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WORLD CONFERENCE ON CONSTITUTIONAL JUSTICE

INFLUENTIAL CONSTITUTIONAL JUSTICE -

ITS INFLUENCE OF SOCIETY AND ON DEVELOPING

A GLOBAL HUMAN RIGHTS JURISPRUDENCE

- A MALAYSIAN PERSPECTIVE -

Justice Dato’ Arifin Zakaria

Chief Judge of High Court in Malaya

Federal Court of Malaysia

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Introduction

[1] Malaysia is a federal constitutional monarchy headed by the Yang Di-Pertuan

Agong (H.R.H. the King) who acts on the advise of the Cabinet in the exercise of his

functions.1 The system of the Government in Malaysia is closely modelled on that of

Westminister Parliamentary system with its own peculiarities. Malaysia has a written

Constitution that spells out the function of the three branches of the Government

namely; the Executive, Legislative and Judiciary.

[2] Article 4 of the Federal Constitution (the Constitution) declares that the

Constitution is the supreme law of the land and any law passed after Merdeka Day

which is inconsistent with the Constitution shall, to the extent of such inconsistency, be

void.

[3] One instance where the constitutionality of an agreement entered into by the

federal government and an act of Parliament was challenged on this ground is the case

of The Government of the State of Kelantan v The Gover nment of the Federation

of Malaya and Tunku Abdul Rahman Putra Al-Haj. 2 There the High Court was asked

to declare that the Malaysia Agreement and the Malaysia Act to establish Malaysia were

null and void or alternatively were not binding on the State of Kelantan, one of the

component states in the Federation. On 9th July 1963, the Governments of the

Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore had

signed the Malaysian Agreement whereby Singapore, Sarawak and North Borneo would

federate with the existing states of the Federation of Malaya (including Kelantan) and

thereafter the Federation would be called Malaysia. The federal Parliament had then

passed the Malaysia Act (the bill form of which had been annexed to the Malaysia

Agreement) to amend Article 1(1) and (2) of the 1957 Constitution to provide, inter alia,

for the admission of the three new states and for the renaming of the federation as

Malaysia. The Act had received the Royal Assent on 26th August and was to come into

1 Article 43(1) of the Federal Constitution.

2 [1963] MLJ 355

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operation on 16th September, 1963. The Kelantan State Government which is one of the

state in the federation argued that the Act would abolish the “Federation of Malaya”

thereby violating the Federation of Malaya Agreement, 1957; that the proposed changes

needed the consent of each of the states of Malaya, including Kelantan and this had

been not obtained; that the Ruler of Kelantan should have been a party to the Malaysia

Agreement; that Constitutional convention called for consultation with Rulers of the

individual states as to substantial changes to be made to the Constitution; and that the

federal Parliament had no power to legislate for Kelantan in respect of any matter

regarding which that state had its own legislature. On 11th September, the Kelantan

State Government moved that (pending the ultimate disposal of their dispute) the court

should restrain the Government of the Federation of Malaya and the Prime Minister,

from carrying into effect any of the provisions of the Malaysia Act. The Chief Justice

heard the application and dismissed it at 5.00 p.m. on 14th September. His Lordship

held that:

[a] Parliament had power under Article 159 of the 1957 Constitution to enact the

Malaysia Act so as to amend Article 1(1) and (2) to admit the three new members

and this amendment did not require a two-thirds majority. The constitution which

formed an integral part of the Federation of Malaya Agreement, 1957 (to which

Kelantan was a party) did not require consultation with any state as a condition to

be fulfilled;

[b] the Malaysian Agreement was signed for the “Federation of Malaya” by the Prime

Minister, Deputy Prime Minister and four members of the Cabinet. This was in

compliance with Article 39 and 80(1) of the Constitution and there is nothing

whatsoever in the constitution requiring consultation with any State Government

or the Ruler of any state.

[4] In a little more than 24 hours from that historic judgment, Malaysia was born on

16th September 1963 and continues to this day.

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[5] The above case demonstrates the important role of the Federal Court within the

constitutional framework.

Federal Court as the interpreter of the Constitutio n

[6] In Malaysia we do not have a Constitutional Court as such but the Federal Court

plays a dual role; as the interpreter of the Constitution and also as the highest appellate

tribunal. Therefore, the Federal Court can be regarded as the constitutional court of the

country. Being so, it plays a pivotal role in the defence of fundamental liberties as

provided in Part ll of the Constitution.

[7] The judicial power of the Federation is contained in Part IX of the Constitution. In

the hierarchy of courts; we have the subordinate courts which comprise of the Sessions

Court and Magistrates Court and the superior courts which comprise of the High Court,

Court of Appeal and the Federal Court.

[8] The jurisdiction of the Federal Court is spelt out in Article 128. It has an exclusive

jurisdiction in regard to:

[a] any question whether law made by Parliament or by the Legislature of a

State is invalid on the ground that it makes provision with respect to a

matter with respect to which Parliament or, as the case maybe, the

Legislature of the State has no power to make laws; and

[b] disputes on any other question between States or between Federation

and any States.

[9] It also has jurisdiction to determine any question as to the effect of any provision

of the Constitution referred to it by the lower court and to remit the same to the other

court to be disposed off in accordance with the determination.

[10] The Federal Court is also conferred the advisory jurisdiction under Article 130 of

the Constitution under which the Yang Di-Pertuan Agong may refer to the Federal Court

any question as to the effect of any provision of the constitution which has arisen or

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appear to him likely to arise. His Majesty has done so only once in The Government of

Malaysia v. Government of the State of Kelantan 3. There the Kelantan Government

had entered into certain commercial arrangement with a company under which it

received a deposit. The Federal Government contended that this tantamount to

borrowing contrary to the Constitution. The Federal Court rejected the Federal

Government’s contention and held that the receipt of the deposit did not amount to

borrowing. 4

[11] In the case of Latifah Mat Zin v Rosmawati Sharibun & Anor 5 the Federal

Court pronounced that the interpretation of the Constitution is a matter for the Federal

Court and not the Syariah Court6. Since the Federal Court rules that the Syariah Court

has jurisdiction over the matter in dispute in that case the Syariah Court shall abide by

that ruling notwithstanding the decision of the Syariah Court in Jumaaton Awang v

Raja Hizaruddin Nong Chik 7 which decides to the contrary.

[12] As stated earlier the Federal Court also has appellate jurisdiction to determine

appeal from the Court of Appeal or High Court or a Judge thereof as provided in the

Courts of Judicature Act 1964.

[13] In determining the constitutionality or otherwise of a statute it is the provision of

our Constitution that matters, not a political theory by some thinkers. As Raja Azlan

Shah FJ (as His Royal Highness then was) quoting Frankfurter J said in Loh Kooi

3 [1968] 1 MLJ 129

4 Since then the definition of “borrow” has been amended by section 8 of the constitution (Amendment)(No. 2) Act

1971, effective from 24.3.1971.

5 [2007] 5 CLJ 253

6 The Syariah Court is the Islamic court having jurisdiction over Islamic matters.

7 [2004] 1 CLJ 100

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Choon v Government of Malaysia 8: “The ultimate touchstone of constitutionality is the

Constitution itself and not any general principle outside it.”

[14] His Lordship further said:

“Whatever may be said of other Constitution, they are ultimately of little assistance to us

because our Constitution now stands in its own right and it is in the end the wording of

our Constitution itself that is to be interpreted and applied, and this wording “can never

be overridden by the extraneous principles of other Constitution”. Each country frames

its constitution according to its genius and for the good of its own society. We look at

other Constitution to learn from their experiences, and from a desire to see how their

progress and well-being is ensured by their fundamental law.”

Separation of powers

[15] It is a common believe that the doctrine of separation of powers has always been

part and parcel of our constitutional fabric. This has come into question since Article 121

of the Constitution was amended in 1988. Since the amendment to Article 121 the

constitutional position of the Judiciary is a matter of controversy. Therefore, permit me

to say a few words on this.

[16] Article 121 prior to the amendment reads as follows:

“Subject to clause (2) the judicial power of the Federation shall be vested in the

two High Courts of co-ordinate jurisdiction and status namely –

(a) One in the States of Malaya, which shall have been known as the High

Court in Malaya and shall have its principal registry at such place in the

States of Malaya as the Yang Di-Pertuan Agong may determine; and

8 [1975] 1 LNS 90

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(b) One in the States of Sabah and Sarawak, which shall be known as the High

Court in Sabah and Sarawak and shall have its principal registry at such

place in the States of Sabah and Sarawak as the Yang Di-Pertuan Agong

may determine;

and in such inferior courts as may be provided by federal law; and the High

Courts and inferior courts shall have such jurisdiction and powers as may be

conferred by or under federal law.”

[17] Article 121 after the amendment reads as follows –

“There shall be two High Courts of co-ordinate jurisdiction and status namely –

(a) One in the States of Malaya, which shall have been known as the High

Court in Malaya and shall have its principal registry in Kuala Lumpur; and

(b) One in the States of Sabah and Sarawak, which shall be known as the High

Court in Sabah and Sarawak and shall have its principal registry at such

place in the States of Sabah and Sarawak as the Yang Di-Pertuan Agong

may determine;

and such inferior courts as may be provided by federal law; and the High Courts

and inferior courts shall have such jurisdiction and powers as may be conferred

by or under federal law.”

[18] In October 2007, the Federal Court in the case of Public Prosecutor v Kok Wah

Kuan 9 held inter alia that the doctrine of separation of powers “is not definite and

absolute” in the Constitution. This landmark decision is said to have confirmed the fears

expressed in 1988 when Article 121 was amended to remove the judicial power from 9 [2007] 6 CLJ 341

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the courts and the dangers it posed to the system of checks and balances in

governmental power. It is contended by some quarters that under the system of

constitutional government, the courts are always seen as the protector of the

Constitution and will imply into the Constitution the basic fabric of democratic values

including the doctrine of separation of powers which distinguishes a democracy from a

dictatorship.10

[19] Under the new Article 121 it would appear that the judicial power is no longer

vested in the Judiciary as the jurisdiction and powers of the courts are limited to those

conferred by or under the federal law. If this is so, then the doctrine of separation of

powers no longer exists within our Constitution. There are strong arguments that the

amendment should be given a restricted interpretation in order to preserve the

constitutional order.11

[20] This issue came to be considered by the Federal Court in PP v Kok Wah Kuan

(supra). In that case the accused who was 12 years and 9 months old at the time of the

commission of the offence was charged in the High Court for the offence of murder

punishable under section 302 of the Penal Code. He was convicted and ordered to be

detained during the pleasure of the Yang Di-Pertuan Agong pursuant to section 97(2) of

the Child Act 2001. Upon his appeal, the Court of Appeal upheld the conviction but set

aside the sentence imposed on him and released him from custody on the sole ground

that section 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed

to the Federal Court.

[21] The Court of Appeal held that the doctrine of separation of powers is very much

an integral part of the Constitution and any post-Merdeka law that violates this doctrine

must be struck down as being unconstitutional.

10

Article on Federal Court decision a blow to democracy by Dato’ Param Cumaraswamy

11 See Law, Government and the Constitution in Malaysia by Andrew Harding at page 134.

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[22] The Court of Appeal applying what it considered settled principles went on to

hold that section 97(2) of the Child Act had contravened the doctrine of separation of

powers by consigning to the Executive the judicial power to determine the measure of

sentence to be served by the accused. By virtue of Article 39 of the Constitution, the

executive power of the Federation vests in the Yang Di-Pertuan Agong who, in

accordance with Article 40 of the Constitution, must act in accordance with the advice

given by the Cabinet.

[23] On appeal the majority of the Federal Court Judges rejected the finding that the

amendment to Article 121 was of no effect, ruling that after the amendment, there is no

longer any declaration in the Constitution that the judicial power of the Federation vests

in the two High Courts. It was therefore no longer necessary to interpret the term

“judicial power” and all we now need to do is to look at the federal law to know the

jurisdiction and powers of the two High Courts. On that premise, section 97(2) was held

not inconsistent with any provision of the Constitution.

[24] Alluding to the Court of Appeal’s finding that section 97(2) had violated the

doctrine of separation of powers, Abdul Hamid Mohamad, PCA (who later became the

Chief Justice of Malaysia) dismissed the doctrine as a mere political doctrine that is not

absolute. Although admitting that the doctrine had influenced the framers of the

Constitution, the learned Judge was emphatic that it was not a provision of the

Malaysian Constitution and no provision of law can be struck down as being

unconstitutional merely because it offended that doctrine.

[25] Richard Malanjum, CJ (SS) although agreeing with the majority as to the

outcome of the appeal but do not seem to agree with the view of the majority that with

the amendment of Article 121 the court in Malaysia can only function in accordance with

what has been assigned to them by the federal laws.

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[26] The learned Judge firmly rejected the view that the amendment had the effect of

removing the doctrines of the separation of powers and the independence of the

Judiciary as basic features of the Constitution.

[27] This case shows a divergence in approach between the majority and the minority

with regard to constitutional interpretation even though their decision to dismiss the

appeal was unanimous. Thus the issue is far from settled.

Human Rights

[28] The fundamental rights in Malaysia are enshrined in Part ll of the Federal

Constitution entitled “Fundamental Liberties”.12

[29] Any infringement of these rights exposes the infringer to proceedings in court.

However, Parliament under Article 149 may in certain circumstances pass laws

inconsistent with Article 5, 9 or 10. And under Article 150 the Yang Di-Pertuan Agong

may, subject to certain exceptions set out in Article 150, pass any law inconsistent with

the provisions of the Constitution including provisions relating to fundamental liberties.13

[30] Article 150 has come to be considered by the Federal Court in Eng Keock

Cheng v. Public Prosecutor 14 and then by the Privy Council in Stephen Kalong

Ningkan v. Government of Malaysia 15 which was an appeal from the Federal Court.

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Article 5 to 13 of the Federal Constitution.

13 See An Introduction to The Constitution of Malaysia by Tan Sri Mohamed Suffian Bin Hashim, Judge of the

Federal Court, Malaysia – Chapter 13 Fundamental Liberties.

14 [1966] 1 MLJ 18

15 [1968] 2 MLJ 238

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[31] In the case of Eng Keock Cheng v. Public Prosecutor , the Yang Di-Pertuan

Agong proclaimed under Article 150 the existence of a grave emergency threatening the

security of the Federation. Parliament then passed the Emergency (Essential Powers)

Act 1964, empowering the Yang Di-Pertuan Agong to make regulations to secure public

safety. His Majesty made the Emergency (Criminal Trials) Regulation 1964; regulation 4

& 5 provide that where a person is charged with any offence and the Public Prosecutor

certifies in writing that the case is a proper one for trial under these regulations, the

case should not be tried by a jury or by a Judge with the aid of assessors as required by

the Criminal Code, but shall be tried by a Judge without the aid of assessors and that

the case shall be tried without the formality of a preliminary enquiry in the magistrate’s

court. Eng Keock Cheng was tried in accordance with the procedure prescribed by the

regulations on a charge under the ISA 1960, and he was sentenced to death. On appeal

it was argued that the authority under which these regulations were made could not

authorize regulations inconsistent with the constitution and these regulations did infringe

Article 8 which declares that all persons are equal before the law and entitled the

protection of the law. The Federal Court rejected the argument and held that the true

effect of Article 150 was that subject to certain exceptions set out therein, Parliament

had, during an emergency, power to legislate on any subject and to any effect, even if

inconsistencies with Article of the constitution (including the provisions for fundamental

liberties) were involved and that necessarily included authority to delegate part of that

power to legislate to some other authority, and that therefore the Emergency (Essential

Powers) Act 1964, was not beyond the power of Parliament to enact, and that he

Emergency (Criminal Trials) Regulations 1964 made under the Act were valid.

[32] In Stephen Kalong Ningkan v Government of Malaysia (supra), the Privy

Council, considering the meaning of “emergency” in Article 150(1), stressed the breadth

of the concept:

“It is not confined to unlawful use or threat of force in any of its manifestations … the

natural meaning of the word itself is capable of covering a very wide range of situations

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and occurrences, including such diverse elements as wars, famines, earthquakes,

floods, epidemics and the collapse of civil government.”16

[33] In that case Dato Ningkan won his case when the court declared his dismissal by

the Governor null and void. Then His Majesty on 14 September 1966, proclaimed a

state of emergency in Sarawak and Parliament on 19 September 1966, passed the

Emergency (Federal Constitution and Constitution of Sarawak) Act 1966, and under

powers conferred by the Act the Governor summoned the Council Negeri (as the

Sarawak State Legislative Assembly is called) which met and passed a vote of no

confidence in Dato’ Ningkan; he was then dismissed by the Governor on the following

day on 24 September 1966. Dato’ Ningkan with leave brought proceedings in the

Federal Court for a declaration that the Act was null and void. The Federal Court gave

judgment against him, as did the Privy Council on appeal.

[34] The rights under Article 10(1)(c) of the Constitution came to be considered by the

Federal Court in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 17. In

the course of striking down an anti-hopping provision in the Kelantan Constitution as

being contrary to freedom of association under Article 10(1)(c) of the Constitution, the

Supreme Court accepted the liberal principles of constitutional interpretation and held

that any state action which makes the exercise of human rights “ineffective or illusory”

would be unconstitutional. This is an important decision in so far as Article 10(1)(c ) is

concerned.

Habeas Corpus

[35] Article 5(1) of the Constitution provides that no person shall be deprived of his life

or personal liberty save in accordance with law. Article 5(2) provides that “where

16

See Law, Government and the Constitution in Malaysia by Andrew Harding.

17 [1992] 2 CLJ 1125

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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”.

[36] The procedure for habeas corpus in Malaysia is contained in Part VIII Special

Proceedings Chapter XXXVI of the Criminal Procedure Code. Section 365 gives the

High Court powers to make certain orders whenever it thinks fit regarding to the

application of habeas corpus. Appeal from the decision of the High Court lies to the

Federal Court.18

[37] The procedure of habeas corpus is usually effective in cases whereby a statute

permit detention without a trial, for example, the Emergency (Public Order and

Prevention of Crime) Ordinance 1969 and the Internal Security Act 1960 if it can be

shown that there exit procedural non-compliance in the way the detention was ordered.

(See Muhammad Jailani Kasim v Timbalan Menteri Keselamat an Dalam Negeri,

Malaysia [2006] 4 CLJ 687, Timbalan Menteri Keselam atan Dalam Negeri, Malaysia

v Ong Beng Chuan [2006] 4 CLJ 703, Timbalan Menteri Keselamatan Dalam

Negeri, Malaysia v Arasa Kumaran [2006] 4 CLJ 847, Abdul Razak Baharudin v

Ketua Polis Negara [2005] 4 CLJ 445 )

[38] In the Federal Court case of Kumaran Suppiah v Dato’ Noh Hj Omar &

Another, 19 the appellant was ordered to be detained for a period of two years with

effect from 26.12.2004 pursuant to a detention order made under s. 4(1) of the

Emergency (Public Order and Prevention of Crime) Ordinance 1969 on 17.12.2004. He

filed a writ of habeas corpus in the High Court to secure his release and the subsequent

refusal of the application resulted in this appeal by him. The only issue for determination

was whether a detention order made under s. 4(1) of the Ordinance could be made to

take effect on a date subsequent to the date on which it was made.

18

Section 374 of the Criminal Procedure Code.

19 [2006] 4 CLJ 675

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[39] Augustine Paul, FCJ in his grounds of judgment held that “the decision to detain

a person for a specified period under s. (1) of the Ordinance is, without any doubt, a

matter dealing with the discretion of the Minister and cannot be subject to judicial review

pursuant to s. 7C(1) of the Ordinance. Similarly, the making of a detention order with a

delayed date of commencement is again a decision made by the Minister in the

exercise of his discretion and thus cannot be subject to judicial review. However, the

need to explain a delay in the date of commencement of a detention order is a

constituent part of s. 4(1) of the Ordinance. It is a condition precedent to the making of a

detention order in such a situation and there must, therefore, be in existence an

explanation in such cases before the making of the detention order. It must be observed

that the sufficiency of the explanation cannot be the subject of judicial inquiry as it is a

matter within the discretion of the Minister. That, however, cannot be said of the

availability of the explanation itself at the time of the making of the detention order. As

the explanation is not the decision itself but only a part of the decision-making process,

it is a matter of procedure and a very significant one at that. Since it is a condition

precedent to the making of the decision by the Minister to have a delayed date of

commencement of the detention order, it is a procedural requirement governing such

decision. The question of whether this requirement has been complied with is thus

subject to judicial review and since no explanation had been offered in this case for the

delay in the commencement of the detention order, this amounted to non-compliance

with a procedural requirement governing the making of the detention order. The order

was, therefore, invalid.”

[40] In the case of Manoharan a/l Malayalam v Minister of Internal Secu rity &

Another and 4 other appeal , the Federal Court ruled that their detention under the

Internal Security Act 1960 (ISA) is lawful. The five men being members of HINDRAF20

were detained on 13 December 2007 for their involvement in organizing a street protest

in Kuala Lumpur on 25 November 2007 for making inflammatory remarks against the

20

Hindu Rights Action Force – it is a coalition of 30 Hindu Non-Governmental organizations committed to the

preservation of Hindu Community rights and heritage in a multiracial Malaysia.

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government. They appealed to the Federal Court after they failed to secure an order

from the High Court for their release from what they claimed as unlawful detention. The

Federal Court panel presided by Alauddin Mohd Sheriff, CJ (M) who presided, together

with Arifin Zakaria and Hashim Yusoff, FCJJ unanimously upheld the decision of the

High Court in dismissing the 5 habeas corpus applications. Alauddin Mohd Sheriff, CJ

(M) in his judgment said that the High Court had carefully evaluated the respondents’

affidavit, including the affidavit by the prime minister which claimed that the HINDRAF

leaders were attempting to gain international recognition for their struggle by getting

support from a terrorist organization when it ruled that their detention was valid and in

accordance with the law. The Federal Court ruled that section 8 of the ISA is

independent of section 73 of the Act on the premise that section 8 unequivocably gives

the power to the Minister to make the detention order without any investigation under

section 73. Therefore, the Court held that that there was no procedural non-compliance

committed by the Minister.

[41] The Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the

Internal Security Act 1960 are the two legislations remaining on the statute book which

strike at the fundamental liberties as enshrined in Part ll of the Constitution. Much

criticism had been levelled against these two pieces of legislations, but the government

has continuously defended its stand on the premise that they are essential to ensure

peace and security of the country.

[42] In a multiracial country like Malaysia, the government has to strike a balance

between the freedom of its citizen and the need to ensure that racial harmony is

preserved at all time. It is indeed a challenging task. In this context it is appropriate to

quote the words of Tun Dato’ Seri Abdul Hamid Omar (former Chief Justice of Malaysia)

expressing his view on the responsibility of the court in Malaysia:

“… there is no higher duty or more solemn responsibility upon the court than that of

ensuring that protection given by the Constitution is used for the benefit of every citizen

irrespective of race, creed or status. The role of judiciary in our country may be said to

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be somewhat different from that a developed nation. In our case the survival of

democracy and the rule of law cannot exist in abstract theory in a vacuum. They depend

on the access to economic development and growth of the society as much as the

protection of individual rights. A problem faced by the judiciary in developing societies

therefore is the need to harmonize and balance the difference between social control

and social justice. For the successful implementation of social welfare programmes for

the benefit of the hitherto underprivileged under foreign masters, the State generally

assumes enormous powers for the regulation of economic and other activities of private

individuals and groups in the name of collective interests of society. The vesting of vast

discretionary powers in the executive may not be in the best traditions of what is known

as democracy in the Western concept. The system may not be the liking of judges

trained in the Western school of thought but they must appreciate their limitation. They

are only guardians of the Constitution in interpreting executive acts and the people are

the masters of the Constitution.”21

The Human Right Commission

[43] The Human Rights Commission of Malaysia (SUHAKAM) was established on

3.4.2000 by Parliament under the Human Rights Commission of Malaysia Act 1999 (Act

597) (“the HR Act”). SUHAKAM is headed by a chairman & 12 other members who are

appointed by the Yang Di-Pertuan Agong on the recommendation of the Prime Minister.

The initiative to set up SUHAKAM began with Malaysia’s active participation in the

United Nations Commission on Human Rights (UNHCR) in 1993 – 1995 when it was

elected as a member of the Commission by the United Nations Economic and Social

Council. Malaysia was elected to serve a second term in the UNHCR from 1996 – 1998

and its third term from 2001 – 2003.22

21

See Off The Bench by Tun Dato’ Seri Abdul Hamid Omar at page 342.

22 www.suhakam.org.my

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[44] Besides that, the international attention on human rights as a result of the

success of the 1993 World Conference on Human Rights in Vienna where governments

including Malaysia, agreed that human rights are universal and indivisible and they

recognized the importance of setting up national human rights institutions.

[45] The changing political climate in Malaysia with a more politically conscious

electorate and dynamic civil society also influenced the government to set up

SUHAKAM.

[46] The Human Rights Commission of Malaysia Act 1999 has tremendous impact in

Malaysia in two important respects. It has imported the international law of human rights

enshrined in the Universal Declaration of Human Rights 1948 (“the UDHR”) into our

domestic constitutional law23. This is due to s. 4(4) of the HR Act 1999 which reads as

follows:

“For the purpose of this Act, regard shall be had to the Universal Declaration of Human

Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.”

This means that whatever rights and liberties not mentioned in Part ll but referred to in

the Universal Declaration of Human Rights 1948 must be considered provided that

there is no conflict with the Constitution.

[47] Under s. 2 of the HR Act 1999, “human rights” refers to fundamental liberties as

enshrined in Part ll of the Federal Constitution24.

23

See Does The Law of Human Rights Pervade All Malaysian Law in View of Part ll of the Federal Constitution by B.

Lobo [2007] 6 CLJ i

24 See Does The Law of Human Rights Pervade All Malaysian Law in View of Part ll of the Federal Constitution by B.

Lobo [2007] 6 CLJ i

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Therefore vide s. 4(4) of the HR Act 1999, Parliament has made the provisions of the

UDHR 1948 as supplemental (and not in derogation) to Part ll of the Federal

Constitution. This being so, the provisions of the HR Act 1999 are an extension or an

appendage to Part ll of the Constitution. Therefore there is no doubt that the HR Act

1999 has Constitutional status.

[48] In view of the specific reference to Part ll of the Federal Constitution, relating to

fundamental liberties, the provisions of the HR Act 1999 have been put on the same

pedestal as Part ll of the Federal Constitution. This will include the provisions of the

UDHR 1948. The UDHR 1948 has therefore been incorporated into domestic law in

Malaysia – on par with the supreme law. It is the fundamental rights of persons and

citizens in Malaysia25.

[49] Section 4 of the Human Rights Commission of Malaysia Act 1999 set out the

functions of SUHAKAM as follows:

[a] to promote awareness of and provide education relating to human rights;

[b] to advise and assist Government in formulating legislation and procedures

and recommend the necessary measures to be taken;

[c] to recommend to the Government with regard to subscription or accession

of treaties and other international instruments in the field of human rights;

and

[d] to inquire into complaints regarding infringements of human rights.

[50] The Act provides SUHAKAM with powers to enable it to discharge its function

effectively. Under section 4(2), the Commission is empowered to do the following:

[a] to undertake research by conducting programs, seminars and workshops

and to disseminate and distribute the results of such research;

25

See Does The Law of Human Rights Pervade All Malaysian Law in View of Part ll of the Federal Constitution by B.

Lobo [2007] 6 CLJ i

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[b] to advise the Government and/or relevant authorities of complaints against

them and to recommend appropriate measures to be taken

[c] to study and verify any infringement of human rights;

[d] to visit places of detention in accordance with procedures as prescribed by

laws relating to the places of detention and to make necessary

recommendations;

[e] to issue public statements on human rights as and when necessary; and

[f] to undertake appropriate activities as are necessary.

[51] The function of inquiring into complaints about human rights infringement is

however subject to the conditions imposed by section 12 of the Act. Section 12

empowers SUHAKAM to act on its own motion to inquire into allegations of infringement

of human rights, in addition to acting on complaints submitted to it. SUHAKAM however,

may not investigate complaints which are the subject matter of proceedings pending in

a court of law or which have been finally decided by any court. Such investigations have

to cease if the matter being investigated is brought before the courts. Thus the Court

continues to play an important role in the protection of human rights notwithstanding the

setting up of SUHAKAM. It is important for both SUHAKAM and the court to

complement each other in shaping the future development of human rights law in

Malaysia.

International Convention

[52] On the international level, Malaysian Government is currently party to six

instruments, (five of which have been ratified) as follows26:

[a] Supplementary Convention on the Abolition of Slavery, the Slave Trade

and Institutions and Practices Similar to Slavery. Adopted in Geneva on

September 7, 1956, ratified on November 18, 1957; 26

See Report on Human Rights in Malaysia by Prof Johan Saravanamuttu dated 24.11.2008.

20

[b] Convention on the Prevention and Punishment of the Crime of Genocide.

Adopted by the General Assembly of the United Nations on December 9,

1948, ratified on December 20, 1994;

[c] Convention on the Elimination of all Forms of Discrimination against

Women (with reservations). Adopted by the General Assembly of the

United Nations on December 18, 1979, ratified on July 5, 1995;

[d] Convention on the Rights of the Child (with several reservations, in

particular to Article 13 which provides the right to freedom of expression).

Adopted by the General Assembly of the United Nations on November 20,

1989, ratified on February 17, 1995; and

[e] Convention on the Nationality of Married Women (with reservations).

Adopted at New York on February 1957, ratified on February 1959.

[53] Ratification of these conventions marks an explicit acceptance by Malaysia that it

does share with the global community common standards and values on human rights

regardless of cultural and geographical origins. Furthermore, following upon the 1993

Vienna Conference on Human Rights, Malaysia advanced the principle of the

indivisibility and interdependence of all human rights thereby also purportedly supported

the Vienna declaration that:

“All human rights are universal, indivisible and interdependent and interrelated. The

international community must treat human rights globally in a fair and equal manner, on

the same footing, and with the same emphasis.”27

27

See Report on Human Rights in Malaysia by Prof Johan Saravanamuttu dated 24.11.2008.

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Conclusion

The Federal Court as the final court of appeal has a crucial role to play in the protection

of human rights as embodied in our Constitution. In this context I am proud to say that

the Court has played its part well in this important role. Throughout the years, it has

striven to maintain the rule of law sometime in difficult circumstances.

Chief Judge of High Court in Malaya

Chief’s Judge Chambers

Federal Court of Malaysia

Istana Kehakiman

Precint 3

62506 Putrajaya

Malaysia.

Dated : 12 December 2008