The role of fundamental liberties in the evolution of Malaysia as a democratic society
After World War II, the British planted the seed of democracy in Malaya. In 1955, Malayans were empowered to elect their representatives to the Federal Legislative Council. Two years later, Malayans were granted the right for self-determination and thus the Federation of Malaya became an independent sovereign country. Malaysia as a political entity came into being on 16th September 1963 by federating the Federation of Malaya with Sabah, Sarawak and Singapore. However, in 1965, Singapore separated from Malaysia.
Throughout the history of Malaysia, there is a continuity of parliamentary democracy with regular election being held except during the aftermath of 1969 racial riots, which democracy was pronounced dead and parliament was suspended from 15 May 1969 until 20 Feb 1971. 
It is beyond dispute that democratic system is the preferred system for Malaysians as it provides the only long-term basis for managing competing racial, religious and cultural interests in a way that minimizes the risk of violent internal conflict within a plural society.
In 1991, the Prime Minister YAB Dato’ Seri Dr Mahathir Mohamad in a working paper presented to the Malaysian Business council, unveiled the national aspiration plan called Vision 2020. Vision 2020 is about the aim that Malaysia becomes a fully developed country by the year 2020. There are 9 challenges documented in the working paper. The third challenge is fostering and developing a mature democratic society. In order to achieve these common goals, Malaysia has to benchmark its democratic system with the others fully developed countries.
Democracy is more than the ritual casting of a ballot at multi-party elections. True democracy involves participation by the people at all levels so that they have a voice in the discussions and decisions by which they are governed. But democracy must not only govern the political process, it should pervade all sphere of society, including economic and social life.
As Malaysia develops and its citizens becomes better educated and more sophisticated, the demand for civil and political rights has become louder. For increasingly larger segments of Malaysian society, a full stomach is no longer enough. The barometer for a mature democratic society is measured by the fundamental liberty enjoys by its peoples.
Fundamental Liberties Guaranteed by the Written Constitution
There are nine rights regarded as fundamental in the Malaysian Constitution (Federal Constitution) namely liberty of the person (Article 5); freedom from slavery and forced labour (Article 6); protection against retrospective criminal laws and repeated trials (Article 7); equality (Article 8); prohibition of banishment and freedom of movement (Article 9); freedom of speech, assembly and association (Article 10); freedom of religion (Article 11); rights in respect of education (Article 12) and rights to property (Article 13).
According to Dr Shad S Faruqi, there are 4 categories of restriction on fundamental liberties in the Federal Constitution namely:
Within the above context, the following analysis is to identify the restrictions and look into proposal to overcome them.
1. Restrictions by ordinary legislation enacted under the authority of the constitutional provision conferring the right
An examination of the constitutional provisions would disclose that there are two types of rights namely absolute rights and qualified rights. Absolute rights are those without restriction or qualification. Qualified rights refer to the provisions concerned permit laws to curtail the exercise of such rights under certain conditions. Take for instance, freedom from slavery is an absolute rights guaranteed by the Federal Constitution. In the other hand, freedom of speech is a qualified right.
Although Article 10(1)(a) grants to all citizens the right to freedom of speech and expression, Parliament may under Article 10(2) by law restrict this right under 9 grounds namely security of the Federation, friendly relations with other countries, public order, morality, privileges of Parliament, privileges of Legislative Assembly, contempt of court, defamation and incitement to any offence.
As compare to the First Amendment in the Constitution of the United States of America (USA), Article 10(1)(a) of Federal Constitution is too restrictive. The First Amendment stipulated that among other things USA Congress should make no law prohibiting the free exercise or abridging the freedom of speech. As what Harding concluded Article 10 is remarkable for what it takes away rather than for what it gives. 
The idea that restrictions are sometimes necessary on political rights is common place in others jurisdiction. However, Article 10 fails to place any real restrictions on the restrictions. They are widely drafted that in practice there are likely to be very few possible restrictions which could not be said to come within the kinds of restriction permitted by Article 10, especially as there is nothing in Article 10 to suggest that the courts have any right to review the necessity of legislation restricting one of these rights.
In Madhavan Nair v PP  2 MLJ 264: The Malaysian High Court had declared that the use of subjective words in article 10(2) like “necessary or expedient” rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision.
In India, there is a judicial requirement that derogating pieces of legislation must be “reasonable restriction” (Article 19(2) of the Indian Constitution). Indian Constitution requires that the restrictions, even if within the limits prescribed, must be reasonable and the court would be under a duty to decide on its reasonableness.
According to Article 10 of European Convention on Human Rights, the Parliament of member states are allow to restrict political rights only so far as is compatible with the requirements of a democratic society.
With regard to Malaysia, when infringement of the right is alleged, the scope of the court’s inquiry is limited to the question whether the impugned law comes within the orbit of the permitted restriction. There would be no substantive challenge to these laws even if they were overly harsh or unreasonable. Prima facie, this would seem to indicate that so long as parliament fulfilled all the procedural requirements in the passage of laws restricting free speech
The position in India and European Community is preferred, as it has allowed the judiciary to scrutinise the enabling provision of the constitution on the grounds of reasonableness and compatibility of a democratic society respectively.
2. Fundamental rights curtailed by legislation against subversion.
Powers against subversion under Article 149 Federal Constitution has curtailed the practical operation of fundamental rights. This provision also introduced the broad notions of national security into Malaysia. Legislations enacted under Article 149 may be inconsistent with liberty of the person (Article 5); freedom of movement (Article 9); freedom of speech, assembly and association (Article 10) and rights to property (Article 13) and yet remain constitutionally valid.
Article 149 of the 1957 Constitution (Merdeka Constitution) has a clause that such laws would automatically lapsed upon the expiration of one year from the date on which they came into operation. However the sunset provision was removed in the Constitution Amendment Act 1960 and the position now is such laws would continue to exist indefinitely, unless both Houses of Parliament passed resolutions annulling them.
One of the examples of such legislation is the Internal Security Act 1960. (ISA). ISA permits the Executive to detain suspects without the filing of formal charges. During the 1960s, ISA was intended to deal with the threat of communist. However, in the case of Theresa Lim Chin Chin v Inspector-General of Police  1 MLJ 293: The court ruled that ISA is valid and from the wording of the provision of the Act there is nothing to show that it is restricted to communist activities. It was held that Art 149 was not confined to the communist insurgency.
Since the terrorist attack on the World Trade Centre Twin Towers in New York City on September 11, 2001, United State of America (USA) has introduced the Patriot Act 2001.  This Act empowered the Attorney General to sign detention order to detain without trial. As both ISA and Patriot Act is the law on preventive detention, it will be interesting to make a comparison.
The following table summarised the difference between these two legislations.
Malaysia Internal Security Act 1960
USA Patriot Act 2001
To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.
To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes
Applicable to all persons. (Both citizens and
Applicable to alien (Non-US citizens only).
Judicial review is restricted.
Section 8B and 8C severely limit the court’s ability to inquire into the legality of a detention except on questions of compliance with procedures.
Judicial review in terms of habeas corpus proceedings is provided by the Act.
Section 73 allows the police to detain for 60 days any person who may act "in a manner prejudicial to the security of Malaysia." The Home Minister may authorize indefinite detention renewable every two years ad infinitum.
The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision provided for the person to be detained for up to six months.
The Court ruled that Attorney General is authorized to detain aliens as long as removal is reasonably foreseeable. 
Restricted conditions after released
Those released before the end of their detention period are subject to "imposed restricted conditions" for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country
Either deportation or let free. No restricted conditions after released.
No equivalent provisions.
Every 6 months, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the
reporting period, the details of the detainees and the grounds for the detention.
The Advisory Board shall review the detention every 2 years.
The Attorney General shall review the detention every 6 months
No equivalent provisions
The Act shall cease to have effect on Dec 31, 2005.
As USA, the leader of the democracy and developed world, has accepted as the norm laws, which infringed on fundamental rights, this has given greater credence to the denial of fundamental liberties in the context of other countries. The argument that since USA has the Patriot Act and thus Malaysia should continue to use ISA is untenable. From table 1, one can conclude that ISA is far more draconian law and offered less procedural protection on fundamental liberties as compare to Patriot Act.
It is submitted detention without trial is at odds with the contemporary international human rights standard as this is an infringement on fundamental rights. Others laws such as Penal Code and Police Act with more substantial checks and balances already exists for maintaining peace and security. Steps must be taken to ensure that this balance exists in practice and actions by the Executive must be carried out in conformity with international human rights standards.
3. Legislation to combat an emergency may suspend all fundamental rights except freedom of religion
Article 150 of the Federal Constitution gives extraordinary powers to the Executive to act when a State of Emergency is declared. Any Act enacted under Article 150 need not comply with all fundamental liberties except related to religion (Article 150(6)(a)) and continues in force indefinitely until parliament otherwise determines, whether or not the circumstances giving rise to the emergency have terminated.
In the 1957 Merdeka Constitution, a proclamation of emergency and laws passed during such an Emergency shall cease to be in force at the expiration of two months from the date of proclamation. They would only continue to have force if they have been approved by a resolution of each House of Parliament before the expiry of the specified period. Such sunset provision was meant to prevent abuses by the Executive.
However, the Constitution Amendment Act 1960 removed this highly desirable protective mechanism by providing that neither the Proclamation of Emergency nor the laws passed automatically lapse after two months. Instead, they remain in force indefinitely, until both Houses of Parliament pass annulling resolutions 
As the consequences of this 1960 amendment, there are 4 proclamations of Emergency that are still valid and in force today as none of them had been revoked or annulled . The 4 proclamation of Emergency are
4. Political crisis in Kelantan only (1977)
In the Constitution (Amendment) Act 1981, a new Clause (8) was inserted to Article 150, which provides that the Courts have no jurisdiction to entertain any application to challenge any State of Emergency proclaimed by His majesty and any laws made there under – thus all questions concerning emergency powers would be left to the absolute discretion of the Executive.
This 1981 amendment effectively places the action to invoke the emergency powers beyond judicial review.
The combine effects of 1960 and 1981 amendments substantially and extensively infringed upon fundamental concepts underlying the 1957 Merdeka Constitution. These amendments all worked to the detriment of the individual and to the benefit of the Executive.
Unrestrained invocation of emergency powers poses a threat to the rule of law and democracy in Malaysia. Lim Kit Siang, the then Parliament Opposition Leader, proposed a review of the exercise of the emergency powers under Article 150 and the formulation against abuses of emergency powers.  His proposals are as following:
It is submitted the Federal Constitution, providing that emergency legislation can be inconsistent with any provision of the constitution except those concerning religion, citizenship and language is wholly incompatible with the contemporary international standard. A detail review should be carried out to protect the fundamental liberties of the citizens during emergency period.
4. Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law
The constitutional guarantees of fundamental liberties are also not entrenched in that they are protected from the amending powers of Parliament. It is technically possible under Article 159 of Federal Constitution for fundamental liberty provisions to be altered, restricted or even done away with by two-third-majority vote in a constitutional amendment.
However, the Indian Supreme Court thought otherwise. In the Indian case of Kesavanand Bharai v The State of Kerala A.I.R. 1973 SC 1461: Supreme Court of India had to consider the scope and extent of the power to amend the Indian Constitution whether certain provisions can be corroded by the Parliament thru the process of constitutional amendment. The court ruled that the doctrine of basic structure is effective in the Indian Constitution. The basic structure of Indian Constitution said to consist of the following features.
· Supremacy of the constitution
· Republican and democratic forms of Government
· Secular nature of the constitution
· Separation of power between legislative, executive, judiciary
· Federal character of the constitution
Every provision of the Indian constitution can be amended provided the basic foundation and structure of the constitution remains the same
In favour of this doctrine, it can be said that it provides an insurance against legislative over exuberance. It safeguards the basic structure and value of the constitution against the power of transient political majorities.
In Loh Kooi Choon v Government of Malaysia  2 MLJ 187, Federal Court declined to follow the Kesavanand doctrine and held that fundamental rights enshrined in Part II of the Federal Constitution were not inviolate and could be amended by Parliament.
The courts’ reluctance to follow Indian case on civil liberties and constitutional law, which have resulted in lesser rights being enjoyed by a Malaysian citizens than Indian citizens.
Tommy Thomas  advocated for the concept of “Basic Structure” to be applied in Malaysia. He argued that the acceptance is the only way for the courts to live up to its constitutional duties in preserving and protecting the Constitution in the face of the numerous constitutional amendments by parliament and the frequent use of Emergency Powers by the Executive.
It may be useful to recall what Justice Jackson said in the case of West Virginia State Board of Education v Barnette 319 US 624: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the Courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Judicial interpretation on the Fundamental Liberties
As the Federal Constitution with a chapter on fundamental liberties, the judiciary has been given the vital role of reconciling the conflicting demands between the fundamental liberties of the citizens and responsibilities of the State. Violation of the fundamental liberties enshrined in the Federal Constitution can be remedied in the Courts through writ of habeas corpus, mandamus, certiorari and others.
Tun Suffian in Re Datuk James Wong Kim Min  1 LNS 124 observed that “The laws affect the liberty of the subject and in the case of doubt or ambiguity, they should be interpreted against the authority and in favour of the citizen”.
Raja Azlan Shah declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd  1 LNS 143: “Unfettered discretion is a contradiction in terms… Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great poers and influence are exercised in accordance with law.”
The above statements reflect the bright side of liberal constitutional interpretation in favour of the peoples. However, the Courts tend to have different approach on interpreting the constitutional provisions. This can be seen from the survey of cases involving interpretation on the meaning of “life” and habeas corpus proceedings.
The Meaning of “Life”
The Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor  2 CLJ 771, Gopal Sri Ram JCA said: “The expression “life” appearing in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters that go to form the quality of life. Of these are the rights to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment. The judgement of the right to life incorporates right to livelihood. “
However, in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan  4 CLJ 105, the Federal Court disagreed with the interpretation of Tan Tek Seng and viewed that the matters which form the quality of life has been enshrined in the Part II of Federal Constitution under the heading of Fundamental Liberties.
In short, Court of Appeal in Tan Tek Seng has expanded the meaning of “life” in Article 5(1). However, Federal Court in Sugumar reversed the liberal trend set by Tan Tek Seng and have used a restrictive approach in interpreting the provision. In Sugumar case, the judgement is in favour to the State but it is the opposite for Tan Tek Seng.
Habeas Corpus Proceedings
In the case of Abdul Ghani Haroon v Ketua Polis Negara & Another  3 CLJ 606, Justice Dato Hishamuddin Yunus granted the habeas corpus application. The court used the inherent powers – s25(2) of the Courts of the Judicature Act 1964 read with Para 1 of the Schedule of the same act – to make a further order that the police be restrained from rearresting the applicants at least for a period of 24 hours. Dato Hishamuddin said: “Due to heavy presence of police personnel, should rearrest immediately occur, that would have been a grave injustice. Such an action on the part of the police would make a mockery not only of my judgement, which I had delivered, but also of the whole habeas corpus proceeding and of the constitutional guarantees under art 5 of the Constitution.“
This judgement reflects the judicial creativity in interpreting the provisions of the legislation. This is the landmark judgement in which first time a further order of 24 hours no-rearrest assurance was made. Prior to this judgement, even one succeeded in the habeas corpus application may not taste the fruit of the judgement long enough. For instance, a politician cum lawyer Karpal Singh was rearrested at a roadblock while he was on his way home to Penang with his family nine hours after obtaining the writ of habeas corpus from the High Court of Ipoh in 1988.
The Malaysian court is more notable for its conservatism than activism. Malaysian judges should in future play a more activist role in carrying out their constitutional functions. They should adopt a purposive, liberal and broad view of constitutional rights and concepts.
It is submitted that the Court should expand, not limit the Constitution’s scope. The provisions on fundamental liberties must be interpreted in such a way that is promotes democracy and fairness.
In 1948, the Universal Declaration of Human Rights (UDHR) was adopted as a “common standard of achievement for all peoples and all nations”. Today, the UDHR has been supplemented by a vast array of international standards. Of the 25 major international human rights instruments, Malaysia has ratified only five namely  :
Both ICESCR and ICCPR have come into effect in the year of 1976. Calls for ratification has been made by numerous quarters including the Parliament opposition leader who moved a Parliament motion in 1976 and by Malaysia Human Rights Commission in its year 2000 Annual Report. 
As of 1 April 1999, there are 141 countries out of 195 countries in the United Nations ratified ICESCR, 144 for ICCPR .
It is submitted the Government of Malaysia should take initiative to ratify the ICESCR and ICCPR and ensure the domestic law compliance with the conventions. In the age of globalisation, the international law on human rights is becoming increasingly relevant. Ratifying these two covenants will promote human rights and avoid the recurring violation of fundamental liberties in Malayisa. This will enhance Malaysia international reputation and in line with the national aspiration Vision 2020 to achieve a mature democratic society.
Interface between Malaysian law and International law relating to Fundamental liberties
In the formation years of United Nations (UN), many countries including Malaysia shielded behind article 2(7) of UN Charter in arguing that any other human rights matter was strictly an internal affair. There are also arguments that fundamental liberties are already enshrined in the Article 5 to 13 of Federal Constitution, thus it is not necessary for Malaysia to ratify the international conventions.
As time passed by, this argument receives very little credence from the international community. Now, the human rights track record of a nation is usually measured by which conventions has the country signed and the extent to which the domestic legislation has incorporated the international human rights instruments promulgated by the UN.
The Supreme Court has ruled in the case Merdeka University Berhad v Government of Malaysia  CLJ 175 that 1948 UN Declaration of Human Rights was a non legally binding instrument.
This is reaffirmed by the Federal Court in a recent case Mohamad Ezam Mohd Noor v Ketua Polis Negara & Others 4 CLJ 309. Siti Norma Yaakob FCJ when invited to determine the extent and scope of Article 5(3) of Federal Constitution with regard to international standard namely Universal Declaration 1948, Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment ruled that the position is not changed by virtue of s4 (4) of Human Rights Commission of Malaysia Act 1999. The Federal Court ruled that principles are only declaratory in nature and do not have the force of law or binding on member states. For the two rules, the court said that there are Malaysian statutes on the subject matter and it is no necessity to resort to the international rules.
The Federal Court ruling reflects the current law. In Malaysia, international law does not have any legal force because the definition of law in Article 160(2) Federal Constitution does not encompass international law.
Dr Shad S Faruqi  has called for the amendment of The Interpretation Act 1948/1967 to provide for a rule of construction that national legislation should be interpreted as far as possible to accord with Malaysia’s obligations under international law.
It is submitted that Article 160(2) Federal Constitution and S4 (4) Of Human Rights Commission Act 1999 also be amended to include international conventions that Malaysia has signed and ratified.
The proposed amendments will arms the judiciary with the tools to interpret the national law with regards to international conventions that Malaysia has ratified. Such a rule of construction will have positive implications in the maturity of democracy system and the protection of fundamental liberties.
It requires an entire constitutional rethink in order for Malaysian to enjoy the equivalent fundamental liberties on par with the others in the mature democratic and developed countries.
Constitutional Amendment Act 2001 (2), which included the word “gender” as a prohibited ground for discrimination, has broaden the concept of equality in the Federal Constitution. This is a move in the right direction.
The Executive should take up the Suhakam’s proposal on a National Human Rights Plan of Action. Such plan will help to put the human rights improvement agenda in the radar screen of policy maker.
As time passed by, new needs arise. For instance, right to personal privacy to ensure that there is no misuse or abuse in the obtaining, holding and use of personal data is a fundamental liberties in the modern society.
It is perhaps timely to call upon the government to establish an Independent Royal Commission to review the Federal Constitution by benchmarking with the mature democratic nations and recommend fundamental changes to it which take into consideration new aspiration of Malaysians for a modern, democratic and developed nation.
 Tun Mohamed Suffian, An Introduction to Constitution of Malaysia (Second Edition) 1976, page 228
 Vision 2020 http://www.smpke.jpm/main/vision.htm
 Sunday Star, November 5, 2000.
 Constitution of USA – First Amendment http://supreme.lp.findlaw.com/constitution/amendment01
 Harding, A: Law, Government and the Constitution in Malaysia, Malayan Law Journal, 1996 page 189.
 Kevin Tan Yew Lee, Yeo Tiong Ming & Lee Kiat Seng Constitutional Law in Malaysia and Singapore, Malayan Law Journal, 1991 page 791
 Patriot Act 2001 http://www.ins.usdoj.gov/graphics/lawsregs/patriot.pdf
 Zadvydas v Davis http://caselaw.lp.findlaw.com/cgi-bin/ getcase.pl? court= US&navby=case&vol=000&invol=99-7791
 Reflections on the Malaysian Constitution, Aliran, page 16.
 HP Lee Constitutional Conflicts in Contemporary Malaysia, Oxford University Press 1995, page 102
 Lim Kit Siang, Crisis of Identity, 1986 page 131
 Reflections on the Malaysian Constitution, Aliran, page 102
 The Real Reason – Operation Lallang ISA Arrests Oct 27 1987 published by Democratic Action Party, 1988. page 84
 Suhakam Annual Report 2000, page 14
 Lim Kit Siang, Time Bombs in Malaysia (Second Edition) 1978 page 17
 Suhakam Annual Report 2000, page 28
 Ibid, page 25
 The Human Rights Commission of Malaysia (Suhakam), an independent national human rights institution was established by Parliament under the Human Rights Commission of Malaysia Act 1999. Section 2 of Suhakam Act: defines “human rights” as referring to “fundamental liberties as enshrined in Part II of the Federal Constitution”. Section 4(4) provides that regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution. This means that whatever rights and liberties not mentioned in Part II but referred to in the UDHR must be considered by Suhakam provided that there is no conflict with Constitution.
 Sunday Star October 15, 2000.
 Sunday Star, December 10, 2000.
 Suhakam Annual Report 2001, page 3