Article 149

Legislation against subversion, action prejudicial to public order, etc.

● Article 149 of the Federal Constitution is special power given to the Parliament in order
to make law which can be used to fight subversion and inaction against public order
● it also deals with laws which can be used against people who are making chaos and
people who are involved in organized violence
● Article 151 relates to Article 149 and 150 because it deals with restrictions on preventive
detention
● The first category of special powers are contained under Article 149 and the second
category of special powers are stated in Article 150.
● Both of these provisions have to be read independently because they are separate and
distinct provisions
● Both articles however allows law relating to preventive detention to be made
● In other words law which allows a person to be detained without giving the person a fair
trial can be made under Article 149 and 150
● so we can have law which provides for productive retention mean under 149 and we can
have laws which provide for private detention mean and article 150 so preventive
detention loss can only be made either based on article 159 or article 150 that is why
article 151 is stated in part 11. on the article 151 a person who is being detained without
trial have certain rights and these rights can be claimed by a person who is being detained
validly under preventive detention law
● why it is stated in article in part 11 and why it is not stated together with article 5 clause 2
the reason being the law which allows the authority to return a person without trial can be
made as i mentioned earlier either based on article 149 or article 150.
● firstly we're going to examine article 149 as we mentioned earlier article 149 is one of the
special provisions in the constitution because it gives special power to the parliament to
make laws which can be inconsistent with the federal constitution
● in order to understand the extent and the power given by article 149 we have to
understand the implication of article 149 plus one article 149.1 provides that if an act of
parliament decides that action has been taken or threatened by any substantial body of
persons whether inside outside the federation a to cause or to cause substantial number of
citizens to fear organized violence against persons or property or be to accept this
affection against young tanago or any government in the federation or c to promote
feelings of illegal and hostility between different races or other classes of the population
 SPECIAL POWERS: ART 149, 150, 151
Art 149: Law made by Parliament to overcome illegal activities
Art 150: Emergency Power
Art 151: Pertaining to Protection given to a person detained under prevention.

ARTICLE 149:
In order to exercise emergency power to make emergency law, Parliament must expressly have
preamble mentioning emergency, if not 🡪 it is an ordinary law

3 Types of Law Making Process:

1. Ordinary Act (Art 66) – consent must be obtain
2. Special Power (Art 149) – can be inconsistent with certain provision of FC. Generally,
cannot (Art 4)
3. Emergency Power (Art 150) – The strongest status of legislation. It can be made by
Federal Authorities even though inconsistent with FC, SOP and Federalism.

⮚ How to determine it is Special Law?

- “….. Act of Parliament recites”
- Must refer to preambles “Whereas”

1. Only parliament has power to make law under Art 149, not YDPA.
2. Parliament can make law on it based on those 6 grounds Art 149 (1) (a-f)
3. Parliament must express clearly one or more grounds in making the law
4. This law can be inconsistent with four fundamental rights (Art 5, 9, 10, 13)
5. End of termination of law made under Art 149 (2)
Sunset clause 🡪 certain provisions valid for certain period only, in order to extend it, a
new resolution in parliament must be made.
- During British, they read English Regulation Ordinance, until 1960. Later,
Parliament passed a new law made under Art 149 which provide
prevention detention, named ISA 1960. It continued until 2012 and later
replaced by SOSMA 2012.
- SOSMA 2012 made for 5 years only 🡪 police have power to detain 28
days
- SOSMA 2012 was valid until 2017, unless parliament decide to extend it
- After 5 years, the clause becomes sunset.
- In December 2011, Parliament decide to annul Emergency Act. Now, no
more Emergency Act.
 6. Empowers parliament to make preventive detention but must comply with Art
151
- Eg : ISA, Dangerous Drugs Preventive Measures Act, Dangerous Drugs
Forfeiture Property Act, SOSMA, POCA, POTA
- EPOPCO 1969 by YDPA provide prevention detention but not all of
criminal activities – normally decided using this ordinance but now, no
more.

Preventive detention
1. Ketua Polis Negara v Gan Bee Huat
- Forfeiture of property is valid under Art 149
2. Theresa Lim Chin Chin (1988)
- Gov. decided to detain under ISA
3. Mohd Ezam Mohd Nor (2002)
- ISA not confined to communist acitivism alone,

Grounds to detain a person (look at habeas corpus)

1. Tan Sri Raja Khalid
- Cannot use ISA 🡪 more suitable if PC/CPC
2. Joshua Jamaluddin Osman
- Activities of distant followers confined to his own religion
- Cannot use ISA 🡪 SOSMA Art 5
3. Khairuddin v Matthias
- When the detainee being charged in ct. of law 🡪 he is entitled to bail
- Offence is under Penal Code
- High ct. 🡪 If arrested under SOSMA, charged under Security Act 🡪 refer to part 6
& 6A of PC
4. Yazid Syafaat
- Was detained under SOSMA
- Ct held 🡪 SOSMA not cover activities outside Malaysia

Gov made new law:

1. SOSMA – replacing ISA- process of arrested force unit offences (Part 6)

2. POCA 1959 (Prevention of Crime Act) – upgrade from ordinary law to Special Law. It
focus more on criminal activities- no more EPOPCO
3. POTA 2015 (Prevention of Terrorism Act) (Part 6A) – provide prevention detention on
Political Activities.
4. DD(SPM)A 1955 – in 60 days, Minister takes up for 2 years.
5. DD (FOP) A – To forfeit property acquired by drug business – who accumulate wealth
with compensation. Went to the Minister.
ARTICLE 150
2 types of proclamation emergency:
1. Proclamation of Emergency if the YDPA is satisfied.
- Literally : urgency or situation which wants to have a drastic action
- Art 150 (1) 🡪 YDPA has power
- comprehensive definition is in the case of SKN
Case: Stephen Kalong Ningkan (1969 2MLJ)

- High ct. held that the dismissal is unconstitutional 🡪 should 2/3 major
- Thus, high ct. acquitted
- But, Gov. declared state of emergency🡪 Sarawak crisis
- Stephen decided to challenge the proclamation of emergency
- Because the actual purpose of this proclamation is to empower the gov. to
summon state assembly to have vote of no confidence
- The case is up to Privy Council
- Pvy Council referred the definition of emergency from case :

Case: Bhagath Singh v King Emperor 1931

“State emergency does not permit of any exact definition. It connotes a state of matters calling
for drastic action. The concept not necessarily limited to actual violence, or threat of
violence, or breach of the peace, but also includes the situation of threatening security or
economic life. It covers very wide situation, for example: War, earthquakes, flood,
epidemic, etc”
- This case justifies the government to use this definition and declare state of
emergency

2. YDPA proclaim emergency is acting on advice of PM/own discretion/ based on

Government parliament.

Case: Teh Cheng Poh

- Act of YDPA is act of Govt (Art 40) so subject to judicial review due to official
capacity.
- Followed by SKN cases whereby YDPA is a sole Judge who has the power to
proclaim.
- Because of this case, there is amendment to Art 150 and clause 8(OUSTER
CLAUSE) not to bring the court to strengthen power of YDPA & Govt.
Who has power to declare emergency?
▪ Art 150 (1) : YDPA
 ▪ On 1984, Dato’ Mahathir wanted to amend Art 150, to replace ‘YDPA’ with ‘PM’
because Teh Cheng Poh’s decision 🡪 Pvy council decided that YDPA act on advice of
PM, the power given to federal gov.
Whether YDPA act on advice or his personal discretion?

3 Stephen Kalong Ningkan 🡪 power given to YDPA

🡪 YDPA has personal discretion

If YDPA satisfied, whether subjected to judicial review/not ?

▪ The courts silent about this issue
▪ Pvy Council decided in Teh Cheng Poh :

[YDPA act on advice of🡪 federal gov is subjected to 🡪 judicial review]

Thus, based on Teh Cheng Poh :

- Added clause (8) in Art 150 🡪 which to oust the ct. of law from hearing case
brought by a person regarding emergency.
- At the same time, absolute power of gov. over emergency
- Satisfaction of YDPA cannot be questioned in ct. of law
- YDPA’s power 🡪 not subjected to judicial review

▪ Because, at first YDPA act on advice of gov, and gov. is subjected to judicial review, thus
to avoid judicial review, parliament amend certain provision
If YDPA act on advice, when he can act on his personal satisfaction?
▪ Depends on situation
▪ Eg : Dissolution of parliament during election 🡪 there is no elected gov.
▪ Gov. at that time is just known as caretaker gov. 🡪 caretaking of country, but not to
decide on major decision or issues, eg : emergency

Case: PP v Mohd Amin Mohd Razali

- Agong act based on his own discretion if there is no gov.
- Agong can used his power under Art 39 (Indepedently)
- Executive power of federation, be vested on YDPA
When YDPA can proclaim emergency?
▪ Clause (1) – Proclamation can be made if there is grave emergency which threatens:
i. Security
ii. Public order
iii. Economic life
iv. Etc
 ▪ Examples :
1964 – Confrontation with Indonesia
1966 – Sarawak as result of political crisis
1969 – Racial riot (13 May)
1977 – Political crisis in Kelantan
YDPA no need to wait for actual occurrence to proclaim emergency?

▪ Clause (2) 🡪 there must be an imminent dangers of occurrence of such event

▪ Imminent danger 🡪is a question of fact
▪ Gov. will depend on information from special branch
YDPA can declare multiple proclamation of emergency?

▪ Clause (2A) 🡪 empowers YDPA to proclaim new proclamation of emergency

▪ Example : Assuming majority of members of parliament decided to annul
▪ Thus, Art 150 empowers parliament to annul emergency
▪ (X necessary from opposition, can be also from ruling party)
▪ Revoke 🡪 YDPA
▪ Annul 🡪 parliament
▪ There must be an actual sitting in house 🡪 then YDPA has no power to make law

Teh Cheng Poh (1979 1 MLJ)

- Was charged under ISA sect 57
- Country at that time before Nov 2011, considered as security area because of emergency
- Thus, if a person in possession in firearms, he can be charged under ISA, not necessarily
be charged under Firearms Act
- The power to charge belong to AG whether under security law or other law
- He was tried under special law 🡪 ESCAR
- 1969 – emergency, parliament not in sitting until 1971
- 1975 – Agong made new subsidiary law, parliament already in session
- Whether Agong has power to make emergency law when parliament already in session
- Federal ct : what Agong cannot do is to make law 🡪 primary statute (Ordinance)
- Thus, Agong can make law subsidiary law 🡪 regulations
- Pvy Council : cannot look at label of law, but look at substance of law
- Ordinance just like similar to Regulations
- Thus, Agong has no power to make law primary or subsidiary when gov. is on session
- Thus, ESCAR 🡪 unconstitutional
- New proclamation impliedly revoked earlier proclamation
Agong has no power to make law when parliament already in session
Art 150 (9): what Agong cannot do is when both the houses of parliament have actual sitting
only (when all members respectively assemble)
Power of YDPA (Art 150)
▪ Agong has power :
 - To proclaim emergency
- To multiple proclamation
- To make law, and the law is named as emergency ordinance
- To revoke proclamation of emergency
- To revoke the ordinance
▪ The power of YDPA = parliament’s power
What YDPA cannot do? 🡪 Art 150 (6A)

- Malay Custom - Native law

- Native custom - Citizenship
- Islamic law - Religion
- Language

Parliament/PM
▪ No power to proclaim emergency

Parliament’s power 🡪Art 150(5)

▪ Parliament’s power can make law on subject matter under federal list & state list
▪ Read together with clause (6A) restriction, similar like YDPA’s power
▪ Procedural requirements can be put aside :
- 2/3 majority is not applicable
- Consent of conference of rulers is not applicable

Case: Eng Keock Cheng v PP

- Trial before single charge
- During emergency, charged for capital punishment.
- YDPA has power to make subsidiary law, namely Criminal Trial Regulation –
must be conducted without several juries.
- Argued unconstitutional, contrary to Art 8 of FC🡪 discrimination.
- Held 🡪 emergency law can be inconsistent with any written law including FC.

Federal executive power during emergency is shifted 🡪 federal gov.

▪ If emergency in particular state, federal gov. can appoint federal officer to administer the
state
Example : the chief executive gov. is appointed 🡪 director of emergency for Kelantan
What the role of parliament in relation to proclamation of emergency & ordinance made
by YDPA ?
▪ Refer to clause (3)
▪ Proclamation & ordinance made by YDPA :
- They must be laid (bentang) in both houses
- Not subject to affirmative resolution
- But, if there is negative distribution, majority of members of both houses can
decide to reject/annul the proclamation 🡪 but, must be tabled first
 - Parliamentary control over executive power

Dato’ Seri Anwar Ibrahim v PP

- Instead on sodomy, he was also charged under emergency essential power
ordinance for abusing powers
- Validity of the ordinance 🡪 whether the ordinance is still exist, or has been
annulled by parliament
- However, the ordinance was annulled by table in Dewan rakyat only, not yet be
annulled by Dewan Negara
- Ct. held 🡪 the ordinance still exist 🡪 the charge is constitutional

How to end emergency? 🡪 Art 150 (3)

▪ Proclamation can be terminated through two ways :
i. Revocation by YDPA
ii. Annulment by parliament by both houses.
+ Judicial Review: YDPA act on advice – Govt decide – considered as official so
justifiable.
What is status of Emergency Act or Ordinance after end of proclamation,? 🡪 Clause (7)
▪ Period of 6 months from end of emergency
▪ Example : 24th Nov 2011 – May 2012
Issues regarding emergency :

i. Breach of supremacy 🡪 emergency law can be inconsistent with FC

ii. Separation of powers 🡪 law supposed made by parliament, but during emergency, its
executive’s power
iii. Breach of concept of federalism 🡪 parliament supposed to make law on federal matters
only, but during emergency can transgress into state matters
iv. Breach of fundamental rights 🡪 can be inconsistent with Articles in FC, including Art 5
v. Emergency law also provides preventive detention 🡪 detention made not by ct. of law no
trial
Similarities & differences between Art 149 & 150

Similarities

▪ Both Art 149 & 150, must be expressly stated recital in Act pertaining to emergency.
Because of one or more grounds under Art 149. If no any grounds 🡪 then it is ordinary
law
▪ Both articles have power to provide preventive detention :
- POPCA 🡪 has been substituted with Prevention of Crime Act
- POCA (Art 149) 🡪 focus more on criminal activities
Differences

Art 149 Differences Art 150

Proclamation not necessary Proclamation Proclamation is necessary
unless both houses seat
together

Only parliament has power to make Legislative authority Both YDPA & parliament have
law power

Limited to Articles : In consistency Law may be inconsistent,

- Art 5 except
- Art 9 in 7 matters in clause (6A)
- Art 10
- Art 13

Federal matters only Subject Matter federal & state

Must be through procedural Procedural Procedural requirements can be

requirement – 2/3 majority Requirement dispensed with :
- Consent of rulers is not
applicable
- Simple majority is
adequate

No breach of separation of powers SOP Only YDPA has power to

breach SOP and Federalism

Repealed is necessary. In definite Repealed Valid for 6 months expiration

until repeal by Parliament on proclamation by :
- YDPA or
- Parliament

(automatic expiration)
ARTICLE 151 (Preventive Detention)
Gives protection, safeguard, right to a person detained under preventive detention.
⮚ Preventive Detention(PD) Art 151 :
▪ Detention made by relevant authority (Parliament, YDPA) under Art 149, and
150
▪ Not subject to judicial trial- Not given fair trial, contrary to justice (no hearing)
▪ Cannot be made work binding process- legislative power but since the annulment
of emergency and revocation ISA, hardly to find cases under New PD
(POCA&POTA)
▪ Most of cases dealing with ISA.
▪ up to 2 years subjected to renewal/extension
▪ special prison
Under PD Law, there are 2 stages:
1. Initial arrest/detention
- Made by police
- Has power to detain/arrest without warrant
- Up to 60 days
Eg : sec 73 of ISA, without judicial authority.
- Can be detained under right protected under Art 5.
Eg: if arrested under DDSPMA, the power to detain under Minister. If arrested under
POCA/POTA, can be detained by relevant board.

Case: Izam Mohd Noor (2002) 4 MLJ 449 (case of changing party)
- A politician of UMNO but also a lawyer supporter for Anwar.
- Later, form BERSATU under Tan Sri Muhyiddin b Yassin.
- Principle: An arrested person, if by police under special law, entitled to the right under
Art 5 unless this special law EXPRESSLY EXCLUDE the right. In absent of express, the
detaining is entitle to the right, so ISA does not expressly excluded. ISA can provide the
exclusion under Art 5
- Held : Entitled to right

2. Starting point PD order, Minister has power to detain 2 years

Statute made by Parliament:

1. DD(SPM)A 1985 (Dangerous Drugs (Special Preventive Measures) Act

- Dealing with Drug activity. Power of police to detain 60 days. But can be renew up to 2
years.
2. Prevention of Crime Act(POCA) 1959 :
- Empowers police to arrest person 🡪 up to 24 hours
- Sect 4 : empowers magistrate to detain 🡪 up to 21 days
- Sect 19A : prevention of crime board
- Sect 7B : consisting of J members
 - Must refer to Federal consti : sch 2
3. POTA 2015 :
- Refers to PC
- Sect 3 : empowers police to arrest without warrant
- Same procedure with POCA
4. Anti-Money Laundering :
- Sect 2, Sect 60B /16B
- Sect 13 of POTA : prevention of termination board
(Not less than 5, not more than 8 years)
- Prevention not more than 5 years

Rights made under Art 151 (Right of Detainee)

This right applies when PD is served on the suspect detained. Not applicable to detention made
by Police under initial arrest. Only made by Minister
Case: Theresa v Chin Ching
- Arrest made under ISA
- Issue: when right under Art 151 apply?
- Held: when there is Detention order made by Minister.

1. Ground of detention must be informed ASAP / communicated (Art 151(1)(a))

- Mentioned in detention order
- eg: ISA
Case: Pathoo A/L Perumal v MHEAN (1991 1 MLJ)
- ‘Operasi Lalang’ 1987
- Those who opposed gov.
- Members of supporters of Anwar Ibrahim were detained by Mahathir (PM) at that
time
- Detained under ISA for 7 years because conducting activity influence racial
- Ground detention is threatening security of country
- Held: he can applied for habeus corpus. The ground must be communicated
ASAP, if not unlawful detention.

2. Allegation of facts
- Can be withheld by Gov / Minister – if involve national interest such as
intelligent, not entitle to this. However, if there is challenges, the court is entitled
to know the allegation of fact which the gov considered as national interest.

Allegations in the case above:

🡪 29 June 1980, delivering speech at Bangunan Peniaga Ikan- accusing the
government to enclose Chinese and Tamil school.
🡪 2nd Oct 1985, speech held at Jalan Laksamana and Jalan Ipoh
Case: Mokhtar v Sim Kim Cheon
- They provoke racism to make Malay go against Chinese.
- The court held that they were found guilty. But the pardon board decided to
reduce punishment.
But, there is exception: Art 151(3) – authority may refuse to disclose facts if disclosure would
be against the national interest.
3. Opportunity to make representation to advisory board to avoid detention order.
(Art 151(2))
- has 2 persons & 1 chairman having legal qualified not less than 10 years
which all were appointed by YDPA.
- As a detainee, he has right to made representation.
- This right given to citizens only (Art 151(1)(b))
- Once the representation submitted, the board must made recommendation to
YDPA within 3 months after receiving the report made by detainee.
- If not enough, can apply to YDPA for extend the period, but the application of
extension must be made before the lapse of 3 month.
- Failure to do so, considered as unconstitutional.
Case: Re Tan Boon Lian 1977 MLJ
- Detained under PD, but advisory board made recommendation to YDPA after 3
months from the date of sending the representation.
- Ct. granted habeas corpus
- If continue detention, it is unlawful detention
Case : Rajoo Ramathamiy
- Apply for extension for 3 months
- After Tan Boon Lian case, then Parliament amended Art 151 providing new
provision for extension.
- Detention is not valid as advisory board applied for extension for 3 months period
is over.
- BOP is lies on the Minister to disprove illegality of detainee by producing
detention order signed by proper authority according to the law
- Rajoo: Just to prove unlawful detention.
- Held; Ct. granted habeas corpus

Can or cannot PD be renew? 2 years renewal/ extension can be made by authority

Case: Gucharan Singh A/L Bachita Singh (2002) 4 AMR
- Extension of first detention made by minister is on the same ground
- No need to have a new ground
Ground that can be challenged by detainee

1) Substantive ground
a) Non-existence (no ground of detention)
Case: Re Tan Sri Raja Khalid.
- The bank suffer huge loss- no dividend- the soldier angry.
- The gov thought it was because of Tan Sri Raja Khalid, thus arrested him under
ISA. He challenged.
- Held: Economic ground cannot be used for ISA.
Case: Jamaludin Othman
- Held: religious activity cannot be used for ISA

b) Mala fide- Bad motive

Case: Abdul Ghani Harun v Ketua Polis Negara (2007) 2 MLJ
- Principles: Deliberating denying his right to detain him up to 30 days.
- The police officers need about 30 days to detain the appellant. This is premature
statement, to give the appellant under police custody.
- Held; granted Habeus Corpus.
- At appeal, court reverse the judgements, but principles remains.

2) Procedural Ground.
- Must within 3 month
Case: Re Tan Boon Lian 1977 MLJ
Case: Rajoo Ramathamiy

2 copies must be given to. If only one copies, this is known as Procedural Ultra Vires.
 Art 159 (Constitutional Amendment)
- Should not be amended easily nor difficult. It should be balanced.
- If difficult, cannot follow. Need to increase number of Parliament.
- If easy, have chances to deprive Citizen Right
- FC provides various means of amendment.
Meaning:
Art 159 (6): Addition: to construe, to add, to make new articles,
Repeal: with addition or no addition.
Actual: changing for betterment.
Law: Written law ; the Constitutional (Amendment) Act

This FC is supreme, what is the status of Amendment?

Case: Loh Kwai Cheong - constitution should be permanent, but there is no permanent in
something. There should be a certain amount of flexibility to allow the constitution to change
any provision. It must be read in harmonious construction.
Art 159 (1): can be amended by Parliament alone or subject to COR and Governor of S/S
How to amend?
1. FORMAL WAY: Had permanent effect
a) Art 159(3) : 2/3 majority
- Following the total number of majority.
- Parliament alone has power to amend Constitution
b) Art 159 (5): 2/3 Majority + Conference of Ruler is necessary before it can be
amended. (most difficult)
- Related to Malay Rulers, special privileges of Malay& Rulers.
- eg: Art 10(4), Part 3, Art 38(2)(c), Art 38 (4) Art 63(4) and Art 72(4), Art
71(1), Art 70, Art 50, Art 153, Art 159
Case: Phang Chin Hock
- Accused underwent special trial under ESCAR
- Challenged the validity of the law
- Issue: whether certain provisions of the constitution can be amended?
- Laid down 5 methods:
1) Supremacy
2) Republic in contrast to US monarchy
3) Federal character (Art 73,74)
4) Separation of power
5) Secularism against Art 3
- Held: court decided not follow

c) Art 161 E : 2/3 majority + Consent of Governer of S/S

- Related to special matter of citizenship, religion in Sabah & Sarawak.

Case: Robert Linggi- Judicial of appointment act.

 d) Art 159 (4) – simple majority (exception)
- only need members who present and vote. Sixth and seventh Schedule

Case: Kelantan v Gov of Malaysia

- Amend consti without the consent of State Ruler
- State has not been consulted
- Amendment to art 1 and 2
- Held: nothing said needs consent of the State Ruler. Amendment is valid.

2. INFORMAL WAY – had temporary effect

- Under Art 150, 149

- Through judicial interpretation.
Case: Mohd Hilman
- Accused attended political speech
- Arrested and challenged the validity of Sec 50 of AUKU
- Held: Law is unreasonable and irrational, but cannot be questioned. He found
guilty

Indirect Role of States for Constitutional Amendment:

1. By State Legislative Assembly (Art 2(b)) – New FT as the gov maybe has no more land.
Eg: Putrajaya is part of Selangor, but later need to surrender to Putrajaya.

2. Governor of S/S:
- amendment to matter protected under FC
- Direct involvement of Head of State (Art 161 E)
- Consent of Gov also necessary
Case: Sugumar Balakrishnan
- MR only collective bodies

3. State Senator (Art 45)

- One state, 2 Senators
- 26/70- representing various group & territories. ( more than 1/3)
- Can play the role

4. Conference of Rulers (Art 38) – schedule 5

- Many function (a-e) depend on functions.
- Matters affecting disunity of MR- comprising of 9 Rulers
- Consultation or appointment of Ruler
- Something touching on National Policy can be discussed on COR.
- Need consents from COR eg:
 a) Art 159 (5) – discretion of MR
b) Art 71 (1) – Right of State Rule
c) Art 10 (4)
d) Art 72(4)
e) Art 2(b)
Limitation to Amendment
1) Procedural Limitation
- Find in mode of way. Cannot pick and choose.
- Pertaining to consent of ruler, there are 2 issues:
Case: Ismail Robert Linggi
- 1983 crisis – Gov & MR – proposal by PM, to amend Art 66 - need royal assent.
Prior to 1983-1984, no time limit. This amendment limit to certain period – up to
30 days only
- 1994’s crisis- Art 66 is repealed again by inserting clause (4A) which YDPA
given 30 days to royal assent and after that bill automatic become law. – Art 181
amended – immunities of Ruler were abolished. Subject to Art 182, 183

2) Substantive Limitation
- Whether the constitution cannot be amended at all? By virtue of Art 159, can.
- But in certain provisions, cannot be amended by Parliament alone. Subjected to
other institutions. Then can be considered as valid.
Case: Kelantan v Gov of Malaya.
- Urgued on the the fundamental change from Malaya to Malaysia, consent of Ruler
should be obtained.
- Held: rejecting the contention stated no explicit provision required the consent.
Case: Loh Koh Chuon
- Court laid down 3 basic consepts:
1) Fundamental liberties
2) Distribution of power
3) Separation of power between various organ
Case: Faridah Begum Abdullah
- Art 155 forbid or not Parliament from enacting law to permit a foreigner to sue a
Malaysian Ruler.
- Held: even if the right for foreigner to sue, it was still illegal and ultra vires Art
155, UNLESS a similar right given to Malaysian
 CITIZENSHIP
Part III (Art 14-31)
Can refer to another provision:
⮚ Schedule 1 & 2 : very important- whether we are one of the 4 types of citizenship
⮚ Art 40
⮚ Citizenship Rule s 1964
⮚ National Registration Act 1959
⮚ Immigration Act 1959/63
⮚ Passport Act 1966

Definition of Citizenship

✔ Citizen – native or naturalized person belong to particular countries - loyalties to

a country and entitled to protection from gov. and to exercise rights (constitutional
rights)
✔ Citizenship – the status of person being citizens including their rights and duties
towards gov.
✔ Naturalize person- can be citizen of country after fulfilling certain condition.
Originally not natives
Why Part III is so important?
1. Constitutional right will be given :
▪ Citizenship provision cannot be violated by Art 150 (6A) during emergency
▪ Must have consent of parliament to amend – Art 159 (5) + Part 2
▪ Questioning the provision is a crime – Art 10 (4)
Case: Mark Koding
- Differences between citizens & not citizens
- The rights of citizens cannot be given to non-citizens
- Art 5 (5) & Art 10
- Concept of significance of being citizen
- He was found liable even want to use his parliamentary privileges as an MB

2. Right given to citizen only – non- citizen cannot. Eg: right of Art 10(passport,
employment, tuition fees)

International Law
o Travel abroad 🡪 must be with passport
o Protection from extradition
o In terms of municipal law (local law)
▪ No banishment
▪ No exclusion
▪ Need to prove that we are Malaysian 🡪 so that cannot be banished
● Ahmad Thaiyub bin Abd Rashid
● Kum Aik v PP
- Art 9 : no banishment against citizen when born at Kedah
 o In terms of employment?
▪ No need to have permit
o Constitutional rights
▪ Rights given to citizens only

Factors of acquisition & termination of citizenship

1. Jus sanguinis : blood relationship
2. Jus Soli : born in that country (mother or father)
: land matters
3. Birth inside & outside, on Malaysia day or not Malaysia day
4. Marriage
5. Age
6. Residence
7. Gender
8. Loyalties
9. Good character

Acquisition of citizenship
▪ Art 14 + Sch 2 (Part II & Part III)
▪ Art 15
▪ Art 16
▪ Art 17

4 Types of Citizenship

1. OPERATION BY LAW (Art 14)

- Sch 2 (Part II)
Part I – For those who were born before 1963
Part II – For those who were born on/after 1963
Part III – supplementary

Children born in federation:

▪ Citizenship by operation of law
▪ Automatic citizenship
▪ Because mother/father are permanent resident

Children born outside federation:

▪ Father only citizen of Malaysia- The child is citizen by operation of law
▪ Birth must be registered within 1 year
▪ Matter of eligibility, right
Case: Jennifer Theresa Rubys
- Child born in (Canada), father (Malaysia)
- Gov. deprived of her citizenship
- She challenged on ct. to the validity
- Ct. granted citizenship

Case: Ramanojom
- The child (India), mother (india), father (Malaysia)
- Ct. granted citizenship by operation of law

Case: Hajar Mohideen v MK Abdul Rahman 2002

- Father (Malaysia), child (India)
- Not registered within one year
- Ct. distinguished between substantive requirement [father’s citizenship] &
procedural requirement [registration]
- Thus, ct. granted citizenship

Case: Kalwant Kaur A/P Ratansingh 1993 2 CLJ

- Father (British, not Malaysia permanent resident)
- Child born in Perak
- Ct. granted citizenship

2. BY REGISTRATION (Art 15-16)

- Art 15(1): Wife ( foreigner), Husband (citizen)

- Wife can apply to be Malaysian if fulfill condition under Art 48 – Permanent
Resident not less than 2 years.
- This type of registration needs to be applied to force gov. to make him as a citizen
(deduantium mendeamours)
Case: Minal w/o Mumannialy
- Gov can refuse
- If gov reject, they can apply for judicial review.

- Art 15(2); below 21.

- Art 15A :
– to insert new clause – more on adopted child
- special power given to grant citizenship
Case: Lee Chin Poon 2010
- Child whom doesn’t know his parents, whether he is citizen or not
- Ct. granted ‘special power’ in Art 15A

- Art 16
▪ Child born in Malaya
▪ Living not less than 7 years
- Art 16A
▪ Citizenship of child in Sabah
▪ Born on 1963
▪ Not less than 12 years living

3. BY NATURALISATION
- A matter of elligibity, not entitlement
- Requirements more strict:
1. Minimum residence is 12 years
2. Good character, adequate malay language, etc

Story of Princess Diyana

4. BY INCOOPERATION OF NEW TERRITORY

- Suggestion to parliament
- Parliament will make consideration to it

Termination of citizenship
i. Renunciation (voluntary termination)
ii. Deprivation

1. Art 23 : Renunciation
▪ Initiative from the citizens
▪ Age 21 and above
▪ He can do this :
i. Already or is about to become citizens of other country
ii. No double citizenship – (Malaysia does not recognize this system)
▪ Apply to all types of citizenship

2. Art 24 : Grounds for depriving citizens (from gov)

i. Acquisition of foreign citizenship
ii. Exercised exclusive rights or available for the citizens of that country
iii. Art 29 (commonwealth citizenship)
iv. Wife obtained citizenship of that husband if they get married
- Art 24
- Art 16
 ● Mark Sik Kwong
- Father (China), he had been staying there for long period, studied there,
- When he came back to Malaysia, gov. deprived of his citizenship
- Ct. checked his origin citizenship
- Ct. agreed with the gov. 🡪 he has enjoying exclusive rights of that country
(second ground was applicable)

● Lee Thian Hock

- Lee from Penang, born there on 1955
- Law of UK 🡪 those who born in SS, before 1963, he can apply special passport,
namely BOCP (British Overseas Citizens Passport)
- When he came to Malaysia, he was deprived by gov.
- Whether BOCP is considered as enjoying exclusive rights?
- Ct. held 🡪 BOCP is not exclusive right, thus the decision is unconstitutional

3. Art 25 :
▪ Deprivation is applicable to two types of citizenship :
i. Registration
ii. Naturalization
▪ Eg : Sulu conflicts, Sabah royalties, etc
▪ Within 5 years from the date of acquisition
▪ Abroad residents 🡪 4, 5 years 🡪 if late, the citizenship will be deprived
▪ Fraud 🡪 deprivation

Procedure of deprivation (Art 27):

▪ Gov. has discretion to deprive citizenship :
i. Substantive safeguard
- There must be a ground
- Must be stated in constitution
- Deprivation should not leave to stateless citizen
ii. Procedural safeguard
- Written notice must be given to affected person
- Notice must have ground :

● Lim Lian Geock

- Ct. held that those grounds are from Article 24, 25, 26
- Once receive motive, the affected person has right to refer to enquiry committee
- We can request to have an enquiry committee to be set up
- Any matters will be referred to this committee
- The committee shall discuss with the representatives
- They will send report to make recommendation 🡪 then will decide
- These process are the process of right of natural justice
- Gov. shall have considered the request, but then gov. is not bound to follow
recommendation made by committee
● Lew Shi Lai
- If it involves confidential matters 🡪 eg : go outside to pursue study (gov. doesn’t
deprive)

● Som Kok Leong v Minister

- Ouster clause which exclude ct. of law from interfering decision made by the gov.
- If the ouster clause 🡪 following the grounds in constitution, the clause is effective
and operative
- If not constitutional 🡪 gov. is considered as making error
- Ct. granted ‘cer tertiori’ (to set aside the decision made by gov)