1.

MERDEKA UNIVERSITY v GOVERNMENT OF MALAYSIA

FACTS: The plaintiff submit a petition to the YDPA for the establishment of Merdeka University. The petition
was made in 3 languages that clarify that the institution will use Chinese as the medium of instruction with the
emphasizing of the teaching of Malay and English (Pg 4, Para 1). The petition was also distributed to the Prime
Minister, the Minister of Education and all members of Parliament. However, the petition was denied due to the
reasons of (a) MU would use Chinese as the medium of instruction; (b) It was meant to cater for students from
Chinese independent secondary schools; (c) It was to be set up by the private sector. The establishment of the
university will be in contrary with the national education policy (Pg 4, Para 2)

The plaintiff claims as relief a declaration that the defendant's (the government) rejection of its petition for the
establishment of MU is null and void as it contravenes the Federal Constitution and also a declaration that the
refusal of its petition to establish MU is an unreasonable and improper exercise of the discretion conferred by
section 6 of the 1971 Act (Page 4)

The petition was also rejected by the YDPA. However, since the YDPA is the constitutional monarch and must
act in accordance with the Governments advice, as seen in Article 40 (1) of the Federal Constitution, ‘act in
accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet’
the Government is pointed as the Defendant. (Page 5, Para 2)

LAW INVOLVED:

i. Section 6 of the University and Colleges Act 1971 Act provides:

6. (1) If, the Yang di-Pertuan Agong is satisfied that it is expedient in the national interest that a
University should be established, he may by order —
(a) declare that there shall be established a higher educational institution having the status of a
University, which shall be a body corporate, for the purpose of providing, promoting and
developing higher education in all such branches of learning as shall be specified in the order;
(b) assign a name and style to that University; and
(c) specify the location of the site which shall be the seat of that University.
(2) An Order made under subsection (1) (hereinafter referred to as the 'Incorporation Order') shall,
at the next meeting of Parliament, be laid before both Houses of Parliament."

ii. Article 152(1) of Federal Constitution.

(a) no person shall be prohibited or prevented from using (otherwise than for official
purposes), or from teaching or learning, any other language; and
(b) nothing in this Clause shall prejudice the right of the Federal Government or of any State
Government to preserve and sustain the use and study of the language of any other community
in the Federation."

iii. Article 152(6) of Federal Constitution (definition of official purpose)

iv. Article 160(2) of Federal Constitution (definition of public authority)

ARGUMENT LAWYER: (Pg 6)

i. The rejection of the plaintiff’s petition was unconstitutional as it is against Article 152(1).
- the Article prohibits the use of Chinese for official purposes, but not for unofficial purposes,
that as "official purpose" (Pg 6, Para 3)
- MU, if established would not be a public authority since the teaching in Chinese there would
not be used for an official purpose. (Pg 6, Para 5)
REASON USED BY THE JUDGE (University kalah)

i. The court refer to the history of language provisions. (Pg 6, Para 6)

- Most important factor in welding the Americans was the use in school and university there of
a single language, namely the English language and no other; and that while other languages
are taught and learnt, they are so only as foreign languages. (Pg 8, Para 6)
- Perhaps the Fathers of our Independence too were aware of this and determined to profit from
the American experience (Pg 8, Para 6)
ii. The court then believe that that MU would be a public authority (Pg 9, Para 7)
- A university established under the 1971 Act even if private clearly has the requisite public
element, as it is subject to some degree of public control in its affairs and involves a number
of public appointments to office in its framework, acts in the public interest and is eligible for
grants-in-aid from public funds. (Pg 9, Para 8)
- The Constitution of a university must contain provisions for all matters set out in the schedule
to the Act (section 8) and these give wide powers to the administration of the university. The
appointment of the Chancellor and Vice Chancellor is to be made by His Majesty on
ministerial advice and after consultation with the Council of the university in the latter case,
and of the Deputy Vice-Chancellor by the Minister of Education. Appointments to the Council
and Court of the university include those by His Majesty and the Rulers and Governors of the
several States and the Council will also include designated Government officers. His Majesty
has power to amend the Constitution of a university at any time and by order exempt, vary or
add to any of the provisions of the schedule to the Act (Page 9, Last para/ Page 10, Para 1-2)
2. KARAM SINGH v MENTERI HAL EHWAL DALAM NEGERI (Judge: Suffian)

FACTS: Karam Singh has challenged the validity of the detention order that was produced against him to be
mala fide. He was detained under Section 8 of the Internal Security Act (ISA) The case is an appeal case
towards the rejection of habeas corpus that was produced by the appellant to the judge. Karam Singh, have since
1957 consistently acted in a manner prejudicial to the security of MALAYSIA with his knowledge and
willingly, participated in activities which have furthered the cause of the Communist Party of Malaya in this
country (CPM). This case is an appeal against the rejection of the judge towards his application of habeas
corpus.

LAW INVOLVED

i. Sec 8 of Internal Security Act (ISA)

"If the Yang di-Pertuan Agong is satisfied with respect to any person that, with a view to
preventing that person from acting in any manner prejudicial to the security of Malaysia or any
part thereof or to the maintenance of public order or essential services therein, it is necessary to
do so, the Minister shall make an order–
(a) directing that such person be detained for any period not exceeding two years; …."

ii. Article 40(1) of Fed Constitution

By virtue of article 40(1) of the Constitution the Yang di-Pertuan Agong in the said section 8(1)(a)
meant the Cabinet (by Ibrahim J, Page 4 Para 2)

First, the Yang di-Pertuan Agong must be satisfied that it is necessary to order a person to be
detained with a view to all or any of the purposes mentioned in the section. By virtue of article 40
of the Constitution, in the exericse of this power His Majesty acts on the advice of the Cabinet or
of a Minister acting under the general authority of the Cabinet (Suffian FJ, Page 19, Para 5)

ARGUMENT LAWYER (by Suffian FJ, Page 21, Para 6-8)

i. The learned judge failed to recognise the nature and extent of the onus placed on the respondent by
the Constitution to prove the legality of the detention and was wrong in holding that there was an
onus on the appellant to discharge.
ii. Sec 8 of the Act allows a person to be detained on four grounds, that the order of detention states
three grounds in the alternative, that the grounds supplied to the appellant state only one ground,
which is that the appellant had since 1957 consistently acted in a manner prejudicial to the security
of Malaysia (Page 22, Para 4) This shows mala fide towards the appellant.
iii. The allegations of fact supplied to the appellant are vague, insufficient and irrelevant, that such
vagueness, insufficiency.
"With a view to preventing/him/from acting in any manner prejudicial to the security of
MALAYSIA/the maintenance of public order therein/in the maintenance of essential services
therein."
It is argued that the order of detention is ambiguous. Did it specify one or two or three grounds? If
the strokes mean, as they usually do, "and/or", then the order specified any or all three grounds.
(Pg 22, Para 1-2)
REASON BY JUDGE (Respondent wins)

1. Second Argument (Pg 26, Para last)

- Section 8(1) of ISA "with a view to preventing that person from acting in any manner
prejudicial to the security of Malaysia or any part thereof or to the maintenance of public
order or essential services therein" do not indicate the grounds for a person's detention; they
indicate its purpose or purposes.
- The ‘grounds’ and ‘purpose’ of the detention must be distinct. The ground (you the appellant
have since 1957 consistently acted in a manner prejudicial to the security of Malaysia, the
Yang di Pertuan Agong is satisfied that it is necessary to direct that you be detained with a
view to) and the purpose (preventing you from acting in any manner prejudicial to the security
of Malaysia or to the maintenance of public order or to the maintenance of essential services
in Malaysia) when the two are read together there is in my opinion no conflict or discrepancy
between them.
2. Third Argument
- Detention under an order of the Minister made under Section 8 of the Internal Security Act is
not illegal simply because the allegations of fact supplied to him in pursuance to Article
151(1) (a) and section 11 of the Act are vague, insufficient or irrelevant (Pg 30, Para 7)
- The power of detention is here given to the highest authority in the land, acting on the advice
of Minister responsible to and accountable in Parliament, not to mere officials. (Pg 31, Para 2)
- Detention in order to be lawful, must be in accordance with law, not as in India where it must
be in accordance with procedure. (Pg 31, Para 2)
 3. PP v. MOHD. AMIN

FACTS: During the chief-in-examination, the counsel for the first accused raised the preliminary objection that
Essential (Security Cases) (Amendment) Regulations 1975, ESCAR was invalid on two grounds.

- ESCAR was invalid because reg. 26 of ESCAR originally spoke of a right of appeal to the
Federal Court but afterwards changed it with a right of appeal to the Supreme Court which
now was no longer in existence.
- 1969 Proclamation of Emergency on 15 May 1969 under which the Emergency (Essential
Powers) Act 1979 (‘Act 216’) was enacted to revive ESCAR was null and void.

LAW INVOLVED

a. Reg. 26(1) of the ESCAR

The accused and the Public Prosecutor shall have the right of appeal as set out below:
(a) if the decision is made by the High Court in the exercise of its original jurisdiction, he may appeal
to the Federal Court;
(b) if the decision is made by a subordinate court other than the Court mentioned in subparagraph (c),
he may appeal to the High Court whose decision shall be final; and
(c) if the decision is made by the Sessions, whose President is conferred with special jurisdiction under
subsection (3) of section 63 of the Subordinate Court Act, 1948, he may appeal to the High Court with
a further right of appeal to the Federal Court;
and the decision of the Federal Court in respect of an appeal under subparagraphs (a) and (c) shall be
final
b. Article 40(1) of Federal Constitution
c. Article 43(2) of Federal Constitution
d. Article 150(1) of Federal Constitution

LAWYER’S ARGUMENT

a. The 1969 Proclamation of Emergency is null and void. (Pg 82, Para e)
- Art. 40(l) of the Federal Constitution provides for the King to act on the advice of the cabinet
or of a Minister acting under the general authority of the cabinet.
- It was submitted that the dewan rakyat had been dissolved to enable elections to be held on 10
May 1969 and the fact that on 15 May 1969 there was no cabinet, the King could not have
acted on the advice of the cabinet as the cabinet ceased to exist on the dewan rakyat standing
dissolved.
- Likewise, it was contended there could have been no minister acting under the general
authority of the cabinet as there was then no existing cabinet (Pg 83, Para b-c)
- Even if any personality or personalities had been appointed under art. 43(2), only a care-taker
government could have been constituted.
- A care-taker government could only carry on day to day administration in office and nothing
more and a caretaker government could not lawfully advise the King to declare an emergency.

REASON BY JUDGE (Yang bukan accused wins)

a. A proclamation of emergency at that particular time in 1969 is within the royal prerogative of the
YDPA in which case the YDPA can act personally without the advice of cabinet or minister acting
under the general authority of the cabinet. (Pg 86, Para D)
- Art. 40 of the Federal Constitution is inapplicable in those circumstances. (Pg 86, Para f)
- A country with a written constitution like ours, the constitution is supreme and the courts must
give meaning to the cold letter of the constitution, interpreting the provisions of the document
from the words alone, without importing extraneous rules of law, practice or convention. (Pg
86, Para f-g)
- Assuming the position that the YDPA has to act on the advice of a cabinet of ministers in
order for the YDPA to invoke his powers to issue a proclamation of emergency, the judge
views that if parliament is dissolved and no new appointment is made while its dissolution is
on, the cabinet does not cease to exist and it can advise the YDPA in the exercise of his
functions.
- The existence cabinet will act as a care-taker government and
- A care-taker government can advise the YDPA on policy matters which include national
emergencies, but it is up to the YDPA whether to act pursuant to the advice or not.
 4. PHANG CHIN HOCK v PUBLIC PROSECUTOR [1980] 1 mlj 70

FACTS: The appellant had been convicted of the offence of unlawful possession of ammunition and sentenced
to death. He was tried in accordance with the Essential (Security Cases) Regulations, 1975, which were held to
be invalid in Teh Cheng Poh v Public Prosecutor but were subsequently validated by the Emergency (Essential
Powers) Act, 1979.

LAW INVOLVED

1. Article 40(1) of Federal Constitution

2. Article 159 of Federal Constitution

LAWYER’S ARGUMENT

a. Mentioned in Article 159 of FC, any Act of Parliament which amends the Constitution, is valid only if
consistent with the Constitution, and that any provision in it, which is so inconsistent, is, to the extent
of the inconsistency, void.
- Issue 1: Do Parliament have power to make constitutional amendments that are inconsistent
with the Constitution? (Pg 3, Para 9)
b. Even if amendments made by Parliament in accordance with Article 159 may be inconsistent with
existing provisions of the Constitution, the court still has to read into the Constitution implied
limitations on the power of Parliament to destroy the "basic structure" of the Constitution (Pg3, Para 5)
Basic Structure of Constitution (Pg 3, Para 6)
(a) supremacy of the Constitution; (b) constitutional monarchy; (c) that the religion of the Federation
shall be Islam and that other religions may be practised in harmony; (d) separation of the powers
of the three branches of Government; and (e) the federal character of the Constitution.
c. Even if the Emergency (Essential Powers) Act, 1979 ("Act 216") is valid, sections 2(4), 9(3) and 12 are
void as they destroy the basic structure of the Constitution. (Pg 3, Para 8)

REASON BY JUDGE (respondent wins)

a. If our Constitution makers had intended that their successors should not in any way alter their
handiwork, it would have been perfectly easy for them to so provide; but nowhere in the Constitution
does it appear that that was their intention (Pg 4, Para 7)
- Other than Article 159, there are many provisions showing that they realized that the
Constitution should be a living document intended to be workable between the partners that
constitute the Malayan (later Malaysian) polity, a living document that is reviewable from
time to time in the light of experience and, if need be, amended. (Pg 4, Para 7)
- In reading Article 4(1) and Article 159, the rule of harmonious construction is required to give
effect to both provisions (Pg 4, Para 8)
- Hence, the Acts made by Parliament, complying with the conditions set out in Article 159, are
valid even if inconsistent with the Constitution. (Pg 4, Para 8)
b. Parliament may amend the Constitution in any way they think fit, provided they comply with all the
conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself.
(Pg 7, Para 2)
- The Indian Constitution was made by ta Constituent Assembly, not by ordinary mortals
(penjajah). This is probably why despite Article 368 of Indian Constitution (which empowers
Parliament to amend the Indian Constitution) there are implied limitations on that power to
not affect fundamental liberties and destroy the basic structure of the Indian Constitution. (Pg
5, Para 9)
 5. PHANG CHIN HOCK v PUBLIC PROSECUTOR [1980] 1 mlj 213

FACTS: The appellant was charged for an offence under section 57(1)(b) of the Internal Security Act No. 82
(Revised 1972) for possession of six rounds of ammunition and was tried under the Essential (Security Cases)
Regulations, 1975 before the High Court in Kuala Lumpur. He was convicted and sentenced to death on April 4,
1977. He lodged notice of appeal to this court on April 9, 1977. On January 1, 1978 the Courts of Judicature
(Amendment) Act, 1976 (Act A328) which has the effect of abolishing the right of appeal in criminal matters to
the Yang di-Pertuan Agong came into force. On June 28, 1979 this court dismissed his appeal against
conviction. (Pg 2, Para 2)

LAW INVOLVED

i. Section 13 of the Act A328

ii. Article 38 of the Federal Constitution
iii. Article 159(5)

LAWYER’S ARGUMENT

i. Section 13 of the Act A328 is invalid because the Conference of Rulers has not given its consent
under Article 38 Clause (4) of the Constitution (Pg 2, Para 3)
- Section 13 of Act A328 abolished appeals in criminal cases to the Yang di-Pertuan Agong

REASON BY JUDGE (Phang kalah)

i. When they come to these functions (executive functions of COR), they sit on the second day of the
Conference and they are then attended by the Yang di-Pertuan Agong who shall be accompanied
by the Prime Minister. (Pg2, Para 8)
- In their deliberations, the clause specifically provides that not only the Rulers and the Yang
di-Pertua-Yang di-Pertua Negeri but also the Yang di-Pertuan Agong shall act in accordance
with the advice of the respective Executive Councils and Cabinet respectively.
- Hence, the Rulers make no decisions (Pg 2, Para 8)
ii. Hence, the decision to abolish appeals to the Yang di-Pertuan Agong comes within the matters
which the Rulers may deliberate upon, subject to the condition that their deliberations are in
accordance with the advice of their Executive Councils and in the company of the Yang di-Pertua-
Yang di-Pertua Negeri and the Yang di-Pertuan Agong. But the Rulers take no decision in the
matter. (Pg 2, Para 9)