The Book of Prof Shad.docx

In malaysia the following techniques exist for

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between freedom and responsibility and between the rights of citizens and the might of the State. In Malaysia, the following techniques exist for restricting the entitlements of Part II of the Constitution: i. Restrictions Imposed by ordinary legislation ii. Restrictions imposed by legislation against subversion iii. Restrictions imposed by emergency legislation iv. Restrictions Imposed by subsidiary legislation: Eng Keock Cheng v PP [1966] 1 MLJ 18 Restrictions Imposed By Constitutional Amendments Cf: Note the “basic structure” debate – that fundamental rights are part of the basic structure that cannot be tinkered with. The ruling coalition’s success at achieving a two-thirds majority at ten out of thirteen General Elections has made it possible for it to amend the Constitution as and when it felt necessary. Restrictive Judicial Interpretation Through judicial interpretation of the constitutional provision, the courts can expand the horizons of freedom or narrow them down further. The superior courts of Malaysia have a mixed record in this area. Tan Boon Liat v Menteri [1977] 2 MLJ 108 (Art 151) Ooi Ah Phua v Officer in Charge Kedah/Perlis [1975] 1 MLJ 93 (Art 5(3)); Johnson Tan Han Seng (1977) (Art 8 v 145). REMEDIES: ENFORCEMENT MECHANISMS 13
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Rights without remedies are like lights that do not shine and fires that do not glow. An effective enforcement mechanism is crucial to the human rights quest. Judicial enforcement In Malaysia human rights provisions contained in local laws are enforceable in the courts on the petition of any aggrieved party. Denial of personal liberty without authority of law can attract habeas corpus under Article 5(2). Other remedies in administrative law like a declaration, mandamus or an order of damages may also be utilized. However, it is noteworthy that Malaysia does not have a Constitutional Court. Neither do we have public interest litigation. Human Rights Commission Violations of liberties can also be investigated by the Human Rights Commission. Special Tribunals The Commission of Enquiry Act permits the appointment of special tribunals and enquiries for any purpose including reporting on human rights. Parliamentary scrutiny There is some scope for parliamentary oversight of the human rights scene through debates, motions and Question and Answer session. A parliamentary committee on human rights could keep things in check and also involve citizen participation. Regrettably the Malaysian Parliament does not play a role in this arena. “The Fourth Estate” The internet, the print media through investigative journalism, radio and TV can inform, educate and mobilize opinion. In every society there are valleys of despair where the rays of light do not penetrate. A great deal can be done by the media to expose abuses and to provide expeditious, informal and inexpensive remedies. NGOs The intervention of NGOs and service centres run by political parties can also help to provide an informal means of redress against human rights abuses.
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