governor that
the Governor's views as to the loss of confidence of the members of the Council Negeri in the
plaintiff was not supported by the meeting of the Council Negeri held on the 14th June and the
plaintiff in the same letter requested that he be supplied with the names of the persons who had
signed the representations. In reply to this letter the Governor informed the plaintiff that as the
plaintiff had refused to tender the resignation of members of the Supreme Council, in accordance
with Article 7(1) of the Constitution of the State of Sarawak, he declared that the plaintiff and
other members of the Supreme Council had ceased to hold office and appointed the second
defendant as Chief Minister forthwith. The Governor also forwarded a list of the names of
persons who had signed the representations as requested by the plaintiff. The plaintiff then
commenced proceedings against the Governor and the second defendant.

Issue: 1. Whether the Governor has a power of dismissal?

2. Whether the Governor’s declaration that the plaintiff had ceased to hold the office of Chief
Minister was constitutional?

Held: The Federal Court held that under Art 150 of the Federal Constitution, the Federal
Parliament has power to amend the Federal Constitution as well as the state. The non-obstinate
clause in the Act overrides the provision relating to concurrences and consent. The prime
minister may invoke Article 66(4A) of the Federal Constitution to bypass the Agong after a
period of thirty (30) days. Article 150(1) also states that if the Yang di-Pertuan Agong (YDPA)
is satisfied that a grave emergency exists whereby the security, or the economic life, public order
in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency
making therein a declaration to that effect.

The Privy Council held, dismissing the appeal that the onus was on the appellant to shew that the
proclamation of emergency was in fraudem legis as alleged by him or otherwise unauthorised
by the relevant legislation and in this case the appellant had failed to discharge the onus
on him; (2) article 150 of the Federal Constitution gave power to the Federal Parliament to
amend or modify the Constitution of Sarawak temporarily if Parliament thought such a
step was required by reason of the Emergency. In the circumstances the Federal Parliament
had power to enact the Emergency (Federal Constitution and Constitution of Sarawak) Act,
1966 and therefore the appeal must be dismissed.
The Governor of Sarawak was limited by Article 6(3) of the Constitution of Sarawak to
appointing as Chief Minister a member of the Council Negeri who in his judgment was likely to
command the confidence (and approval) of the Council Negeri and therefore it followed by
section 21 of the Interpretation Ordinance that only when the Council Negeri had shown lack of
confidence(and lack of approval) could the Governor's power to dismiss, if it exists, be
exercised. Under the provisions of the Sarawak Constitution lack of confidence may be
demonstrated only by a vote in the Council Negeri. Secondly, if the Constitution of Sarawak
could be construed as giving to the Governor a power to dismiss the Chief Minister when he had
refused to resign and failed to advise a dissolution then in this case the plaintiff was never given
a reasonable opportunity to tender his resignation or to request for a dissolution.

- 1966 constitutional crisis

-

(extra dun read) The facts of the case are as follows, the plaintiff in his statement of claim
claimed (a) that the proclamation of a state of emergency made by the Yang di-Pertuan Agong
on the advice of the federal cabinet on Sept 14, 1966 was null, void and of no effect by reason of
the fact that it was not made bona fide but was made in fraudem legis (b) that the Emergency
(Federal Constitution and Constitution of Sarawak) Act, 1966 of the Parliament of Malaysia was
null, void and no effect.
The defendants applied for the writ and pleading to be stuck out because they involve matters
beyond the jurisdiction of the court. The appellant is the chief minister of Sarawak ousted by the
governor of Sarawak due to a letter sent by the members of the Sarawak state assembly headed
by Temenggong Jugah.
His position was reinstated by the Court. However, when he called a snap election, the Yang di-
Pertuan Agong has called a state of Emergency and proclaimed that martial rule applies. Hence,
the Sarawak governor commenced the Council Negri Meeting. A vote of no-confidence was
passed on Sept 23, 1966 and this has resulted in the removal of Ningkan from the chief minister
office for the second time.
However, now with the implementation of the NSC Act 2016, the prime minister will have the
unfettered discretionary power to declare, upon the advice of the National Security Council
(NSC), a “security area”, defined as being a location of high risk e.g. causing serious harm to the
people of Malaysia, economy or the key infrastructure in interest of Malaysia. The declaration is
valid up to six (6) months, and can be renewed for an infinite number of times.
A detainee under Article 151 had to be released after three months of detention, unless the
advisory board of detainees considered that there was sufficient cause for the detention.
However, with the implementation of the NSC Act 2016, armed forces operating in a “security
area “ will be given sweeping powers, including the capability to arrest and detain persons (the
detainee’s council will be unable to apply for habeas corpus), enter and search premises and
seize property without a warrant.

Article 150 – Essay

Most constitutions in various countries have provided a provision for the exercise of special
powers to deal with crisis. In Malaysia, the wide and arbitrary powers are divided into two types
under Article 150, power to combat emergency and Article 149, power to deal with subversion.
Even though both provisions may lead to various abuses, however there are still needs for such
provisions. In order to curb the abuses, there must be proper check to uphold the ideal of
constitutionalism.

Under Article 150(1), it gives the Yang di-Pertuan Agong (YDPA) power to issues Proclamation
of Emergency, if he is satisfied that a grave emergency exists as the security, economic life or
public order in the Federation or any part thereof is threatened. Under Article 150(2), the
proclamation maybe issued even before the actual occurrence of the threatened event as long
YDPA satisfied there is imminent danger. This situation would occur when the Government had
reliable intelligence report indicating some security threat. While Article 150(3) allows two or
more validly overlap emergency proclamation besides the later does not impliedly revoke the
other. For example, the 1977 emergency relating to Kelantan had overlapped with emergency
during May 13th incident in 1969.

In Stephen Kalong Ningkan v Government of Malaysia, the Privy Council defines the word
‘emergency’ as ‘capable of covering a very wide range of situations and occurrences including
wars, famines, earthquake, floods, epidemic and collapse of the civil government’. However, the
occurrences must be grave as to threaten the security or economic life of the Federation.

From the above articles, there are 2 controversies as to the declaration of emergency such as
whether the YDPA must act on advice of the government or might act on his discretion. Thus, in
short, who actually has the power to declare emergency. In Abdul Ghani Ali v PP, the Federal
Court agrees with the opinion in the case of Teh Cheng Poh v PP which stated that the YDPA
does not have a personal discretion under the Article 150(1) but has at all-time act on the Cabinet
advice. It is submitted that the proclamation of emergency by YDPA is not free from the
constitutional requirement to act in accordance with the advice of the Prime Minister (PM) under
Article 40(1). Therefore, the power to declare emergency is of the federal power not on
discretion of YDPA.

On a different view in PP v Mohd Amin Mohd Razali, the High court held that if Parliament is
sitting and the cabinet is in existence, the YDPA must exercise his powers on the advice of
government. Nevertheless, during dissolution of Parliament, there is no Cabinet in existence
thus; the YDPA may issue Proclamation of Emergency on his discretion. Besides, the decision
will look more realistic, sensible and closer to democracy as the caretaker government have no
power to declare emergency in a situation such as the military coup d’état.

The consequence of an emergency proclamation is that the executive acquires plenty of law
making powers, the Parliament’s legislative power has broaden, separation between federal and
state executives and law making powers by delegated authorities.

Firstly, the YDPA will have power to legislate. Under Article 150(2B), when parliament is not
sitting and at the same time emergency is declares, the YDPA have power to make any ordinance
(law) as he satisfied that it is necessary for him to take immediate action. The ordinances require
no procedures and no vote in Parliament. This provision has given wide discretionary power to
the YDPA.

Besides that, power given to YDPA is widen under Article 150(2C) where the ordinance shall
have the same force and effect as in the Act of Parliament. In Johnson Tan Han Seng v PP,
there are 4 appeals to be heard. The appellants were charged under the Internal Security Act
1960 and some were sentenced to death and life imprisonment. Harun J, in the first instance
court decided that the 1969 proclamation has lapse since a period of 7 years has passed.
However, on appeal, the Federal Court disagree with the decision and referred to Article 150(3)
and decided the Proclamation of Emergency stops to have effect only if it is revoked or
Parliament by resolution annuls it. After the Constitution (Amendment) 1960, now an
Emergency Ordinance has no fixed time duration. It can last until it is revoked by YDPA or
annulled by parliament under Article 150(3) or till it lapses after 6 months on the termination of
emergency under Article 150(7). However, if emergency is not removed, the state of emergency
will continue as happened in Malaysia where are still in state of emergency since 1964 before it
has been removed a few years back.

Secondly is the enhancement of Parliament’s legislative powers. Under Article 150(5),

parliament may make laws with respect to any matters, as long parliament satisfied that it is
required by reasons of the emergency. Moreover, any restrictions imposed by the Constitution or
any written law requiring any consent, concurrence or consultation or restricting the enforcement
of law is inapplicable. Besides, the consent of the Conference of Rulers and the Governors of
Sabah and Sarawak is not needed. Emergency legislation can be enacted only by a simple
majority of those present and voting. Furthermore, Article 150(6) provided that, following a
proclamation, an Act of parliament which appears to be required by reason of the emergency, no
provision of such Act can be invalidated on the ground of inconsistency with any provision of
the Constitution. However, the supremacy of emergency law does not extend to constitutional
provision with respect to Islamic law, Malay custom, native custom in Sabah and Sarawak,
religion, citizenship or language as stated in Article 150(6A).

Thirdly, under Article 150(4), during the continuance of an emergency, the separation of the
federal and state executives is being suspended. This is due to the federal executive authority
extends to any matter within the state government. Thus, the federal government has control over
the state government.

Fourth, due to proclamation, delegated authorities also may enact emergency laws. Whatever
parliament can do, it can authorise a delegate to do on its behalf. As in Eng Keock Cheng v PP,
the court held, during an emergency, fundamental rights can be violated even by way of
delegated legislation.

ADD 4 EVENTS ON EMERGENCY DECLARATION (konfrontasi + swak+

Kelantan + 13th May)

By abstracting the consequences of an Emergency Proclamation, it can be seen that, a wide and
arbitrary powers has been given to the branches of government. Thus, some control should have
been taken to limit the emergency powers given. Such control and security can be implemented
by the Judiciary, Parliament and Executive. Firstly for Judiciary, is the issue relating to the
judicial control over a proclamation is stated under Article 150(8). Before 1979, in the case of
Stephen Kalong Ningkan, Federal Court had held a proclamation was not justiciable. However in
1979, in Teh Cheng Poh’s case, the Privy Council indicate that it would probably have held an
emergency proclamation justiciable as it was held that the continuance of a security area
proclamation under the Internal Security Act 1960 is justiciable.

However, Article 150(8), which was introduced in 1981 as a result from The Cheng Poh’s case,
it sought to prevent the intrusion of judicial review on matters where (a) the satisfaction of
YDPA regarding the proclamation and ordinances, shall be final and conclusive and not be
challenged or called into question in any court on any ground and (b) no court shall have
jurisdiction to entertain any application , question or proceedings regarding the validity of a
proclamation, the continued operation of such Proclamation, any ordinances promulgated under
clause (2B) or the continuance in force of such ordinance. However, in a country with
constitutional supremacy, question on constitutionality can never be removed from judicial
review. The decision by YDPA only refers to valid decision. An invalid decision is a nullity. For
example, if the authenticity of the proclamation is in doubt, judiciary may actually review.

Secondly for judiciary is the issue of judicial review of Emergency Ordinances and Acts. In the
context of emergency law under Article 150(6A), it is clear that 6 sensitive issues cannot be
trifled with. If Parliament or YDPA unconstitutionally legislate relating those 6 issues, judicial
review may be implemented. Third for judiciary, judicial review may be implemented if the
subsidiary legislation be declared invalid if they ultra vires the enabling law or inconsistent with
Article 150(2B), 150(6A) and 151.

On the other hand, Parliamentary control is first over the Proclamation itself. Under Article
150(3), it requires the proclamation of emergency and also the ordinances to be laid before both
Houses of parliament. Failure to lays could be treated as a fatal defect causing the emergency
proclamation to lapse. In Lim Woon Chong v PP, there was an allegation that the 15th may
1969 Proclamation was not submitted to Parliament’s scrutiny when it reconvened. However,
court found out that the proclamation had in fact been laid. This shows that how important for
the proclamation to be laid upon the Parliament. Similarly, in IGP v Lee Kim Hoong, court held
that the lying requirement is mandatory and the effect of non-compliance is that the ordinance
ceases to have effect after parliament convenes.

For the executive control, the check on the exercise of emergency powers is contained within the
executive itself. As if, the Prime Minister cannot present such advice to the YDPA with decision
of the Cabinet. Thus, an emergency cannot be proclaimed unless the Cabinet, which comprises
members of several political parties and all races, agrees.

Article 150&149 tgt essay

Article 150 is about Proclamation of Emergency. The provisions for emergency in the FC can be
traced back to the insurgency war against the communist terrorists after World War II. In
Malaysia, the emergency lasted up to 1960 and terrorist incidence occurred right up to 1989
when the CPM negotiated a settlement with the government. The provisions of Article 150 are
extremely wide and has been said to be ‘extraordinarily extensive’ and has the ‘capacity to
destroy the entire constitutional order’. There has been six amendments to Article 150 which has
further widened the provision. Article 150 (1) states that it is for the Yang diPertuan Agong to
issue a Proclamation of emergency. In 1983, an amendment was tabled to transfer this power to
the Prime Minister but the attempt failed. Proclamation of emergency is a serious matter as it
obstructs the normal fabric of the constitutional structure.

Emergency was declared in Malaysia during 13 May 1969. There were bloody race riots between
Chinese and Malay on May 13, 1969 that nearly ripped Malaysia apart. Dozens were killed and
4,000 were arrested. They occurred after a hotly contested general election in which the ruling
party lost many seats to the opposition and the parties tried to win voters by making racial
attacks at one another. The government declared a state of emergency, and a National Operations
Council, headed by the Deputy Prime Minister, Tun Abdul Razak, took power from the
government of Tunku Abdul Rahman, who in September 1970 was forced to retire in favour of
Abdul Razak. Using the Emergency-era Internal Security Act (ISA), the new government
suspended Parliament and political parties, imposed press censorship and placed severe
restrictions on political activity. The ISA gave the government power to intern any person
indefinitely without trial. These powers were widely used to silence the government’s critics, and
have never been repealed. The Constitution was changed to make illegal any criticism, even in
Parliament, of the Malaysian monarchy, the special position of Malays in the country, or the
status of Malay as the national language. Malaysia being the state of emergency until 2011 when
former PM Najib comes in and undeclared the emergency. Undeclared of emergency causes a lot
of problem where a lot of criminal offender who was accused under the law passed during
emergency, was all being released when the emergency was undeclared.

First, is whether the proclamation is challengeable at all? Looking at before the insertion of
clause 8 into the article, we have Stephen kalong Lingkan v Government of Malaysia, this
case was actually after Stephen kalong Lingkan v Tun Haji Openg, where the plaintiff as a
Chief Minister of Sarawak got sacked by the governor of Sarawak without tabling a vote of no
confidence before the State Assembly. The court held that the sack was invalid according to the
Art6 (3) of the Constitution of Sarawak that requires the no confidence vote. But we should note
that the no confidence can only be initiated by the CM himself which he would never do so,
because of that, the governor declared an emergency and the federal government interfered and
called for a no confidence vote and sacked Stephen. The proclamation was challenged in Stephen
kalong Lingkan v Government of Malaysia but the court held that they cannot question it.

In the case of Dato Seri Anwar Ibrahim v PP, Haidar FCJ decided that no challenge could be
made to the continued operation of ordinances made under Article 150 and said if one wants to
challenge, he should bring it to the legislative or the ballot casting. This proves that the only way
to challenge it is by the Parliament itself, no one else can challenge the proclamation of it.
The second issue is whether the Yang di-Pertuan Agong could act in his own discretion in
proclaiming emergency. In the case of Abdul Ghani Bin Ali v PP, where the court refereed to
The Cheng Poh v PP saying that there is no personal discretion by the YDPA, and has to act on
the advice of the cabinet, and by cabinet, the latter case affirms that cabinet is represented by the
PM and the PM is the sole link between cabinet and the YDPA, so must act on advice by PM.
However, in the case of PP v Mohd Amin, it was held that the Yang di- Pertuan Agong may act
in his discretion in issuing an emergency proclamation. The view which asserts that His Majesty
must act on advice underlines the literal way of understanding the constitution, effectively
treating His Majesty as a rubber stamp for the government of the day. This may defeat the whole
idea of having an emergency provision in the first place.

Third issue is whether a state of emergency could cease by effluxion of time i.e. when the
occurrence or imminent danger of its occurrence no longer exists. This issue can be seen
discussed in Johnson Tan Han Seng v PP, where those accused were charged under ISA which
made under Art 149 and in force during emergency and some of the accused were given
mandatory death penalty. The first instance court gave judgement saying proclamation has
lapsed since 7 years has passed, but the apex court dissent saying it must be revoked by the
parliament itself. So, in other words, this issue can be seen as if the parliament does not revoke
the emergency proclamation, it sustains forever.

The next issue is the scrutiny or controlling of such issue. Given the wide nature of the
emergency powers, the question arises as to whether there are any forms of control over such
powers. It must be noted that the extent of these powers may amount to nothing less than the
power of virtual suspension of the entire constitutional order during the currency of an
emergency proclamation. With regards to the control by the judiciary, it must first be noted that
the Privy Council in cases such as Teh Cheng Poh v PP seems to have indicated that such an
emergency proclamation is indeed justiciable. Nevertheless, Article 150(8) clearly provides that
the courts cannot adjudicate upon the validity of a proclamation or ordinance and on the
continued validity of a proclamation or ordinance. Take note however that the amendments to
the constitution did not take into account the issue of the justifiability of regulations made under
emergency ordinances. With regards to scrutiny by Parliament, it must be noted that the
executive can suspend the operation of Parliament indefinitely. Also, the executive has a
majority in Parliament. As such, Parliament is also not an effective check. The only possible
scrutiny may come from within the executive itself. The PM is not supposed to present advice to
the Yang di-Pertuan Agong for such a declaration unless Cabinet agrees. As such, the Cabinet
can act as a check on the PM. Nevertheless, one must not overestimate such internal checks
because ultimately, the PM still has wide powers in the declaration of an emergency.

In normal situations, maybe YDPA shall listen to minister, but PM become incapacitated if
emergency declare. Therefore, YDPA have duty to decide. If PM abuse his power, YDPA must
know what to do and court should stop PM and review must come in. Check and balances must
have. Emergency cannot ended by itself and emergency declaration is still valid unless annul by
Parliament.

There must have a separation of power between the 3 branches of government, judiciary,
parliament and executive. In parliament, many procedures in parliament are for parliament to
check the executive. But if the parliament overdo, it is a breach of SOP. If executive passed a
bill, parliament only can object when necessary. If the system too transparent, it is total breach of
SOP, it shouldn’t go that way. There must be check and balances. Besides, judiciary can carry
put judicial review of any action of executive because it is part of check and balances. However,
in reality, there are many ways executive escape from judicial review. It is the opinion of the
judges themselves that certain decision, executive know what is correct and what is wrong.
Executive always hide behind motion of public security. If you want to review certain decision in
court, government normally would not let you review and will use national security as defence.
Therefore, judicial review is not very well done in Malaysia.

For the proclamation, Malaysia can be seen have 4 major proclamations. First, is the Stephen
Kalong Lingkan case or also known as 1966 Sarawak Constitutional Crisis? This case shows
that there can be abuse of power on declaring emergency not on any grounds stated under Art
150(1) but when the governor felt like it. So this does not prove only the discretionary power of
the governor, and also knows that it is not questionable even the declaration was not justifiable.
This case can be related to Kelantan 1977 Crisis where the proclamation of emergency was done
by the federal government just because it thought that the state government could not be carried
anymore when the CM did not want to step down and had demonstration after a no confidence
vote was done on him. We can see also the demonstration was not a riot and did not threaten the
national security, so it was technically not justifiable under Art 150(1).

Next is the proclamation during May 13, 1969 incident which was never revoked until 40 years
later in 2011 when the racial tension was clearly evaporated since long ago. Because of that, laws
such as ISA was in operation that time. Next, we have 1948 Emergency proclaimed on the
ground of national security when Indonesia came with armed aggression on objection to form
Malaysia. The aggression involved air and sea military activities. The purpose of the
proclamation can be seen clear but the failure of the parliament to revoke it until now has
become an issue when such tract does not exist anymore.

So from all of these, we can see that Art 150 is very dangerous provision in a country that
practised constitutional supremacy and democratic. It can be used as abuse of power for own
political gains.

Next, Article 149 allows Parliament to make laws inconsistent with Articles 5, 9, 10 and 13.
Laws passed under Article 149 can be draconian laws and often depart from the norms of
separation of powers and limited government. In view of the provisions of emergency powers,
one would wonder whether there is a need for powers against subversion. The Reid Commission
seemed to suggest that measures may be needed to deal with any further attempt by any
substantial body of persons to organise violence against persons or property. The main difference
from emergency powers is that emergency powers could be exercised by the executive even
before Parliament sat, while here, it could only be exercised after a debate in Parliament.

It must be stated that the Reid Commission report took into account the emergency at that time
i.e. the threat by the Communists. In fact, it was contented in several cases that Article 149
should only be restricted to communist insurgencies. In fact, in proposing the Internal Security
Bill, Tun Abdul Razak seems to have opined as such too. However, in cases such as Theresa
Lim Chin Chin and Mohamad Ezam Bin Mohd Noor, the courts are of the opinion that
Article 149 is not restricted to communist insurgencies. The Privy Council in Teh Cheng Poh
also noted that Article 149 ‘is quite independent of the existence of a state of emergency’. They
went on saying that action taken under Article 149 must be bona fide for the purpose of stopping
or preventing subversion. The effect of Article 149 is to validate what is supposed to be invalid
under Articles 5,9,10 or 13. The courts stated in PP v Musa affirmed that such law can deprived
our rights under Art 5, 9, 10 and 13 and also giving parliament power that was out of their
jurisdiction. Article 5 generally relates to the liberty of the person. Article 9 relates to the
prohibition of banishment and freedom of movement of citizens; article 10 relates to freedom of
speech, assembly and association. Article 149 clearly gives a very wide power of legislation,
particularly when it says that any provision of the law designed to stop or prevent the action
which has been taken or threatened is valid notwithstanding that it would apart from this article
be outside the legislative power or Parliament and particularly when it says that notwithstanding
that it is inconsistent with article 5.”

The ISA is an example of an Act passed under Article 149. For example, S.8(1) of ISA gives
power to HM which is not under judicial system to make a detention order for anyone for 2
years, if he is satisfied that person is threatening national sectary or economic life. S.73 also
gives the police power to detain person without warrant on grounds under S.8 up to 60 days. To
make it worse, S.9 (7) allows the detention order to be renewed, which menas the detention can
be indefinite. Besides the ISA, the EPOPCO [Emergency (Public Order and Preventive of
Crime) Ordinance was also enacted in 1969 pursuant to Article 150 of the FC.

The Malaysian government is therefore equipped with very wide powers of detention. Even with
the collapse of the communist party, such laws has not been repealed and has often been abused.

The courts are also unwilling to question the subjective opinion of the minister. The minister
need not therefore show that his grounds for acting are objectively reasonable. This is what is
commonly known as the subjective test of judicial review.

The only protection detainees have for laws passed under Article 149 and 150, is under article
151. For e.g. the detaining authority must inform the detainee of the grounds of his detention,
and the allegations of fact on which the detention order is based, and must give him an
opportunity of making representations against the order as soon as may be. The courts have also
been willing to interfere with detention orders on procedural grounds.

Nevertheless, as Justice Abdul Hamid puts it in relation to Article 149, “if there arises any real
emergency, and that should only be an emergency of the type mentioned in Article 150, then and
only then should such extraordinary powers be exercised. It is in my opinion unsafe to leave in
the hands of Parliament power to suspend constitutional guarantees only by making a recital in
the preamble that conditions in the country are beyond the reach of the ordinary law. Ordinary
legislative and executive measures are enough to cope with a situation of the type described in
Article 149. That article should in my view be omitted. There should be no half-way house
between government by ordinary legislation and government by extraordinary legislation...”
Art 150 is proclamation of Emergency. Before something happen, YDPA can declare the
emergency even there may be nothing yet. YDPA no need to prove to us why he declare
emergency. If he feels that in need to declare emergency, even nothing happen. He still can do it.
YDPA can make any law they want if parliament sitting and the law have same effect of
parliament, and no need to follow the procedure to make the law, even the law is against the
constitution. YDPA can make the law without the two third of the majority votes. If YDPA say it
is emergency, then it is emergency, we cannot question about it. We cannot ask for judicial
review, challenge the emergency declaration in court, cannot challenge the operation of the
emergency, ordinance passed during emergency unless Parliament remove the emergency
declaration. Therefore, when emergency is declared, our rights under the constitution will all
suspended.

Art 149 no need to declare emergency, can be used anytime, anywhere. The Article 149 Special
Powers against Subversion permit the violation of fundamental rights contained in Articles 5
(relating to personal liberty), 9 (relating to prohibition of banishment and freedom of movement),
10 (relating to freedom of speech, assembly and association) and 13 (relating to rights of
property). Art 149(1) provides that when parliament passed an act, e.g ISA, all they have to do is
reside the preamble of the act that the act was passed for one of the purposes under Art 149(1)
(a)-(f). For instance, POTA 2015 was passed under Art 149 whereby it allow detention without
trial. Home minister is the one that determine whther to execute you, by right it should be the
judiciary to decide, therefore, POTA is actually against ROL and Sop because it allow wide
arbitrary power.

In short, under Art 150 when emergency is declared, our rights under the constitution will all
suspended while Article 149 permit the violation of fundamental rights contained in Articles 5
(relating to personal liberty), 9 (relating to prohibition of banishment and freedom of movement),
10 (relating to freedom of speech, assembly and association) and 13 (relating to rights of
property).

In conclusion, the situation in Malaysia appears rather illogical. Reading of the statues would
create the impression that Malaysia was in social chaos and there are racial strife and political
subversion, which is of course not true. The irony is that many countries which do have such
problems, do not have such special laws. Even if there are such laws, there are often sufficient
scrutiny over such laws. Therefore, the rule of law in Malaysia falls short of what is tolerable and
is definitely not ideal.

PROB QUESTION – proclamation of emergency

IS: whether proclamation of emergency is lawful

The first issue is whether the proclamation of emergency proposed by Mike as the Prime
Minister is lawful under Federal Constitution.

According to Article 150(1), If the Yang di-Pertuan Agong is satisfied that a grave emergency
exists whereby the security, or the economic life, or public order in the Federation or any part
thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to
that effect. There need not be actual violence or breach of peace as threat or imminent danger is
enough.

Referring to the facts given, Mike as the Prime Minister had requested the YDPA in proclaiming
a state of emergency by the reason of providing an efficient fight against the coranavirus
pandemic. On the matter of coronavirus, it has then threatened the economic life of people and
the security of the nations as illegal immigrants who are potentially infected of the coranavirus
might spread the diseases among the Malaysians and the political instability in Malaysia would
render the nation in thereat. Therefore, since the economic life and security of the nations has
been threathened by the risk of infection of coranavirus and pursuant to Article 150 (1) of FC, in
the event that the YDPA has satisfied that the grave emergency exists, the YDPA may issue the
proclamation of emergency.

Moreover, the Privy Council broadened the conceptual perimeters of emergency by declaring in
Stephen Kalong Ningkan v Government (1968) that "emergency" is not confined to the unlawful
use or threat of force. It includes wars, famines, earthquakes, floods, epidemics and collapse of
civil government.

With regards to the current situation, the proclamation of emergency is intended to declare by the
PM on the justification of curbing the spread of coranavirus, hence, the coranavirus as a
pandemic has then fallen under the category of epidemics pursuant to the case of Stephen Kalong
Ningkam v Government. Therefore, it is lawful for the PM to declare emergency as a measure of
preventing the spread of corona virus as an emergency need not be an actual violence or breach
of peace; threat or imminent danger is enough.

In conclusion, it is highly possibly that the proclaimation of emergency proposed by Mike as the
Prime Minister is lawful under Federal Constitution

IS: whether YDPA can refuse PMs advice

The second issue is whether the YDPA has the jurisdiction to refuse the advice of Mike as Prime
Minister in proclaiming the emergency.

If the government abuses its emergency powers for wrongful purposes, there are 3 possibilities
namely sagacious monarch may delay, caution and warn; YDPA may refuse to issue the
proclamation and his refusal and the possibility of scrutiny by the courts of issues of mala fide.

In addition, in Stephen Kalong Ningkan v Government of Malaysia, the Federal Court held that:
“it is the King alone who decides whether a state of emergency” where the security or economic
life of the country was threatened, existed and that the King’s judgment on that was non-
justiciable, or not reviewable by the courts.

The similar appraoch has then been agreed and affirmed by several titans in the judiciary in
which Former Court of Appeal judge Tan Sri Mohamad Ariff Md Yusof had in a public
statement argued that there is a sound constitutional basis for the YDPA to reject advice to
proclaim an emergency, pointing out among other things the role of the Federal Constitution and
the constitutional monarch as part of the system of checks and balances.

Referring to the situation above, the PM had advised the YDPA in proclaiming the state of
emergency. Nevertheless, such advice was refused by the YDPA. The refusal of YDPA is lawful
pursuant to the case of Stephen Kalong Ningkan v Government of Malaysia as it is the King
alone who decides whether a state of emergency where the security or economic life of the
country was threatened. Hence, considering the legal principles laid down in the case and the
opinion of Tan Sri Mohamad Ariff Md Yusof, in the event that the YDPA is in the opinion that
the the security or economic life of the country is not in threat, the YDPA may then refuse the
advice of PM.

Besides, Lawyer Nizam Bashir in which the words “satisfied” and “may” in Article 150(1) of FC
are “suggestive of there being a discretion on the part of the YDPA when it comes to issuing a
Proclamation of Emergency”. Similarly, Tan Sri Mohamad Ariff, former Court of Appeal Judge
and Speaker of House of Representatives cited the words “is satisfied” and “may” in Article
150(1) of FC, said that this points to the YDPA’s “residual discretion”, further arguing that there
is nothing in either Article 40(1) or 40(1A) to cancel out this residual discretion.

Referring to the facts given, with regards to the interpretation of Federal Constitution, both
Nizam Bashir and Tan Sri Mohamad Ariff have opined similarly that the Article 150 of FC is
suggestive on the discretion of YDPA as the words utlised are “is satisfied” and “may”. Through
such interpretation on Article 150(1) of FC, it has shown that the YDPA has the residual
discretion in refusing the advice of Mike as PM in declaring the state of emergency on the
grounds that the emergency is not graved enough to be proclaimed.

Furthermore, in 2020, the YDPA has rejected PM Tan Sri Muhyiddin Yassin’s request to
proclaim a state of emergency in Malaysia. Former Attorney General Tan Sri Tommy Thomas
opined in public statement on October 24, 2020 that the YDPA acts on the advice of the Prime
Minister in relation to Art 150 of FC as Malaysia is a constitutional monarchy, but the YDPA
still has “residual discretion” despite the true decision-maker being the Prime Minister. It is not
automatic that every time a Prime Minister desires a proclamation of emergency, the YDPA
must agree to it. The YDPA is entitled to seek the advice of the Conference of Rulers, or indeed
anyone whose advice the YDPA values.

Referring to the situation above, the PM had advised the YDPA in proclaiming the state of
emergency. Nevertheless, such advice was refused by the YDPA. The event of the YDPA in
refusing Tan Sri Muhyiddin Yassin on the proclamation of emergency has set a precedent to the
current cirsumstance in which the YDPA has the jurisdiction in refusing the proclamation of
emergency advised by the PM. Therefore, through the opinion of Former AG, Tommy Thomas,
it can be seen that the the YDPA still has “residual discretion” to refuse the advice of PM in
declaring the state of emergency despite the true decision-maker being the Prime Minister.

In conclusion, it is high likelihood that the YDPA has the jurisdiction to refuse the advice of
Mike as Prime Minister in proclaiming the emergency.
IS: whether refusal of YDPA is subject to judicial review

The third issue is whether the refusal of YDPA on non-exercise of Emergency Power is
subjected to judicial review in courts.

Article 150 (8) of FC connotes that the satisfaction of YDPA shall be final & conclusive and
shall not be challenged or called in question in any court on any ground and no court shall have
jurisdiction to entertain or determine any application, question or proceeding on any ground
regarding validity of emergency law.

Referring to the situation above, Mike who claims that the YDPA is legally bound to act
according to his advice and would like challenge the YDPA’s decision in court is unlawful
pursuant to Article 150 (8) of FC. This is because judicial review of emergency on the refusal of
proclamation is constitutionally ousted on the ground that Article 150(8) of FC clearly provides
that the courts cannot adjudicate upon the validity of a proclamation or ordinance and on the
continued validity of a proclamation or ordinance. As such, Mike as the PM shall have no
jurisdiction to file a judicial review against the refusal of YDPA on the proclamation of
emergency.

Moreover, in Stephen Kalong Ningkan v Government of Malaysia, the Federal Court held that
the YDPA is the sole judge and once His Majesty is satisfied that a state of emergency exists it is
not for the court to inquire as to whether or not he should have been satisfied.”

Referring to the facts given, it is the YDPA alone who decides whether there is a necessary of
declaring a state of emergency and whether the security or economic life of the country was
threatened. Therefore, YDPA not only vested with the jurisdiction of refusing the proclamation
of emergency but his judgment on that was also non-justiciable, or not reviewable by the courts.
Hence, Mike as the PM shall have no jurisdiction the challenge the decison of YDPA as the
decision of YDPA shall be final & conclusive and shall not be challenged or called in question in
any court on any ground.

In conclusion, it is most likely that the refusal of YDPA on non-exercise of Emergency Power is
subjected to judicial review in courts.