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The Federal Constitution of Malaysia, which came into force in 1957 as the Constitution of the Federation of Malaya and was amended in 1963 to form the Constitution of Malaysia, is the supreme law of Malaysia and contains a total of 183 articles. It is a written legal document influenced by two previous documents, the Federation of Malaya Agreement 1948 and the Independence Constitution of 1957. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the states of Sabah, Sarawak and Singapore became part of the Federation. The Constitution establishes the Federation as a constitutional monarchy, having the Yang di-Pertuan Agong as the Head of State with largely ceremonial roles. It provides for the establishment and organisation of three main branches of the government: the bicameral legislative branch called the Parliament, which consists of the House of Representatives and the Senate ; the executive branch led by the Prime Minister and his Cabinet Ministers and the judicial branch headed by the Federal Court.
Judiciary of Malaysia is largely centralised despite Malaysia's federal constitution, heavily influenced by the English common law, as well as Islamic jurisprudence.
Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country, and to leave the country and return to it. The right includes not only visiting places, but changing the place where the individual resides or works.
Tun Mohamed Suffian bin Mohamed Hashim was a Malaysian judge, eventually serving as Lord President of the Federal Court from 1974 to 1982. He had previously served as Chief Justice of Malaya.
Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187 is a case decided in the Federal Court of Malaysia concerning the rights and freedoms guaranteed by the Constitution, and also involving the extent to which Parliament can amend the Constitution. The decision was delivered by Federal Justice Raja Azlan Shah.
Assa Singh v. Menteri Besar of Johore (1969) 2 MLJ 30 was a case heard in the Federal Court of Malaysia concerning the applicability of the Restricted Residence Enactment 1933 (RRE) after Malaysian independence in 1957. The Federal Court held that although the application of the RRE had resulted in the violation of Singh's rights under Articles 5 and 9 of the Constitution, these violations were Constitutional because Article 162 permitted the grandfathering of pre-independence laws.
Public Prosecutor v Khong Teng Khen & Anor (1976) 2 MLJ 166 is a case concerning constitutional law in Malaysia. In Khong Teng Khen, it was held by the Federal Court that the Essential Regulations 1975 (ESCAR) was in line with and valid under the Constitution of Malaysia. The case was heard by Lord President of the Federal Court Mohamed Suffian Mohamed Hashim and Federal Justice Wan Sulaiman, who were in the majority, with Federal Justice Ong Hock Sim who dissented.
Johnson Tan Han Seng v. Public Prosecutor [1977] 2 MLJ 66 is a Malaysian case concerning the lapsing of a Proclamation of Emergency by the Yang di-Pertuan Agong (King). The case was heard by the Federal Court, which unanimously held that the question of a Proclamation of Emergency's validity was political, not judicial, and as such the courts had no standing to decide the validity of a state of emergency.
The high courts in Malaysia are the third-highest courts in the hierarchy of courts, after the Federal Court and the Court of Appeal. Article 121 of the Constitution of Malaysia provides that there shall be two high courts of co-ordinate jurisdiction—the High Court in Malaya and the High Court in Sabah and Sarawak. Before 1969, the High Court in Singapore was also part of the Malaysian courts system.
Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631 was a case heard in the Federal Court of Malaysia. The Federal Court unanimously allowed Lee's appeal against the death sentence because of irregularities in his original trial for drug trafficking in the High Court, and held that the trial judge's behaviour constituted a violation of Article 5 of the Constitution of Malaysia, which provides that no person shall be deprived of life or personal liberty save in accordance with the law. The decision further held that constitutional rights must be read prismatically and in a generous fashion, and not literally.
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another [1996] 1 MLJ 261 was a case heard in the Court of Appeal of Malaysia. The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a senior assistant of a primary school. In ruling in his favour, the Court of Appeal held that Articles 5 and 8 of the Constitution, which protect personal liberty and equality under the law, must be read with a liberal and not literal approach. In his judgment, Gopal Sri Ram held:
[Judges] should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression 'life' in art 5(1) is given a broad and liberal meaning. ... [Article 5(1) means] all those facets that are an integral part of life itself and those matters which go to form the quality of life.
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another (2002) 4 CLJ 105 was a case heard in the Federal Court of Malaysia. Sugumar Balakrishnan sought the reinstatement of his entry permit to the state of Sabah. The Federal Court ultimately ruled that the right to personal liberty guaranteed by Article 5 of the Constitution cannot be construed in broad, generous terms, and as such denied Sugumar's application.
Eunique v. Powell, 281 F.3d 940, challenging passport denial for child support arrearage under 42 U.S.C. § 652(k) and enacted as part of the Personal Responsibility and Work Opportunity Act in 1996, is the second cornerstone of the Court's thinking on passport denial/revocation under this law.
Kent v. Dulles, 357 U.S. 116 (1958), was a landmark decision of the U.S. Supreme Court on the right to travel and passport restrictions as they relate to First Amendment free speech rights. It was the first case in which the U.S. Supreme Court made a distinction between the constitutionally protected substantive due process freedom of movement and the right to travel abroad.
Aptheker v. Secretary of State, 378 U.S. 500 (1964), was a landmark decision of the US Supreme Court on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights. It is the first case in which the US Supreme Court considered the constitutionality of personal restrictions on the right to travel abroad.
Article 9 of the Constitution of the Republic of Singapore, specifically Article 9(1), guarantees the right to life and the right to personal liberty. The Court of Appeal has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution. Contrary to the broad position taken in jurisdictions such as Malaysia and the United States, the High Court of Singapore has said that personal liberty only refers to freedom from unlawful incarceration or detention.
Article 15 of the Constitution of the Republic of Singapore guarantees freedom of religion in Singapore. Specifically, Article 15(1) states: "Every person has the right to profess and practise his religion and to propagate it."
Freedom of movement under United States law is governed primarily by the Privileges and Immunities Clause of the United States Constitution which states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Since the circuit court ruling in Corfield v. Coryell, 6 Fed. Cas. 546 (1823), freedom of movement has been judicially recognized as a fundamental Constitutional right. In Paul v. Virginia, 75 U.S. 168 (1869), the court defined freedom of movement as "right of free ingress into other States, and egress from them." However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the "privileges and immunities" clause, this authority was given to the states, a position the court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418 (1871), the Slaughter-House Cases, 83 U.S. 36 (1873) and United States v. Harris, 106 U.S. 629 (1883).
Article 13 of the Constitution of the Republic of Singapore, guarantees a prohibition against banishment and the right to freedom of movement.
Justice K.S. Puttaswamy (Retd.) &Anr. vs. Union of India &Ors. (2017), also known as the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.
References
- 1 2 3 4 5 Mohamed Hashim, Mohamed Suffian (1979-02-13). "Federal Court of Malaysia: Malaysia vs Loh". Federal Court of Malaysia. Archived from the original on 2008-05-14. Retrieved 2009-10-21.