Chapter 5

ETHICS IN THE
CONSTITUTION
QUESTION?

What is the relationships between

ethics of public officials and the Federal
Constitution of Malaysia?
 ETHICS IN THE CONSTITUTION
• Public officials are implementer of policies, must
concern with all provisions/articles in the
Constitution
• In the Constitution, there are special provisions
regarding natural rights –about the executing of
responsibilities
• Also provisions regarding public service –the
structure and process of public service

Example: How does a person appointed to serve in government?

What is the Constitution of
Malaysia?
• The term constitution´ is used in two
senses:
– The body of legal and non-legal rules
concerning the government of a state
(original sense)
– single written document having a special
legal status, which establishes the state,
and sets out the structure and powers of
the state (second sense)
• The term in both senses applies to
the constitution in Malaysia
• Constitution is the highest law of the
Federal which protects the people’s
rights & engraving all values and
ethics of public officials
• Purpose –for stability and wellbeing
(good order)
• Public officials are individuals who
are given the powers and authorities
to ensure that people’s basic rights
are upheld
 RIGHTS
• Are responsibilities or obligations for
someone to fulfill
• For someone to claim on others & protect
his belongings, including freedom
• Rights is about duties
Rights divided into several types:

i.Natural rights -nature, origins – to life

ii.Human rights -belongs to anyone
iii.Moral rights –to set good behaviours
iv.Positive rights –rights protected under
rules/laws
v.Prima facie rights –rights by judgment /
assumptions
vi.Absolute rights –rights someone supposed to
have
 I. NATURAL RIGHTS IN THE MALAYSIAN
CONSTITUTION
- Provision on rights important to society
- Included in all constitutions, as Malaysia
- For welfare of nation and the people
-Rights divided into 3 in the Malaysian
Constitution:
-Freedom rights
-Equality Rights
-Rights to Property
 FREEDOM RIGHTS
• Article 5 Malaysian Federal Constitution
provides rights to liberty of the person:
 “Personal liberty means a personal right not to
be subjected to imprisonment, arrest or physical
coercion in any manner that does not admit legal
justification”

 Liberty of the person –no one can be taken his

life or personal liberty unless through legal
procedure (law)
• Article 6
 Prohibiting any kind of slavery or forced
labour:
 “No person can be held as a slave and all
types of forced labour are prohibited, but
Parliament may make laws for compulsory
national service”
• Article 7
 Protecting one from criminal law with
retrospective effects & repeated trials/hearings
of the same cases
• Article 9
 Prohibiting one from banishment or excluded
from the Federation and Freedom to move
anywhere in the Federation
 In general, every citizen has the right to move
freely and stay in any part of the country
excluding where any law is passed relating to
the country, public order, public health or the
punishment of offenders. However, it must be
noted the freedom of movement does not cover
right to passport as the authority may stop a
person from leaving the country.
• Article 10
 Freedom of Speech, assembly and forming
associations –expression; peaceably and
without arms, compliance with respective laws
 Citizen have freedom of speech, assembly and
association nevertheless these freedom may be
restricted by Parliament for reasons permitted
by the Constitution. The courts have said
Parliament may only impose restrictions where
they are reasonably necessary such for the
security purpose
• Article 11
 Freedom of religion –rights to profess
and practise religions, according to
law
• Article 12
 Rights in respect of education - no
discrimination, equal opportunity to
any citizen
EQUALITY RIGHTS
• Article 8
- All persons are equal before the law and
entitled to the equal protection of the law
-no discrimination against any citizen –e.g.
appointment, administration of law,
holding or dispositon of property, business
etc.
 RIGHTS TO PROPERTY
• Article 13
 No one shall be deprived of property save in
accordance with law -must be adequate
compensation of taken legally for any purpose

 Involve not only the physically thing itself but

also the surrounding rights such as exclusively
use, the right to alienate by sale, gift or
exchange and the right to bequeath. This
article provides that no person may be deprived
of property save in accordance with law.
Execution of Power and Discretionary Power
• Power
-Constitution underlines jurisdictions of
bodies, institutions
-should not act beyond jurisdictions (ultra
vires)

• Discretionary Power
- Is a power/authority delegated by legislative
to executive through respective statute/act in
carrying out duties
- Purpose –for flexibility in decision making
• Public officials are implementers of
policies, must concern with all
provisions/articles in the Constitution
• Public officials are individuals who
are given powers and authorities to
ensure natural rights is upheld
 Discretionary power belongs to the
executive
- Enables the executive to make
decisions in choosing the best decision
from many options (alternatives)

 Discretionary power is subjective

- Exists in some situations e.g. `if
necessary’; `where it is appropriate’; `if
he is satisfied with..’ etc.
- But discretionary power used arbitrarily may cause:
i. Abuse (misused) of power
ii. Power used beyond jurisdictions (ultra vires)
iii. Improper used of Power (breach of trust)

Example: mala fide, improper delegation, act under

influenced of others
• The Courts have power to review all
discretionary powers executed by the Executive
• Discretionary power can be curbed/limited
through proper planning, policy statements, rules
and regulations, and practice of good
governance
 CONCLUSION
• Public officials should understand rights/provisions
in the constitution
• Public officials should not act against the provisions
• Understandings about the provisions on rights in
the constitution help public officials to execute all
delegated powers properly/ethically