The Book of Prof Shad.docx

Constitutionality it remains to be seen whether the

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Constitutionality: It remains to be seen whether the courts will review the constitutionality of some parts of this law. Issues germane for discussion are: i. The total ban of street protests without linking it to public order and national security may well fall foul of Article 10(2). 76
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ii. The ban on people under 21 organising an assembly may be challenged as a violation of Article 10 (free speech) and Article 8 (equality). It is noteworthy that case law has established that parliamentary restrictions on human rights must be reasonable by objective standards (Hilman Idham). iii. One of the grounds on which the police may exercise the power to regulate assemblies is “the protection of the rights and freedom of other persons” (sections 2, 3 and 15). These words of limitation do not occur in Article 10(2), and may therefore be seen as an extra constitutional limitation. In most countries including the US and Malaysia, courts have accepted implied limits on human freedoms and have often carved out common law restrictions on fundamental freedoms. In sum, the Act has many wholesome features. But it is defective in that it imposes no objective restraints on the police and ministerial discretion. Nevertheless, as judicial review is not excluded, courts may provide a proper balance between police powers and fundamental freedoms. Whether the courts will play such a balancing role remains to be seen. 77
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8. POWER TO COMBAT SUBVERSION – ARTICLE 149 INTRODUCTION An unusual feature of the Malaysian Constitution is that special powers to deal with crises are divided into two types — the authority to deal with subversion under Article 149 and the power to combat emergency under Article 150. The nature and extent of the powers under the two Articles are quite different 84 . So is their impact on constitutionalism and rule of law in the country. DEFINITION OF SUBVERSION “Subversion” has been defined in Article 149(1) to refer to the following: causing substantial number of citizens to fear organised violence against persons or property; exciting disaffection against the Yang di- Pertuan Agong or any Government in the Federation; promoting feelings of ill-will between classes of the population in such a way as is likely to cause violence; procuring alteration, otherwise than by lawful means, of anything by law established; prejudicing the maintenance of any supply or service to the public; or causing prejudice to public order or national security. The definition of subversion is of a broad, catch-all nature. Narcotic trafficking and secret society activities are (rightly) covered within the concept of subversion. However, even local hooliganism, vigorous criticism of official policies, industrial action like strikes, mobilizing of voters to throw out the Government in power, activities of bookies and call to taxpayers to withhold payment could conceivably fall within the perimeters of subversion. Only the good sense of those in power is a safeguard against overzealous use of this far-reaching law.
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