federal constitution

1. Art 6 Protection vs forced labour
Art 7 Protection vs retrospective trial and
repeated trial
1

2. 2

3. 3

4. 4

5. 5

6. 6

7. 7

8. 8

9. 9

10. 10

11. 11

12. 12

13. 13

14. 14

15. 15

16. 16

17. 17

18. 18

19. 19

20. Art 8 Equality
20

21. 21

22. 22

23. 23

24. 24

25. 25

26. 26

27. 27

28. 28

29. 29

30.  In Beatrice a/p A.T. Fernandez v Sistem Penerbangan Malaysia,
 The appellant did not resign after being pregnant contrary to a
term stipulated in the collective agreement (CA) of the air
carrier, which requires all stewardesses of a particular category
to resign on becoming pregnant.
 The Federal Court dismiss her appeal.
 Held - “..in construing Article 8 of the Federal Constitution, our
hands are tied.
 The equal protection clause in Clause (1) of the Article 8 thereof
extends only to persons in the same class.
 It recognizes that all persons by nature, attainment,
circumstances and the varying needs of different classes of
persons often require separate treatment.
 Regardless of how we try to interpret Art. 8…we could only
come to the conclusion that there was obviously no
contravention.
 Nature of job is not applicable to pregnant workers in airline
service
30

31. 31
 PP v Tengku Mahmood Iskandar
 Respondent was convicted for causing the
death of a golf caddy as he was playing golf
in the Cameron Highlands.
 Since he was the son of Sultan of Johore,
sentence was reduced.
 But the decision was reversed & heavy
punishment was given.
 This is by referring to Art. 8.Everybody is
subjected to the same law to minimize
tyranny.

32.  Procedural fairness
 Tan Tek Seng v Suruhanjaya Perkhidmatan
 Art. 8 can be used to require public
administrators to observe the duty of PF towards
all citizens including the giving of reasons for an
adverse decision.
 Hong Leong v Liew Fook Chuan
 The court held that the equality clause of the
consti. can be used to require public
administrators to observe the duty of procedural
fairness towards all citizens.
 Adjudicators must give reasons for their
decisions.
32

33.  Article 8(1)
 All persons are equal before the law and entitled
to the equal protection of the law
 Article 8(2) – Prohibition on discrimination.
 In interpreting the basic charter each clause 8(1)
and 8(2), must be read together.
 Art. 8(2) should not be seen as exclusive or
broad (non-discrimination vs religion, race,
descent, place of birth and gender)
 It is limited
33

34.  Each human is needed to be distinguished
according to their respective characteristic in
certain circumstances.
 Eg: the application of taxation (tax law) -
follows the rates; rich people pay more, poor
people pay less.
34

35.  All discrimination is unconstitutional except in 2
circumstances:
◦ 1. If it is explicitly permitted by a clause of Consti.
2. If the courts have adjudged the differentiation to be based
on a ‘reasonable classification’.
 Based on this doctrine, classification is allowed if
the classifications made was reasonable &
possessed these 2 criteria:
◦ The classification must be acceptable @ Intelligible
Differentia
◦ There must be acceptable nexus(link) with the lawful
objectives.
35

36.  PP v Datuk Harun Bin Idris
 F: there was allegations of corruption. Case was
transfer directly from lower court to high court based
on Section 418A of CPC.
 Section 418A of CPC allows the AG to transfer
criminal cases from the subordinate courts to the
superior courts.
 Held by the HC that Section 418A violate the equal
treatment clause of Art. 8 and it gave a too wide
discretionary power to the AG and such power had
the effect of distinguishing people in which such
distinguish was not based on a reasonable
classification.
 However, on appeal it was held by the FC that Sec.
418A is saved because Art. 145(3) of Fed. Consti.
grants power to the AG to transfer cases from one
court to another.
36

37.  FC: that there was intelligible differentia
between the classification and the law.
 Thus AG’s act of transferring case from one
court to another was not discriminatory.
 In conclusion, this case indicated that the
principle of equality under Art. 8 illustrates
that there is possibility of existence of valid
classification as long as such classification is
based on reasonable classification.
37

38.  Johnson Tan Han Seng v PP
 The court has decided as follow where the
Fed. Consti has given the power/ discretion
to the AG to differentiate/ classify an indi.
from other indi for the purpose of
prosecution since AG takes into account the
consideration on public interest when making
such decisions.
38

39.  PP v Khong Teng Khen
 It was held Art. 8 does not require that a law
must operate alike on all persons or that it
must be general in character and universal in
application.
 All that Art.8 guarantees is that a person in
one class should be treated the same as
another person in the same class.
 Parliament is permitted to indulge in
legislative classification of citizens according
to their age, income, profession, etc.
39

40.  Ong Ah Chuan v PP
 Challenge has been made on the classification used by the
legislative to determine what offences should be punished with
mandatory death penalty.
 In this case, it involved the punishment of mandatory death
penalty on the offence of drug trafficking (heroine) of 15kg
which was an offence under Sec. 3 of the Misuse of Drugs Act
1973.
 The court held it was the duty of the legislative to determine
what is the different situation which can become the ground of
any classifications for the purpose of punishment as long as
there exist the reasonable relationship with the social purpose
of the law.
40

41.  Malaysian Bar v Government
 Legal profession act - A provision states that
lawyers of less than 7 years standing are
forbidden from serving their Bar or even its
Committees.
 Government v Menon
 Differential rates of pensions for those residing
locally or abroad were challenged even though
‘seniority’ and ‘residence’ are not forbidden
grounds for differentiation.
 In both cases (Malaysian Bar & Menon), the
challenges were upheld & the laws were declared
unconstitutional.
 But , on appeal both cases were overruled on the
ground that the differentiation was reasonable.
41

42. Art 9 Protection vs Banishment
42

43. 43

44.  Deprivation of citizenship by registration under Article 16
 A or 17 or by naturalization
 25.(1) the Federal Government may by order deprive of his
 citizenship any person who is a citizen by registration under
 Article 16 A or 17 or a citizen by naturalization if satisfied—
 (a) that he has shown himself by act or speech to be disloyal
 or disaffected towards the Federation;
 (b) that he has, during any war in which the Federation is
 or was engaged, unlawfully traded or communicated
 with an enemy or been engaged in or associated with
 any business which to his knowledge was carried on in
 such manner as to assist an enemy in that war; or
 (c) that he has, within the period of five years beginning with
 the date of the registration or the grant of the certificate,
 been sentenced in any country to imprisonment ….
44

45.  26. (1) the Federal Government may by
order deprive of his citizenship any citizen
by registration or by naturalization if
satisfied that the registration or certificate
(a) was obtained by means of fraud, false
representation or
 the concealment of any material fact; or
 (b) was effected or granted by mistake.
45

46. 46

47. 47

48. 48

49. 49

50. 50