The Book of Prof Shad.docx

Our constitutions approach to rights protection in

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OUR CONSTITUTION’S APPROACH TO RIGHTS PROTECTION In accordance with the humanist tradition of the era in 1957, the drafters of Malaysia’s document of destiny incorporated into the basic charter a number of political and civil rights. At the same time they specified the permissible grounds on which each right could be restricted by law. Rights & restrictions i. Personal liberty – any restriction imposed by law ii. Property - any restriction imposed by law iii. Free speech - 14 restrictions iv. Equality - 6 restrictions v. Movement - 5 vi. Association - 5 vii. Religion - 4 viii. Assembly - 2 ix. Prohibition on Forced labour – 1 x. No double jeopardy - 1 10
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This interesting approach reflects a gradation amongst human rights. It implies that Parliament or the government cannot impose non-specified restrictions like ‘public interest’, ‘economic health’, ‘national harmony’, ‘good governance’, ‘efficiency’, ‘good order’ etc. The restriction must be constitutionally permitted. It also treats each human right as distinct from each other rather than as an interconnected offshoot of the same tree. An alternative approach could have been to specify a common list of permitted restrictions and allow Parliament to subject every right to the relevant restrictions. Most of the rights enshrined in Articles 5-13 are civil and political rights (called first generation rights). Generally, socio-economic rights (the second generation, positive rights) and development rights (third generation rights) were left out from the chapter on fundamental liberties. ARTICLES 5-13 Article 5(1) – “Life” & “personal liberty” shall not be deprived save in accordance with “law”. “Life”, “liberty” and “law” are rich with multiple meanings. Article 5(2) – Habeas corpus Article 5(3) – Right to know grounds of arrest and to consult with a lawyer Article 5(4) – Right to be produced before a Magistrate within 24 hours. Q. Do detainees have protection against torture, right to an expeditious trial, constitutional right to bail, and right to communicate with their family. Do detainees have a right to vote at a General Election? Does an applicant for habeas corpus have a right to be present in court when his petition is heard? Is there protection against cruel and oppressive punishments? Article 6 – Abolition of slavery & forced labour Article 7(1) – Criminal laws should not be backdated Article 7(2) – No double jeopardy Article 8 – Except as permitted by the Constitution, there should be equality before the law and equal protection of the law Article 9(1) – Prohibition of banishment Article 9(2) – Freedom of movement Article 10(1)(a) – freedom of speech and expression Article 10(1)(b) – freedom of assembly Article 10(1)(c) – freedom of association Article 11 – freedom of religion Article 12 – rights in respect of education Article 13 – right to property RIGHTS IN OTHER CONSTITUTIONAL PROVISIONS 11
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In addition to Part II, human rights are protected in many other Articles of the Constitution e.g. :
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