(g) freedom of religion;^
1 o
0 A Working Committee comprising of Malaysian and British lawyers and politicians amended and adapted the Draft of the Reid Commission. Members of this Working Committee was appointed in conjunction by the British Government, the "Conference of Rulers" of the various Malay States and the Government of the pre-independence Federation of Malaya. See Tun Mohamed Suffian, Introduction to the Constitution of Malaysia, Kuala Lumpur, Government Printer, 2nd Ed., 1976, 11-13; R.H. Hickling, An Overview o f Constitutional Changes in Malaysia: 1957-1977 in Tun Mohamed Suffian, H.P. Lee, and FA . Trindade (Eds), The Constitution of Malaysia, Its Development: 1957-1977, Kuala Lumpur, Oxford University Press, 1978, 1-26, at 3.
^ The relevant instruments in this regard were the Federation of Malaya Agreement, 1957, Agreement Between Her Majesty and Their Highnesses the Rulars), the Federation o f Malaya Independence Act, 1957, 5 & 6 Eliz. 2, c. 60, the Federation of Malaya Independence Order in Council, 1957, and the Federal Constitution Ordinance, Ordinance No. LV of 1957.
20
Article 5, Constitution of Malaysia. See Appendix I. 21 Article 6, ibid. 22 Article 7, ibid. 2^ Article 8, ibid. 2<* Article 9, ibid. 25 Article 10, ibid. 26Article 11, ibid.
(h) non-discrimination and other rights in respect of education;^
(i) rights of property.^
Suggestions made to the Reid Commission that a set of principles of state policy be provided in the Constitution were not accepted. The Commission said:
Any guarantee with regard to such matters would be illusory because it would be unenforceable in law and would have to be in such general terms as to give no real security. Moreover, we do not think that it is either right or practicable to attempt to limit developments of public opinion on political, social or economic policy.^
The entrenched liberties in the Constitution of Malaysia are variously expressed to be limitations on executive acts and/or legislative action. Some of these rights are expressed in absolute terms, while others are framed in qualified terms. The prohibition of slavery^ and the prohibition of expropriation of property without adequate compensation,^ for example, are "unrestricted" rights. Most of the other Fundamental Liberties in the Constitution of Malaysia enumerate a host of qualifying and restrictive clauses. These restrictive clauses refer to such considerations as "public order", "security of the Federation", "public health" or "morality".
The Malaysian Court and Constitutional Rights
The High Courts in Malaysia have been empowered to issue to any person or authority, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the
27 Article 12, ibid. 28 Article 13, ibid. 29
Report, op.cit., at 70. 30
Article 6, Constitution of Malaysia. 31 Article 13(2), ibid.
enforcement of any of the fundamental liberties guaranteed by the C onstitution.^
Decisions of the Malaysian Court display a marked tendency to interpret the entrenched rights in a way that is focussed on the mere language of the constitutional provisions, rather than on the philosophical basis of the rights in the post-colonial constitutional system. The result has been a restrictive interpretation with the effect that constitutional rights in post-colonial Malaysia have proved illusory to citizens’ perceptions.
( a ) Right to Life & Liberty
The most important individual right under the Constitution of Malaysia for the purposes of this study is the right to "life" and "liberty". Article 5(1) provides:
No person shall be deprived of his life or personal liberty save in accordance with law.
Tne exact phrase "save in accordance with law" in Article 5(1) of the Malaysian Constitution appears in the Constitutions of Pakistan, 1956, 1 9 6 2 , and 1973,*^ and in the Constitution of Bangladesh.^ The corresponding provision in the Indian Constitution contains the clause "except according to procedure established by law ".^ This difference in phraseology between the provisions of the right to life and personal liberty in the
^ Section 1, First Schedule, read with Section 25, Courts of Judicature Act, 1964, Act No. 7 of 1964. Article 5 (2) of the Constitution reiterates this position in respect of the right to personal liberty.
By Article 121 (1) of the Constitution, there are two High Courts in Malaysia - the High Court in Malaya and the High Court in Borneo.
' i ' i
Article 5(2), Constitution of the Islamic Republic of Pakistan, 1956.
^ Para. 1, Fundamental Rights, Constitution of the Republic of Pakistan, 1962. Article 8, Constitution of the Islamic Republic of Pakistan, 1973.
^ Article 32, Constitution of the People’s Republic of Bangladesh (henceforth Constitution of Bangladesh).
Constitutions of Malaysia and India led the Malaysian Federal Court, ° in Karam Singh v Menteri Hal Ehwal Dalam Negeri,^9 to assert that Article 5(1) of the Malaysian Constitution refers only to the substantive provisions of law without regard to the procedural aspects. That being the case, the Court found that an order of detention was valid even though there were procedural defects in the order of detention. After noting that Article 5(1) of the Malaysian Constitution made "no mention of the word procedure ... Suffian F.J., (as he was then), in his concurring opinion in Karam Singh, observed that:
[in Malaysia,] ... detention, in order to be lawful, must be in accordance with law, not as in India where it must be in accordance with procedure established by law .^
It has been pointed out that:
the Malaysian courts have interpreted ‘law’ to mean enacted law, and therefore, ... Articles 5 and 13 impose restrictions only on the executive and not on the legislature ...
( b ) Right to counsel
The right of an arrested person in Malaysia to consult and be defended by a legal practitioner as provided by the C onstitution,^ has been interpreted in this way:
A balance has to be struck between the right of the arrested person to consult his lawyer on the one hand and on the other the duty of the police to protect the public from wrongdoing by
1 0 .
3^ The Federal Court has since been renamed the "Supreme Court" (Mahkamah Agung) by Constitution (Amendment) Act, 1983, Act No. A566 of 1983, in force from 1-1-1985.
39 [1969] 2 M.L.J. 129. 40 Ibid., at 148. 41 Ibid., at 150.
4^ Tun Mohamed Suffian, The Malaysian Constitution and the United States Constitution in L. Beer (Ed.), Constitutionalism in Asia, University of California Press, 1979, 129-139, at 135. 43 Article 5(3), Constitution of Malaysia.
apprehending them and collecting whatever evidence exists against th e m .^
( c ) Right to equality
A fundamental qualification to the right to equality under the Constitution of M alaysia^ is the protective discrimination in favour of the Malays and the natives of the states of Sabah and Saraw ak.^ In elaborating on the principles of "equality" under the Constitution of Malaysia, Suffian L.P. observed:
The equality provision is qualified. Specifically, discrimination is permitted within clause (5) of Article 8 and within Article 153.3 ... In considering Article 8 there is a presumption that an impugned law is constitutional, a presumption stemming from the wide power of classification which the legislature must have in making laws operating differently as regards different groups of persons to give effect to its policy ... .
The central fact of the Merdeka University c a s e ^ was that the Minister for Education rejected a petition to incorporate a private university in Malaysia, Merdeka University Berhad, which would principally use Chinese as the medium of instruction for entrants from Chinese independent secondary schools. The petitioners asked the High Court of Malaya for a declaration that the refusal of their petition by the Minister was an unreasonable and improper exercise of the discretion conferred by section 6 of the Universities and University Colleges A ct, 1971.^ The petitioners contended that under Article 152 of the Malaysian Constitution, using, teaching or learning any language other than the national Malay language was p erm itted .^ Abdoolcader J.,
^ Ooi Ah Phua v Officer-in-Charge, Criminal Investigation, Kedah/Perlis, [19751 2 M .LJ. 198, at 200 (per Suffian L.P.) quoting with approval Ramli bin Salleh v Inspector Yahya bin Hashim, [19731 1 M .LJ. 54.
4^ Article 8, Constitution of Malaysia.
46 Article 153, ibid.
4^ Datuk Haji Harun bin Haji Idris v Public Prosecutor, [1977] 2 M .LJ. 155,165.
^ Merdeka University Berhad v Government o f Malaysia, [1981] 2 M .LJ. 356.
49 Act No. A30 of 1971.
giving the opinion of the High Court, came to the finding that the proposed university would be a "public authority" within the meaning of the Constitution^1 and its purpose would be a "official purpose". The learned Judge concluded:
I am of the view that "using" [other languages as contemplated by Article 152(l)(a) of the Constitution] is in fact confined to use as a medium of expression or communication within the language or ethnic groups concerned and cannot extend as a medium of instruction as su c h .^
In deciding the appeal from the High Court decision in the Merdeka University case, the majority of the Federal Court Judges (Seah J. dissenting) upheld the decision of Abdoolcader J . ^ Suffian L.P. concluded:
As there is no right to use the Chinese language for an official purpose ... it was not unconstitutional and unlawful of Government to reject the plaintiffs petition to establish [Merdeka University].*^
( d ) Right to free speech
The rights to free speech, assembly and association in the Constitution of Malaysia are qualified by the right of Parliament to impose restrictions for considerations of "security of the Federation", "public order or morality" and other interests of s t a t e d The validity of such laws imposing restrictions cannot be questioned.^ Under a pre-Independence O rdinance^ a "licence" from the local police is required for holding a procession or meeting in public
^ Article 160, Constitution of Malaysia.
^ Merdeka University Berhad v Government of Malaysia, [1981] 2 M.LJ. 356, at 362. ^ Merdeka University Bhd. v Government o f Malaysia, [1982] 2 M.LJ. 243.
54 Ibid., at 252.
^ Article 10, Constitution of Malaysia. 56 Article 4(2)(b), ibid.
places. In Madhavan Nair v Public P r o s e c u t o rthe issue was the contravention, during a public speech of the applicant, of a condition of the police licence which proscribed speaking on the status of the official Malay language. The High Court, while agreeing that a police officer, acting under statutory powers, could not impose such conditions as would contravene a constitutional right, held that the circumstances in that case, under which the proscription was made, did not contravene the constitutional right of free speech.
Like Madhavan Nair, the issue in Lau Dak Kee v Public Prosecutor^ was the restrictive condition, imposed by the police, in the matter of public speech . In deciding this case along the lines of the previous decision, Mohamed Azmi J. remarked that:
[t]hese rights [to free speech, assembly and association] are, however, subject to any law passed by P arliam ent.^
( e ) Right to property
Although the Constitution of Malaysia prohibits the expropriation of property without adequate compensation,^1 the "deprivation" of property by "legislation"^ has been held to be unchallengable. In Arumugan Pillai v Government o f M a l a y s i awhich involved taxation assessment and recovery by the government, the Federal Court of Malaysia went so far as to say that:
whenever a competent legislature enacts a law in the exercise of any of its legislative powers, destroying or otherwise depriving a man of his property, the latter is precluded from questioning its 58 [1975] 2 M.LJ. 264.
59 [1976] 2 M.LJ. 229.
^ Ibid., at 230, emphasis added. ^ Article 23, Constitution of Malaysia.
^ Article 13(1), ibid. Article 13(1) is framed in the following way:
No person shall be deprived of property save in accordance with the law.
reasonableness by invoking Article 13(1) of the Constitution, however arbitrary the law might palpably b e .^
In an earlier decision, it was held that Article 13(1) does not restrict legislative powers but declares unconstitutional or prohibits executive acts of unlawful deprivation of property.6^ However, it has been observed that Article 13(1) is unlikely to be a ground for a decision of a court even in respect of executive acts. ^
B. Sri Lanka
Constitutional evolution since Independence and the question of Rights
Sri Lanka’s Independence Constitution was an adaptation of the colonial Constitution Order-in Council, 1946, based on the recommendations of a British Constitutional Commission of Inquiry, the Soulbury Commission.6^ This Commission had been appointed in 1943 pursuant to a Declaration of the British Government pledging the establishment in Sri Lanka, then known as Ceylon, of full responsible government under the British Crown in matters of civil administration, with defence and external relations continuing to remain under the control of the British government. The Declaration had invited proposals for a new Constitution from the Board of Ministers in Ceylon for examination by the Constitutional Commission.6^
In 1944, the Ceylonese Board of Ministers presented to the British government a draft constitutional scheme along the lines of a Dominion status for Ceylon. The draft scheme was later withdrawn because of differences with the British government on the scope of the terms of the proposed Constitutional
64 Ibid., at 30, per Gill C J .
^ Philip Hoalim v State Commissioner, Penang, [1974] 2 M.LJ. 100, at 103, per Ali F J. 66
LA . Sheridan and H.E. Groves, The Constitution of Malaysia, Singapore, Malayan Law Journal (Pte.) Ltd., 3rd Ed., 1979, at 76.
67
The Commission was headed by Lord Soulbury; hence the reference to the Commission as the Soulbury Commission. The other members of the Commission were Sir Frederick Rees and Sir Federick Burrows.
68
See JA.L. Cooray, Constitutional and Administrative Law of Sri Lanka (Ceylon), Sri Lanka, Hansa Publishers, 1973, at 54.
Commission. Despite the withdrawal of the draft scheme, the Soulbury Commission was appointed to examine the ministerial and any other constitutional scheme, consult various interests in Ceylon, and submit its recommendations. The Commission recommended, inter alia, that certain powers be reserved for the Governor-General in the proposed constitutional scheme. The concept of reserve powers of the Governor-General proposed by the Soulbury Commission was, however, not acceptable to politicians and the public in C eylon.^
The unfavourable reaction in Ceylon prompted the British government to modify the recommendations of the Commission through a White Paper in October 1945, incorporating a modified Constitution. In presenting the White Paper, modifying the Commission’s recommendations, the British Government expressed the hope that the proposed constitutional scheme of the Soulbury Commission would be acceptable to Ceylon as the basis for attaining Dominion status. In November 1945, the State Council in Ceylon accepted this Constitution as an interim scheme, and accordingly an Order in Council embodying the new Constitution was issued in May 1946. Upon attainment of Independence in February 1948, the 1946 Order in Council was modified by the Ceylon Independence Order in Council, 1947, and the Ceylon Independence Act, 1947.71
Rights of citizens were not entrenched in Ceylon’s Independence Constitution. During the process of drawing up a draft constitutional scheme by the Board of Ministers in Ceylon, for consideration by the Constitutional Commission of Inquiry, there was general agreement among the Board Ministers that there was to be a comprehensive Bill of Rights in the proposed scheme. Sir Ivor Jennings, who at that time was the principal constitutional adviser (unofficial) to the Ministers had "strong views" against the incorporation of the Bill of Rights in the proposals. It was his views that prevailed and the draft scheme of the Ministers, which was presented to the British government and considered
69 See ibid., at 55-56.
^ Ceylon (Constitution) Order in Council, 1946.
71 . .
by the Soulbury Commission did not contain proposals for entrenched rights in the future C onstitution.^
After the initial problems of transition in the new Dominion of Ceylon, a Parliamentary Committee, headed by the then Prime Minister, S.W.R.D. Bandaranaike, was formed in 1957 to consider, inter alia, the revision of the Independence Constitution to establish a Republic and to provide for guaranteed rights. The Committee, in 1959, approved the inclusion of a catalogue of justiciable rights in the Constitution. The death by assassination of Prime Minister Bandaranaike soon after the decision of the Committee hindered the implementation of the Committee’s recommendations. In 1965 there was an attempt by the ruling government to re-establish the 1957 Parliamentary Committee, but by then political opinion was in favour of a new C onstitution.^
In 1970, the Parliament of Ceylon (Sri Lanka) elected in the May 1970 national elections, constituted themselves the Constituent Assembly of the people of Sri Lanka, and in May, 1972 adopted an autochtonous Constitution for the Republic of Sri L an k a .^ It has been observed that the framers of the (1972) Republican Constitution of Sri Lanka were not inclined to incorporate a Bill of Rights in the proposed Constitution.7-* Rights w ere,. however, provided in the 1972 Constitution under pressure of public and political opinion. But although a number of constitutional rights were declared, there was no reference in the Constitution as to the specific machinery for the enforcement of these rights. The guaranteed rights were thus non-justiciable in a court of law .^
72
J. A. L. Cooray, op. cit., at 508-509. 73 See ibid., at 66-71.
74 See ibid., at 72-89. 75
L.J.M. Cooray-Peiris, Fundamental Rights, Judicial Review and the Constitutional Court o f Sri Lanka, (1979-1981) 1 LAWASIA, 24, at 26.
76
The rationale for this position was that:
the protection of Fundamental rights could not ... be allowed to ‘prevail absolutely5; ... in other words, fundamental rights could constitutionally be safeguarded only in so far as the supremacy of the National State Assembly was not unduly curtailed thereby.
Under the scheme of the 1972 Constitution, repugnancy of legislative measures to provisions of the declared rights could be raised before a specially- constituted Constitutional Court, but only before the legislation in question was passed by the National State Assembly (Parliam ent).^ A number of Bills were challenged before the Constitutional Court during its six odd years of existence, for inconsistency with the rights under the 1972 Constitution.^
The "Fundamental Rights and Freedoms" in the Constitution of 1972 included equality, non-discrimination, right to life and liberty, freedom of thought, conscience, religion and culture, freedom of speech and expression, and freedom of m ovem ent.^ These rights were made subject to restrictions in the interests of, inter alia, of "national unity and integrity", "national security", "public safety" and "public order", or for considerations of "Principles of State Policy" declared in the C onstitution.^
In the manner of the Constitution of the Republic of Ireland,^ * the Sri Lankan Constitution of 1972 had set down certain "Principles of State Policy" for guiding the State in the making of law s.^ These State Principles related in general to the social, economic and general welfare of the p e o p le d In addition the Principles declared, inter alia, that the objectives of the state (M.JA. Cooray, Judicial Role under the Constitutions of Ceylon/Sri Lanka, Colombo, Lake