Human Rights

Study Guide

a. Identify the concept of human rights with reference to the Federal Constitution, Universal Declaration of Human Rights and the Human Rights Commission of Malaysia Act 1999.

b. Explain the impact of human rights law on statutory interpretation.

c. Explain the impact of human rights on the common law.

Past Year Questions

Dec 2002 Q1, June 2005, Pilot  Q1, June 2009 Q1, Dec 2011 Q1

The Federal Constitution is said to entrench certain fundamental rights for the protection of the individual. Every citizen is protected under the Federal Constitution which entrenches certain fundamental liberties. 

In relation to the Malaysian legal system:

(a) define ‘human rights’ /explain what is meant by fundamental liberties

(b) state TWO functions of the Human Rights Commission under the Human Rights Commission of Malaysia Act 1999; and 

(c) Explain any (FIVE) provisions which protect human rights as enshrined in the Federal Constitution.
Suggested Answer

This question on the Malaysian legal system tests the candidates’ knowledge on ‘human rights’ and the functions of the Human Rights Commission as provided for in the Federal Constitution.

a. Definition of Human Rights

Human rights refers to the basic rights that all human beings are entitled to enjoy. Human rights is defined in s.2 Human Rights Commission of Malaysia Act 1999 to mean the fundamental liberties provided for under the Federal Constitution of Malaysia. The phrase, ‘Fundamental Liberties’, refers to certain rights, which may be considered as basic and essential to ensure the freedom of the individual. These rights are stated in the Federal Constitution and are said to be entrenched or enshrined because these rights cannot be altered or taken away altogether unless the Constitution itself is amended. This would be quite difficult as it requires a majority of two thirds of all the members of Parliament.

The main liberties so entrenched in the Federal Constitution are as follows:

b. Functions of Human Rights Commission (SUHAKAM)
By s.4(1) Human Rights Commission of Malaysia Act 1999, the functions of the Human Rights Commission (SUHAKAM) are:

• to promote awareness of, and provide education, relating to human rights;
• to advise and assist the Government in formulating legislation and procedures and recommend the necessary measures to be taken;
• to recommend to the Government with regard to subscription or accession of treaties and other international instruments in the field of human rights; and
• to inquire into complaints regarding infringements of human rights.

c. Provisions Relating To Human Rights in FC
The provisions relating to human rights in Malaysia refer to the fundamental liberties as stated in Part II of the Federal Constitution. These include the following:

• No person may be deprived of his life or personal liberty except in accordance with the law.
 By this provision, individuals are protected from being unlawfully imprisoned or put to death. An individual who is unlawfully detained may obtain an order of the court through a writ of habeas corpus. This is an order of the court requiring that he be lawfully charged in court or be released. However, this right is not absolute. A person may still be deprived of his life or liberty in accordance with the law. Thus the Internal Security Act 1960 (which was passed under powers conferred by Art. 149 of the Constitution) permits, among other things, preventive detention.

• No person may be subject to slavery or forced labour
. The Constitution recognises that individuals should not be regarded as the property of others and thus bans all forms of slavery and forced labour. However, this right of the individual is given subject to the paramount interests of the nation. Thus, Parliament may make laws providing for compulsory national service.

• No person can be punished under a law which was not in force when the alleged crime was committed.
This protects the individual from being charged with a crime that was not recognised as a crime at the time the alleged wrongful act was done. Thus, laws against crimes cannot be passed with retrospective effect.

• Citizens cannot be discriminated against
in relation to appointment to any office or employment under a public authority, or in relation to acquisition of property, establishing or carrying on of any trade, business, profession, vocation or employment, merely on grounds of religion, race, descent or place of birth. However, this right is subject to Art. 153 of the Federal Constitution, which permits the granting of special privileges to bumiputras.

• Citizens cannot be discriminated against
in relation to the providing of education, merely on grounds of religion, race, descent or place of birth. This again is subject to Art. 153, which permits the granting of special privileges to bumiputras.

• Freedom of religion. 
The Constitution also entrenches the right of the individual to profess, practise and propagate his own religion. However, as Islam is the religion of the country, restrictions may be placed upon the propagation of other religions among Muslims.

• No citizen may be banished from the country.
However, this right is subject to exceptions whereby the Federal Government is permitted to deprive a person of his citizenship under certain circumstances.

• Every citizen has the right to freedom of speech, peaceful assembly and association.
However, in the interests of security, public order or morality, Parliament may impose certain restrictions. For example, the Sedition Act 1948 provides that it is an offence to question the sovereignty, powers and prerogatives of the rulers and the special position of the Malays. Further, the freedom of speech does not entitle a person to defame another. A person defamed has a right to sue under the law of defamation. 
(Candidates are only expected to explain any THREE of the above rights.)