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Consti Notes 24 63
Consti Notes 24 63
Class: Dr Khairil
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Nik Aisha Tasnim’s
Class: Dr Khairil
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Nik Aisha Tasnim’s
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- Habeas Corpus is an order from the - Eg: unlawfully detained. Habeas corpus
High Court is available but has to be claimed. If
- Order of release is issued to the one not claimed, he’ll stay detained
who has custody of the aggrieved
person. Next lecture, details of habeas corpus
- App of Hab Corp made to HC
- Someone representing a complainant
Article 5(2)- Habeas corpus
on his behalf to file the complaint
- Application of habeas corpus starts in
the High Court, when appealed terus
to Fed Court.
Detention is against Art5(1) - A complaint of habeas corpus must
But rights can be claimed be it legal specifically be claimed/complained on
detention/illegal detention his own behalf.
- Legal detention= Right of An Arrested - The judge shall look into the complaint
Person > Art5(3)(4) and determine whether the detention
o Examples: lawful arrest made or arrest is lawful or unlawful
by the police. o If lawful= the arrest/ detention
shall continue and court
When a person is arrested. should not interfere and not
Their right to liberty is grant the order of habeas
deprived but it is legal. (only corpus.
within 48 hours) o If unlawful= the HC judge will
issue writ of habeas corpus.
o Another example: a person is
being detained without trial Detention
under certain laws like Legal detention Illegal detention
dangerous drugs act, terrorism Rights of an arrested Apply for habeas
act, prevention of crime act. person- Art5(3) & corpus in Art5(2)
(Executive decisions. Valid (4) or
detentions unless proven Rights of a detainee
otherwise) (art151)
Lawful arrest made A detention against
- Illegal detention = Habeas Corpus by police Art5(1) when the
o For people unlawfully arrested When a person is detention is
or people illegally detained being detained unlawful
- Court will issue arrest without a trial
Under special law
(drugs act/
Gov of In construing personal liberty dangerous act)
Malaysia v in art5(1) it only guarantees a
Loh Wai person, citizen or otherwise If want to keep the
Kong 1979 except an enemy alien. detainee longer, an
Freedom from bein order from the court
unlawfully detained is needed.
Ac to dicey
Art5(1)&(2)
Sir comments: Art 5(2), for habeas corpus is a The right to writ of habeas corpus
good example of rights and remedy. When - HCorp literally means bring the body
rights are infringed. Remedy doesn’t come to - It’s a prerogative writ issued by the
u. You must claim. court used to command a person who
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Acquittal= Trial and decision has The pleas don’t apply where:
finished/concluded 1. A trial has been held to be a nullity
Conviction= trial has ended and has been 2. The accused has already been
found guilty subjected to preventive detention
No conclusion= no acquittal/conviction 3. The accused is preventively detained
having already been convicted of an
Charged again on the same facts (but not if offence
same offence) = boleh 4. The accused is charged with a different
Diff offence but same facts= boleh offence on the same facts
Same offence same facts = xleh 5. EXCEPTION mentioned in Art7(2)
When the conviction or acquittal has
Saravanan Art7(2) of the FC lays down the been quashed and a retrial is ordered
a/l KS Somu principle that a person shall by a court superior to that in which a
v Timbalan not be placed in double defendant was acquitted or convicted,
Menteri jeopardy and be punished for neither the plea of ‘autrefois acquit’
the same offence. nor ‘autrefois convict’ applies.
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Art9(3) Article 10
- Under the consti, there are states Freedom of Speech Assembly and azzociation
that’s under special position - Subjected to clauses (2)(3)(4)
- Not the ones under states of Malaya - Every citizen
which is Sabah and Sarawak.
- So the federal government can impose Speech and expression
restrictiosn of movement in all - Its very wide
countries. Right of that power takde - It involves any communication
kat Sabah Sarawak je. - It could involve the photos, pictures,
symbols, sign language
Pihak Berkuasa Negeri Sabah v Sugumar - All of the abovementioned are
Balakrishnan considered communication eventho
- Whether he had the right to stay in w/o words
Sabah - It covers publication of anything=
news/ books
Article 64: Application of Immigration Act -
Article 66: Restricion of citizens right of entry
into and east Malaysian state Citizens
- When hes a member of any of the pub - In terms of persons and legal entity
services of the federation - Non-citizens don’t get the protection
- When hes NOT entitled under article 10(1)
- Case of Dow Jones’
Datuk Syed
Kechik bin Cases
Syed Dow
Mohamed v Jones
Gov of Publishing
Malaysia 1979 CO (ASIA)
Inc v Ag
Pihak 1989
Berkuasa
Berkuasa v
Sugumar Article 10(2)(a)
Balakrishnan - Factors that can be used to restrict
freedom of expression
Ambiga a/p - Law for the interest of the security of
Sreenevasan v the federation
Director of - Law of friendly relations w other
Immigration, countries
Sabah, Noor - Law relating to public order morality
Alam Khan bin restrictions to
Abdul Wahid
Khan Article 10(4)
- Restrictions can be done for the
security of the Federation for any
matter pertaining to sovereignty or
Article 10 prerogative est/protected under:
o Article 152
o 153
Article 10(1)(a) Freedom of Expression o 181
o Contempt of court
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Nik Aisha Tasnim’s
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6. Defamation Act
Sect4(2):
act/speech/words/publication
that’s not deemed to be
seditious
- When showing what any
Ruler did was wrong
- To point out erros or
defects in any gov
(constructive criticism)
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Religious rights
Apostacy
Ahmadyani - Jemaah Islam Mamat b - Court states that right to
b Ismail v - This JI was regarded as a Daud v profess religion does not
Inspector terrorist group. Majlis Agam cover leaving the religion.
general of - This group describes Islam - Bukanla takde, but its not
Police themselves as the true constitutionally protected
Muslims. under this article.
- Their purpose is to overthrow - In other words, there can be
the gov. laws to restrict exiting the
- Ahmadyani had argued this is religion.
their religious rights.
- These rights are argued also Lina Joy v Pf cant hide behind art11(1) of
in the right to overthrow the Majlis Agam the FC w/o first settling the
government. Islam issue of renunciation of her
- The court held that u can’t Wilayah religion w the religious
hide behind religion. persektuan authority which has the right to
- U can’t commit terrorist in manage its own religious affairs
the name of Islam under art11(3)(a) of FC
- How can you kill Muslims in
the name of Islam? Jenny b - They were charged/adviced
Peter by the lawyer that if you
Rights in art11 not absolute and Muzdhalifah declare that you are non-
subject to law dealing w the Abdullah v muslim you wont be
security and public order Majlis charged
Agama
Right to profess & practice Islam
religion doesn’t include the right Sarawak
to belong to a terrorist group
hiding behind the name of Islam
Halimatus Polygamy
saadiah v Zakaria - Police officer had married
PSC 1994 Abdul without the approval of his
Rahman v employer
Ketua Polis - The need for approval
Negara restricts his rights
Malaysia & - He lost the case because the
Mamat b - Court states that right to Anor 2001. court said that polygamy is
Daud profess religion does not not fundamental its just
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Nik Aisha Tasnim’s
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Purdah
Halimatus- - She has to take it off to
sadiah v PSC ensure security because she Minister of Freedom to profess and
1994 works in the public home affairs v practice ones religion is
sector/bank Jamaluddin not a license to commit
- Wearing a purdah isn’t an unlawful acts or acts to
obligation so it doesn’t fall threaten the security of
under rights in Art11 the federation
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Article 12(2)
- Every religious group has the right to Art13- Right to Property
est and maintain institutions for the
edu of children in its own religion
- No discrimination on the grounds only
Art13(1)
- No person shall be deprived of
of religion in any law relating to such
property save in accordance w law
institutions
(can see that its similar w art5(1) abt
natural justice)
Art12(3) o But 13(1) isn’t for punishment
- No person shall be required to receive as in art5(1), but for the
instruction / take part in any ceremony acquisition of property.
or act of worship of a religion other
than his own Art13(2)
No law shall provide for the compulsory
Art 12(4) acquisition of use of property w/o adequate
- For the purposes of this clause compensation
o A property has been taken
Re Susie - Child below 18 peluk islam away by force (he doesn’t
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Nik Aisha Tasnim’s
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Adequate compensation if
there is compulsaory
Majlis Issue: the house was built acquisition
Perbandaran on gov’s land Because theres no
P.pinang v compulsory acquisition,
Syed Ahmad - Ahmad wasn’t satisfied they don’t get right for
a/l M. Gouse bcuz they destroyed their adequate compensation
house.
- The ownership of the The property was acquired
land belongs to the gov
but bcuz the house was Goodwill (because he gave
Ahmad’s property the land voluntarily) x
constitute property within
context of art13 and
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Registration
Art15 Registration of wife of citizen
Executive power (1) Subject to Article 18, any
Art150(4) - While PoE is in force, married woman whose husband
executive authority of is a citizen is entitled, upon
the federation shall making application to the
extend to any matter Federal Government, to be
within the legislative registered as a citizen if the
authority of state marriage was subsisting and the
husband a citizen at the
beginning of October 1962
Immunity
Art150(8) 2- Subj to art18
- Satisfaction of the YDPA under clause 1
and clause2 is final Art15A Subject to Article 18, the
- No court shall have jurisdiction Federal Government may, in
such special circumstances as it
thinks fit, cause any person
under the age of twenty-one
Citizenship years to be registered as a
Chapter 1- Acquisition of citizenship citizen.
- Art14- Art22
Art16 Subject to Article 18, any person
Chapter 2- Termination of citizenship of or over the age of eighteen
- Art23-Art28A years who was born in the
Federation before Merdeka Day
Chapter 3- Supplemental is entitled, upon making
- Art29-Art31 application to the Federal
Government, to be registered as
The principles under here: a citizen if he satisfies the
1. Jus Soli Federal Government—
2. Jus Sanguinis
3. Naturalisation (a) that he has resided in the
Federation during the seven
Acquisition of citizenship years immediately preceding
Citizenship of Malaysia may be obtained by the date of the application, for
1. Operation of law periods amounting in the
2. Registration aggregate to not less than five
3. Naturalistion years;
4. Incorporation of Territory
(b) that he intends to do so
Operation of law (automatic) permanently;
Art14(1)(a) part I of the 2nd schedule
who is a citizen (c) that he is of good character;
person born before Malaysia Day and
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(d) that he has an elementary Art18 (1) No person of or over the age
knowledge of the Malay of eighteen years shall be
language. registered as a citizen under this
Constitution until he has taken
the oath set out in the First
Art16A Subject to Article 18, any person Schedule.
of or over the age of eighteen
years who is on Malaysia Day (2) Except with the approval of
ordinarily resident in the State the Federal Government, no
of Sabah or Sarawak is entitled, person who has renounced or
upon making application to the has been deprived of citizenship
Federal Government before under this Constitution or who
September 1971, to be has renounced or has been
registered as a citizen if he deprived of federal citizenship
satisfies the Federal or citizenship of the Federation
Government: before Merdeka Day under the
Federation of Malaya
(a) that he has resided before Agreement 1948 shall be
Malaysia Day in the territories registered as a citizen under this
comprised in those States and Constitution.
after Malaysia Day in the
Federation for periods which
amount in the aggregate to not (3) A person registered as a
less than seven years in the ten citizen under this Constitution
years immediately preceding shall be a citizen by registration
the date of the application, and from the day on which he is so
which include the twelve registered.
months immediately preceding
that date; Art19 (1) Subject to Clause (9), the
Federal Government may, upon
(b) that he intends to reside application made by any person
permanently in the Federation; of or over the age of twenty-one
years who is not a citizen, grant
(c) that he is of good character; a certificate of naturalization to
and that person if satisfied— (a)
that— (i) he has resided in the
(d) except where the application Federation for the required
is made before September periods and intends, if the
1965, and the applicant has certificate is granted, to do so
attained the age of forty-five permanently; (ii) (Repealed);
years at the date of the (b) that he is of good character;
application, that he has a and (c) that he has an adequate
sufficient knowledge of the knowledge of the Malay
Malay language or the English language.
language or, in the case of an
applicant ordinarily resident in
Termination of citizenship
Sarawak, the Malay language,
A citizen may voluntarily renounce his
the English language or any
citizenship or may be deprived of it by the Gov.
native language in current use in
Sarawak.
Voluntary Renunciation of Citizenship
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Kuluwante v
Gov
Malaysia
1978
Procedure for deprivation of citizenship by
the government
Re meenal Art27 (1) Before making an order
Muniandy under Article 24, 25 or 26, the
1980 Federal Government shall give
to the person against whom the
order is proposed to be made
notice in writing informing him
of the ground on which the
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Independence
1st Art159(3) Doctrine of sep of powers
Method: General amendment Principles of check and balance
The judge as the guardian of the constitution
2nd Art159(5) - As we know the law can be interpreted
Method in many ways, but only the courts
Laws enacted w this interpretation is binding
- Art10(40 from the judgement we can see some guides in
- Laws passed under interpreting
art10(4)= this
- Part III (Art14-Art31)
- Art38
On being generous in interpreting:
- Art63(4)
- Art70 Sukma - Its language must be
- Art71(1) Darmawan accordingly receiving a broad
- Art72(4) Samitaat v and liberal construction to
- Art152 Ketua advance the intention of its
- Art153 Pengarah frramers- as lock Diplock:
- Art159(5) Penjara - in Ag v Gamvia v Momodou
Malaysia Jobe
Art38(4): no law directly - A consti
affecting the privileges, - A court should sympathise w
position, human rights and the rights
should be given to those who
3rd Method Art161(2) and Art161(4)
they seek to protect.
+the concurrence of the YDP
Negeri of the State of Sabah and
The court reminded itself: in
Sarawak.
interpreting the consti generally
4th Method Art159(4)
and liberally, it must observe the
- Exception (art159(3))
limitations.
- Subject to Art161E
- The court isn’t entitled to
Provisions excluded from clause
stretch the language of
(3)
the enactment in the
interests of any legal or
constitutional theory or
even for the purpose of
Constitutional Interpretation supplying omissions or of
correcting surpassed
Power to interpret the constitution. errors (As per gwyer CJ
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Kerajaan
Malaysia v
Badan
Peguam
Malaysia
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