Entrenched Liberties From Codified Constitution

The constitution in the codified, or widely known as written form is said to promise entrenched liberties compared to the unwritten constitution. No amending powers can affect the stipulated status if the fundamental rights of citizen. However, it is indeed theoretical in nature when we have clear examples of the violation of citizens’ right in the constitution of Malaysia and Singapore. Both countries codify their constitution. Yet, the citizens do not enjoy the full privilege of being free.

On the other hand, countries like the United Kingdom is classified with having an unwritten constitution which implies that the country practices parliamentary supremacy instead of constitutional sovereignty as in Malaysia and Singapore. Still, their fundamental rights are so entrenched moreover with the existence of the European Court of Human Rights Convention. It cannot be denied that liberties stipulated in an unwritten constitution do pose a danger as the rights of the citizens could be revoked anytime of the day but it has been proven in some countries that the fundamental rights of the citizens will never be touched under any circumstances. Nevertheless, it is not all written constitutions that restrict the liberties of citizens. The United States of America places utmost priority to the liberties that must be granted to the citizens no matter what. It is considered an outrage to the fundamental beliefs that is the foundation of the constitution in America. Of course much has been debated about the different values upheld by the eastern and western countries in the formation of the constitution. In the West, the rights of a human being are paramount whereas in the East, the welfare of the society is placed above the rights of an individual.

Now when we say that the Malaysian constitution actually poses tight restriction to the fundamental liberties of a citizen, we are referring to provisions like Article 149 and 150, besides Acts enacted for instance the Internal Security Act 1960. Shad Saleem Faruqi [1] has divided the restrictions on the fundamental liberties in the Federal Constitution namely, ordinary legislation enacted under the authority of the constitutional provision granting the right may impose, provisions on subversion may curtail fundamental liberties, fundamental rights except freedom of religion may be suspended under any legislation enacted to battle emergency and rights conferred by the basic law is in danger of being abolished or curtailed under constitutional amendments. [2] Till today, Malaysia is still under four emergency declarations many laws have been enacted under this provision. The four emergency declarations are the Indonesian Confrontation 1964, political crisis in Sarawak only (1966), racial riot in 1969 and political crisis in Kelantan only in 1977. None of these declarations have been removed or annulled. We must be aware of the fundamental liberties stipulated under Part 2 of the Federal Constitution of Malaysia namely Article 5 on the liberty of a person, Article 6 on the prohibition of slavery and forced labour, protection against retrospective criminal laws and repeated trials in Article 7, equality in Article 8, freedom of movement in Article 9, freedom of speech, assembly and association in Article 10, Article 11 on the freedom of religion, rights to education in Article 12 and Article 13 on the rights to property. As it is, the only articles that have no restrictions on it is Article 6 on the prohibition of slavery and forced labour, Article 7, 8 and 12. It is indeed frustrating in the legal and judicial sense that we are not allowed to mature in our fundamental liberties. Before, it was expressed in the provisions that such restrictions are subjected to judicial review but after some amendments in the 1960s, judges are only allowed to review on the procedural rather than the substantive elements brought forward by the provisions concerned. In Madhavan Nair v PP [1975] 2 MLJ 264: The Malaysian High Court had declared that the use of subjective words in article 10(2) like “necessary or expedient” rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision.

The judiciary has been appointed an important role of reconciling the conflicting demands between the fundamental liberties of the citizens and the responsibilities of the state whereby the court can remedy the violation of the rights of citizens through the writ of habeas corpus, mandamus, certiori and others. Tun Suffian in Re Datuk James Wong Kim Min [3] observed that “The laws affect the liberty of the subject and in the case of doubt or ambiguity; they should be interpreted against the authority and in favour of the citizen”. Raja Azlan Shah declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd [4] : “Unfettered discretion is a contradiction in terms… Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great powers and influence are exercised in accordance with law.” [5]

With regard to the above, it is vital that the legislators make serious amendments to the provision s of the constitution to relieve the citizens of the bondage of restriction that prevents the fulfilment of the ideology of constitutionalism.

Next, we look upon briefly on the Constitution of Singapore. The Constitution of Singapore is the grundnorm of the land. It stipulates the fundamental principles and framework for the Executive, the Legislative and the Judiciary — the three organs of the state. The constitution cannot be amended without the approval of more than two-thirds of the members of the parliament on the second and third readings.

The fundamental liberties of Sigapore citizens are provided in Part IV of the Constitution namely liberty of the person, prohibition of slavery and forced labour, protection against retrospective criminal laws and repeated trials, equal protection under the law, prohibition of banishment and freedom of movement, freedom of speech, assembly and association, freedom of religion and rights to education. [6]

It is noticed that the provisions on the fundamental liberties in the Constitution if Singapore has similarities to that of the Federal Constitution of Malaysia. We can see that especially in the provision for liberty of person wherein the citizen is granted liberty to life saves in accordance to law. Isn’t this an insult to the natural freedom blessed upon a human being? This implies that the government has every right to invoke restrictions on the liberty of a person as it deemed fits. Further restrictions on the fundamental rights of a Singapore citizen can be studied as in the table [7] below. Apparently, the citizens of Singapore enjoy very much limited freedom compared to their neighbour, Malaysia.

FUNDAMENTAL LIBERTIES

RESTRICTIONS

Liberties of a person

Penal Code

Internal security Act

Criminal Law [Temporary Provision] Act

Criminal proceduce Code Misuse of Drugs Act

** Death Penalty

No slavery and forced labour

Enlistment Act

Prisons Act Criminal Law [Temporary Provision] Act

No retrospective criminal laws and repeated trials

Equality

Policy on restricting marriages between Singapore citizens and work permit holders.

No banishment

Banishment Act

Immigration Act Internal Security Act

Passports Act

National Registration Act

Freedom of movement

Housing policy on ethnic eligibility

Freedom of speech, assembly and association

Sedition Act

Undesirable Publications Act

Newspaper and Printing Presses Act

Penal Code Internal Security Act

Public entertainment Act

Trade Unions Act

Societies Act

Mutual Benefit Organization Act

Rules and regulations on Speakers Corner

Right to lawyer

Restricted by economic status of an individual

Freedom of religion

Religious harmony Act

Right to education

Policies on admission of children to schools eg. sterilization and educational achievements of parents

The fundamental liberties of a human being are essential to the United States of America. It is the duty of the government to uphold the rights as conferred in the constitution. The citizens of America believe staunchly that the stipulation of rights in the constitution without restrictions is vital for the growth and maturity of a democratic society. The concept practiced in America is vastly different from that in Malaysia and Singapore as in the United States of America prioritize the rights of the citizen above the government compared to the Asian countries. Examples like freedom of communication, freedom of thoughts, freedom to obtain knowledge etc, shows the level of maturity that differs between the countries mentioned. Of course the [8] constitution of America does impose restrictions that is deem logically necessary to maintain the peace of the public. Another comparison that is clear cut is between the Internal Security Act 1960 of Malaysia and the Patriot Act 2001 of the United States of America. Below we could see the comparison between these two pieces of legislation. [9]

Name

Malaysia Internal Security Act 1960

USA Patriot Act 2001

Purpose

To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes

Applicability

Applicable to all persons. (Both citizens and non-citizens)

Applicable to alien (Non-US citizens only).

Judicial Review

Judicial review is restricted.

Section 8B and 8C severely limit the court’s ability to inquire into the legality of a detention except on questions of compliance with procedures.

Judicial review in terms of habeas corpus proceedings is provided by the Act.

Detention period

Section 73 allows the police to detain for 60 days any person who may act “in a manner prejudicial to the security of Malaysia.” The Home Minister may authorize indefinite detention renewable every two years ad infinitum.

The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision provided for the person to be detained for up to six months.

The Court ruled that Attorney General is authorized to detain aliens as long as removal is reasonably foreseeable.

Restricted conditions after released

Those released before the end of their detention period are subject to “imposed restricted conditions” for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country

Either deportation or let free. No restricted conditions after released.

Report to

Parliament

No equivalent provisions.

Every 6 months, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the

reporting period, the details of the detainees and the grounds for the detention.

Review

The Advisory Board shall review the detention every 2 years.

The Attorney General shall review the detention every 6 months

Sunset Provision

No equivalent provisions

The Act shall cease to have effect on Dec 31, 2005.

We see from this classic example of the differences between the liberties granted by two countries from the east and west respectively. Consequently, it is vital for Malaysia to make serious amendments to uphold the liberties of the citizen with respect to the idealism of constitutionalism.