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Human Rights in 21st Century Malaysia

by Tommy Thomas

Constitutionalism

Constitutional Government, that is, a government whose power is circumscribed by a written constitution is seen as the best measure to combat the self-interest and ambition of those who govern. History has demonstrated that when it comes to the use of power those who have excessive amounts of self-interest and ambition are apt to be the most influential and most dangerous. Hence, it is to curb them, that limits to governmental power should be designed and constructed. Restraint of governmental power is thus the first pre-condition of human rights. The Reid Commission in its Report published in February 1957 endeavoured to achieve the objective of checks and balances by giving significance to four critical features in the Constitution, namely, federalism, separation of powers, entrenched human rights and the constitutional amendment process.

The first battle for human rights which took place shortly before Merdeka was the harbinger of things to come. The majority in the Reid Commission gave pride of place to three vital principles:

  1. the Rule of Law,
  2. conferring the right to every person to challenge in the Supreme Court the constitutionality of any law passed by Parliament, and
  3. all restrictions by Parliament on fundamental liberties must be "reasonable".

Justice Hamid of Pakistan dissented. His dissent suited the thinking of Tunku and the Alliance Party. Hamid's minority view was accepted and formed part of the Federal Constitution, which excluded the three vital principles recommended by the majority four members of the Reid Commission.

Concerns expressed by two lawyers, S M Yong and K L Devasar, when the Reid Report and Hamid dissent were debated in the Federal Legislative Council, were given short shrift. Again, a harbinger of things to come once independence was accomplished.

The Reid Commission's recommendations on fundamental rights were thus modified, and appear as Part P of the Federal Constitution entitled "Fundamental Liberties".

  1. Article 5 - Life and Liberty of the Person.
  2. Article 6 - Prohibition of Slavery and forced labour
  3. Article 7 - Protection against retrospective criminal and repeated trials.
  4. Article 8 - Equality.
  5. Article 9 - Prohibition of Banishment and freedom of movement.
  6. Article 10 - Freedom of speech, assembly and association.
  7. Article 11 - Freedom of religion.
  8. Article 12 - Right to education.
  9. Article 13 - Right to property.

In order to determine the state of human rights in the new Millennium, one has to review the performance of the three branches of government since Merdeka in a constitutional context.


Part 1: Introduction
Part 2: Constitutionalism
Part 3: The Executive and the Legislature
Part 4: The Judiciary