Fundamental Liberties in Malaysia: Constitutional Framework

Abstract

Fundamental liberties that are enumerated under Art. 5 – 13 of the Federal Constitution outline broadly general principles of fundamental liberties in Malaysia. They are significant in determining relationship between the people and the state. Since these liberties are constitutionally guaranteed, the state cannot take those rights away from the people without justification. However, several descriptions can be made to these provisions and they are subject to interpretation. Some retain the original structure and some provisions have been amended. Some are absolute and some are subject to limitation and restriction. This poses problems in so far to understand the scope and limit of fundamental liberties in Malaysia. In order to meet the current challenges, the constitutional framework of fundamental liberties must be examined and scrutinized. For that purpose, this thesis adopts doctrinal analysis approach which mainly based on library research. Using this approach, this thesis constantly refers to the provisions of the Constitution itself as its main reference. Statutes and juridical decisions are relevant in so far to explain the scope and framework of those provisions of fundamental liberties. Secondary sources such as books, articles, journal, reports and newspaper are useful in illustrating that framework. In reaching that objective, this thesis gives special emphasis on the ideas and philosophy of fundamental liberties, its origin, its scope within the parameters of the Constitution, its development in Malaysia and analysis on judicial attitudes towards the implementation of fundamental liberties. Some Islamic principles relating to fundamental liberties and illustrations on their application in the Malay traditions are analysed in order to understand the concept of fundamental liberties in Malaysia. IslÉm and Malay traditions play important role in the Federal Constitution and their role are not limited to rites and ritual. The provisions of the Constitution are not rigid as to exclude the application of Islamic principles as part of the instrument in interpreting the Constitution. A considerable part of the thesis analyses the method of interpretation by judiciary where it finds that there has not been a systematic and consistent approach in interpreting the said provisions of the Constitution. These uncertainty and ambiguity of interpretations have hindered the progress and development of fundamental liberties principles in this country, Malaysia. The attitude and stance of the judges towards expanding the principles of fundamental liberties are pathetic since judicial activism is seen as peculiar. The judges are not trained to be ingenious and to interpret fundamental liberties provisions in the light of its ideas, philosophy, themes and origin. For that, a certain degree of emphasis has been well incorporated in this research with a hope that the judges should move gallantly and give life to the provisions on fundamental liberties. For that, a systematic approach and thematic interpretation should be adopted to achieve such objectives. In collateral, this research also examines the mechanisms in which fundamental liberties are protected particularly on role of the Human Rights Commission of Malaysia (SUHAKAM) and other organisations in promoting fundamental liberties. This research discovers that although the constitutional framework provides room for the development of fundamental liberties in Malaysia such development is in fact minimal and negligible. The law governing fundamental liberties remains stagnant and does not progressively develop towards establishing a better civil society.