The Book of Prof Shad.docx

The act of parliament will be subject to judicial

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a constitutional amendment. The Act of Parliament will be subject to judicial review on constitutional grounds. If an amendment is attempted it will have to satisfy the requirements of Articles 159 and 161E i.e. a special two-thirds majority and the consent of the Conference of Rulers and/or the Governors of Sabah and Sarawak. ISA and Article 8 : In Ahmad Yani Ismail v IGP [2003] 4 MLJ 636, the court rejected the argument that a detention under the Internal Security Act violates the promise of equal treatment under Article 8 of the Constitution. The grounds as furnished to the detainee indicated that there was no unreasonable or arbitrary action contrary to Article 8. There was instead a reasonable nexus between the allegation of fact and the purpose for which the power had been exercised. There was a proximate connection between the ground and allegations of facts on the one hand and the object of the ISA, on the other, namely national security consideration. ISA and freedom of religion: In Minister of Home Affairs v Jamaluddin Othman [1989] 1 MLJ 418 a convert out of Islam who was actively engaged in seeking to convert others to his new-found faith was detained under the ISA. The Court held that Article 149 authorises curtailment of rights under Articles 5, 80
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9, 10 and 13 but not the right to religion under Article 11. 86 A contrary view is expressed in Ahmad Yani Ismail v IGP [2005] 4 MLJ 636. In this case the detainees were involved in the activities of the Jemah Islamiah whose teachings, it was asserted, involve the use of armed violence to promote religious objectives. The High Court held that despite the fact that Article 11 of the Federal Constitution is not mentioned alongside Articles 5, 9, 10 or 13, this does not mean that Article 11 of the Federal Constitution prevails or overrides Article 149. This view is correct but it is equally relevant to observe that the clear intention of the Constitution is that Article 149 can prevail over Articles 5, 9, 10 and 13 only. Article 11 cannot override fundamental liberties in Articles 6, 7, 8, 11 and 12. In cases in which public order is threatened by religious intolerance and religious-inspired violence, then the proper approach should be to regard the undesirable activity as outside the constitutional right to profess and practice religion under Article 11(1). Alternatively, such undesirable activity could be punished under a law framed under Article 11(5). It is noteworthy that Article 11(5) does not permit any act contrary to public order, public health and morality. The ruling in Jamaluddin had acknowledged that if public order is threatened, the ISA can be invoked. However, on the facts of the case, the court held that the ISA should not be used to punish peaceful exercise of freedom of conscience. Violation of rights must be explicitly authorized: In Lee Mau Seng v Minister for Home Affairs, Singapore [1971] 2 MLJ 137 it was held that the guarantees of Articles 5, 9, 10 and 13 continue to apply unless explicitly excluded by the anti-subversion law. This point was dramatically illustrated in the case of Abdul Ghani Haroon v Ketua Polis (No. 3)
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