Enforcement of Fundamental Rights in Msia

A. Malaysian Law: Para 1, CJA

Para 1 .......
Objective: to enforce the FR in Part II of the Consti
B. Para 1 is based on Art 226 Indian Consti
Art 226: .....every HC shall have power,.....
In urgent cases, go straight to SC under Art 32- Vishaka & Mukthi Morcha
C. 4 weaknesses in the Msian Consti
1. No provision like Art 32 of the Indian Consti
2. The unsatisfactory and precarious position of Para 1
- subject to repeal by the Parliament and at the direction of the Executive
- should be in the Fed. Consti, x CJA
3. Where is Art 137?
-in Rule 137 of Federal Court Rules
- x be compared with the constitutionally mandated art 137 of the Indian Consti
4. Order 53 is used to restrict the enforcement of FR, art 226 & 32 not restrained by rigid
procedural rules
D. Enforcement of FR: The Malaysian Dilemma
Position before Tan Tek Seng: Positivistic Approach
- the narrow and strict construction of the constitution was once taken in Karam Singh
and Loh Wai Kong s cases
- personal liberty should include freedom of movement and freedom from unlawful
physical confinement
Position after Tan Tek Seng
- Para 1 was used to enforce FR
- in Tan Tek Seng, procedural fairness was sourced from the combined effect of Art 5(1)
& Art 8(1) whenever livelihood was adversely affected by an administrative action to
extend our FR
- in Abdul Ghani Haroon, the HC issued a Habeas Corpus to release the detainees from
the unlawful detention of ISA, ordered the police not to rearrest the detainees within 24
hrs upon their release as the initial arrest was unlawful

- few Msian courts & judges are in favour of this invocation of implied FR
-such as Sugumar Balakrishnan
- Abdul Malek, Jinggut, Muhd Juzaili are still pending
3. We are one step forward, one step backward, and a few steps backward. From Karam
Singh to Tan Tek Seng to the latest Muhd Juzailis appeal before the Federal Court that
leave of the FC is needed to challenge the constitutionality of law. Indians and S. Africans
use their respective Constitution to protect themselves. But we turn the Constitutions and
laws against ourselves.
4. The Msian Constitutional Dilemmas
A) no preamble: disastrous for nation building
B) Part I is inadequate, defective, distorted by the Executive: Kalimah Allahs case
C) Part II is too narrow and have too few express fundamental liberties. Should be
restated as Bill of Rights
D) No directive principles of State Policy and Fundamental Duties like the Wish List of
the Indian Constitution
E) No enforcement of FR and remedy provisions like art 226 and 32 of Indian consti and
S 38 of SAF consti
F) Judicial power of the superior courts was removed fr Art 121
G) Independence of judiciary compromised- political interference in the appointment of
judges
H) Part III: Citizenship chapter faulty. Out of touch with the 21st century norms
I) Part VIII: Safeguards for fair & free elections had been repealed
J) Art 121A: caused many constitutional problems &controversies
K) Art 152: Shortsighted on BM only
L) Wed & constitutional review merged into Order 53
Conclusion: best follow SAF which has a dream constitution in the 21 st century. PAJA,
PAIA, PEPCID- new statutes in compliance with the constitutional benchmarks