The Book of Prof Shad.docx

G citizenship provisions i special position of the

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In addition to Part II, human rights are protected in many other Articles of the Constitution e.g. : Citizenship provisions (Articles 14-22) i. Special position of the Malays & the Natives of Sabah & Sarawak (Art.153) ii. Special rights of the states of Sabah and Sarawak (Arts. 161-161H) iii. Protection for public servants against unfair dismissal or reduction in rank (Art. 135) iv. Pension rights (Art 147) v. No taxation unless authorised by law (Art 96) vi. Right to seek electoral office and to vote (Arts 47, 119) vii. Procedural protection for preventive detainees (Art.151) SOME RIGHTS ARE PROTECTED BY ORDINARY LAW e.g. Employment Act, Trade Unions Act, Employees Provident Fund Act, Domestic Violence Act . Q. What difference does it make if rights are protected by the Constitution or by ordinary law? INTERNATIONAL PROTECTION In an age of globalization, the international law on human rights is becoming increasingly relevant. Compliance with human rights is often a pre-condition of trade and aid. The advent of the internet has opened up new and powerful channels of alternative information and mobilization. Injustice anywhere is regarded as a threat to justice everywhere. It is generally recognized that national sovereignty is a shield against external aggression. It cannot be used as a sword against your own people. The Universal Declaration of Human Rights has gained some recognition in our Human Rights Commission Act 1999. Malaysia has ratified several international instruments, though with some reservations, on the rights of women, children and workers. Once in a while, though rarely, a court will read international human rights law as part of our domestic law: Case of Noorfadilla Ahmad (2011). CEDAW was relied on. But cf: Beatrice Fernandez CATEGORISATION OF RIGHTS Some rights are available to all persons: e.g. Arts 5(1), 6, 7, 11, 13 Some rights are available to citizens only: Arts. 9, 10 and 12 Some rights (like freedom of religion, Islamic law, Malay custom, native law and custom in S&S, citizenship and language) are protected even in times of emergency: Art 150(6A). Rights that Parliament cannot violate in ordinary times: Articles 6, 7, 13(2), 5(3), 5(4). However emergency can suspend these rights. Rights that can be curtailed by Parliament but only on specified grounds: Arts 10(2)(a), 11(4) & (5). This category is protected against the executive only. Rights that are totally at the mercy of Parliament: Art 5(1). 12
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Q. Must the restrictions by Parliament be reasonable and proportionate? Under Art 5(1) does the concept of “law” refer to ‘lex’ or ‘jus’ and ‘recht’? There are conflicting approaches. Contrast Sivarasa Rasiah [2010] 2 MLJ 333 with AG v Chiow Thiam Guan (1983). TECHNIQUES FOR IMPOSING RESTRICTIONS Freedom per se has no value. It is what freedom is for. It is the use to which it is put. It is the sense of responsibility with which it is exercised. Human rights provisions everywhere are subject to many legally authorized limits, derogations and restrictions. The nature and extent of these restrictions, and the manner of their enactment, are important in determining whether in a State a fair balance exists between freedom and responsibility and between the rights of citizens and the might of the State.
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