12 fundamental liberties 6 10 (8)

FUNDAMENTAL LIBERTIES
ARTICLES 6 – 9
OF
THE FEDERAL CONSTITUTION

Articles 6 – 9 of the FC
• Art 6 – slavery & forced labour
prohibited
• Art 7 – protection against retrospective
criminal laws & repeated trials
• Art 8 – equality
• Art 9 – prohibition of banishment &
freedom of movement

Article 6: Abolition of Slavery & Forced
Labour

• History
• Slavery was known to the ancient civilisation of China,
India and the Middle East.
• In Greece, Rome, the European colonies & the United
States (until 1985) slavery was the dominant form of
labour.
• In 19th century, America, a movement against slavery
developed but massive contradiction remained. Finally
civil rights legislation of 1957, 1960, 1964 & 1965 put
issues of racial equality beyond all legal doubt.

Labour
• Slavery:
• Art 6(1) of the FC ordains that ‘no person shall
be held in slavery’.
• The word ‘slavery’is not defined under the FC.
• An absolute prohibition which applies to public
& private sectors.
• It forbids Parliament & the executives from
creating any measure that may amount to
slavery.

Labour
• Forced Labour:
• Art 6(2) of the FC prohibits all forms of ‘forced labour’
especially involving working force.
• This prohibition is subject to 3 qualifications:
• a. Parliament may by law provide for compulsory
service for national purposes: Art 6(2) including
compulsory military service & a Rukun Tetangga
scheme. Prohibits forced labour merely for the
purposes of statutory body/local authority. Example:
Universities disallow to impose community service
orders to their students in lieu of disciplinary
punishments.

Labour
• Forced Labour:
• b. work incidental to serving of judicial
sentence of imprisonment shall not taken to be
forced labour: Art 6(3). FC only permits work ‘as
a consequence of a conviction/ finding of guilt
in a court of law’ which refers to work
incidental to a sentence of penal servitude.
Prisoners must give their consent & must
receive payment for any work done.

Labour
• Forced Labour:
• c. Art 6(4) permits the transfer of employment
of workers from the first public authority to the
second authority. The 2nd authority is
substituted for the 1st authority in the contract
of employment. An example from UPM
transferred to UiTM. This type of ‘secondment’
is not available to in the private sector or
between public & private entity.

Article 7: Protection Against
Backdated Criminal Laws
• Section 19 of the Interpretation Act provides the
legislation commences according to the date provided
in the law or where no date provided, the day
following the gazetting of the law.
• Most laws are prospective in their application.
• Many legal system forbids retrospective legislation
except in some circumstances including times of war or
crises, marriages, legitimacy of children, to confer
status or to validate illegal contracts. Sales tax statutes
& procedural rules are often backdated to cover
pending cases.

• Art 7(1) does not put a total ban on
retrospective legislation but in the interest
of a fair criminal process it provides 2
safeguards:
• a. a law creating a new penal offence
cannot have effect back in time.
• b. if the penalty for a criminal offence is
enhanced, the law increasing the penalty
cannot be applied retrospectively.

• Creating new offences
• Art 7(1) provides that ‘no person shall be
punished for an act or omission which was not
punishable by law when it was done or made’.
• A substantive criminal statute must always be
prospective in operation.
• In criminal proceedings the law applicable to
the charge must be the law existing at the time
of the trial or verdict.

• Increasing the penalty: the 2nd limb of Art 7(1)
provides that ‘no person shall suffer greater
punishment for an offence than was prescribed
by law at the time it was committed’.
• If penalty for a criminal offence is enhanced, the
amending law imposing the greater punishment
cannot be applied retrospectively.
• Unclear when a fine is substituted with a
‘community service order’.

• Increasing the penalty: Mohamed Ismail [1984]
• a. the defendant was charged for drug trafficking
• b. the offence was punishable with life imprisonment
or death under section 39(1) of the Dangerous Drugs
Act 1983.
• c. Trial pending, the law was amended to provide for a
mandatory death penalty.
• d. Court held that the amendment could not apply to
the Df’s case as it was enacted after the offence has
been committed.

• Permissible exceptions:
• a. the word ‘punishment’ refers to criminal sanctions &
not civil penalties: Loh Kooi Choon [1977]
• b. amendments to the FC are of civil nature & can be
legislated retrospectively & some have been backdated
to Merdeka Day.
• c. penal laws of a purely procedural nature can be
backdated. The court upheld a retrospective
amendment that converted a trial by jury to trial by
judge alone: Lim Sing Hiaw [1965]

Article 7: Protection Against Backdated
Criminal Laws

• Permissible exceptions:
• d. Reducing the scope of judicial review of a preventive
detention order by retrospective legislation does not
violate Art 7(1): Musa [1970].
• e. criminal laws decreasing the penalty for an offence/
abolishing an offence can be backdated.
• Art 7(1) can be suspended/ departed from by
emergency legislation like the Emergency Essential
Power Act 1979.
• Protection against ex post facto law is subject to many
qualifications that one is left wondering whether the
exceptions are more important than the rule itself.

Article 7: Protection Against Double
Jeopardy
• Art 7(2) provides that ‘a person who has been
acquitted or convicted of an offence shall not be tried
again for the same offence…’
• Immunity for repeated trials for the same offence.
• Common law principle established in the case of R v
Miles [1980] & pleas of autrefois acquit (the accused had
already been acquitted of the offence) & autrefois convict (the
accused had already been convicted of the offence)

• Also based on the Latin maxim Nemo debet bis vexari
(a man must not be put twice in peril for the same
offence).
• Section 303 of the CPC contains similar rule

Jeopardy
• Exceptions to the Rule
• a. Discharge – discontinuation of trial for a variety of
reasons including court’s lack of jurisdiction & the
absence of witnesses & also the charges are badly
framed: Uthaykumar [2003].A discharge does not
release the accused from suspicion. A verdict of
acquittal is a complete defence against future similar
charges on the same set of facts.
• b. Quashing of earlier trial – does not apply if the
previous trial was quashed & a re-trial ordered as
provided under Art 7(2) & affirmed in Sau Soo Kim
[1975] & Fan Yew Teng [1975].

Article 7: Protection Against Double Jeopardy
• c. Different offence – if in the following trial, the
accused is tried for different offence on the same set
of facts, there is no violation of the FC if the accused cd
not have been charged with/convicted of that different
offence in the court which convicted him first. Jamali
[1986] & Nadarajan [1994]. Difficult to reconcile with
section 30(2)(i) of the CPC.
• d.Technical errors – if the detention order was wrongly
made out/if the law authorising detention did not
apply to detainee, the detainee may be released. Re
Datuk James Wong [1976]detained in West M’sia
under a law that applied only in Sarawak.

Jeopardy
• e. Appeal – if a person is acquitted & the
Prosecutor files an appeal under section 5 of
the Court of Judicature (Amendment) Act 1976,
no double jeopardy.
• f. Preventive detention – in Musa [1970] if the
detainee was previously under administrative
detention under the ISA, there is no bar to a
subsequent criminal law trial on the same set of
facts. Saravanan [2005].

Jeopardy
• g. Disciplinary proceedings – a non criminal proceeding
& not a criminal court forum. Mohamed Yusoff Samadi
[1975].
• h. Multiplicity of proceedings – trial in one court on
charges also pending in another court. Only after a
person has been acquitted or convicted: Teh Cheng
Poh [1979].
• i. Civil proceedings – imposition of a criminal penalty is
no bar to a civil action.
• g. Re-trial – Appellate criminal courts have power to
order a new trial. Munusamy [1967] & Khai Chin
[1979].

Article 8: Equality Before the Law
• Article 8(1) declares that ‘all persons are equal
before the law & entitled to the equal
protection of the law.”
• Ideal & generic concept including the aspects of
equal treatment, equal protection &
prohibition against discrimination as follow:
• a. Absence of privileges – mandates equal
subjection of all classes to ordinary law of the
land & should be treated alike.

• b. Equal punishment – should be imposed on persons
accused of like offences regardless of their status.
Tengku Mahmood Iskandar [1973] equal punishment
imposed on an offence committed by a Prince of a
royal house.
• c. No arbitrariness – applies to both legislative power
& administrative discretion. Tan Tek Seng [1996].
• d. Procedural fairness – Hong Leong [1996] court held
the equality clause of the FC can be used to require
public administrators to observe the duty of
procedural fairness towards all citizen. Tan Tek Seng
[1996].

• e. Proportionality – penalties must be
proportionate & not harsh & oppressive.
• f. Legal aid – some common countries like the
US & India, require legal aid for all
unrepresented accused in criminal cases.
• g. Tenders – In India, government’s tender
exercises subjected to judicial ruling that an
arbitrary/ unprincipled preference for one
application over another offends the duty to
treat everyone equally.

• h. Electoral laws – the rule of ‘one person, one
vote’ rests on the principle that every person is
to count for one & no one is to count for more.
In the US, requires all electoral constitutencies
be approximately equal in population size.
• i. Titles – In India & the US, the State does not
confer any titles or special ranks on its citizen.

• Non Discrimination in light of Art 8(2) that provides
‘there shall be no discrimination against citizens on
the ground only of religion, race, descent, place of
birth or gender’ in the following areas:
• in any law
• in the appointment of any office or employment
under a public authority
• in the administration of any law relating to the
acquisition, holding or disposition of property, or
• in the establishing of any trade, business, profession,
vocation or employment

• Non Discrimination in light of Art 8(3) & (4) where it is
forbidden to discriminate against anyone on the
ground that he is a subject of the Ruler of any state or
because he is resident or is carrying on business
outside the jurisdiction of a public authority
• Non Discrimination under Art 136 that requires all
federal employees of whatever race to be treated
impartially. Conflict with Art 153, special privileges for
Malays. Tun Suffian suggested that at entry point,
reservations & quotas are permissible under the
‘affirmative action’ provisions of the FC. However,
once in service, all public servants of whatever race
should be treated impartially.

• Non Discrimination in light of Art 12(1) confers equal
rights in respect of education. No discrimination on
grounds only of religion, race, descent, place of birth
or gender in the administration of public educational
institutions.
• Non Discrimination under Art 12(2) that provides
every religious group has the right to establish &
maintain institutions for the education of children in
its own religion. No law regulating such institutions
shall discriminate on ground of religion.


• Other grounds of discrimination:
• All discrimination is unconstitutional except in 2
circumstances – a. if it is explicitly permitted by a
clause of the FC & b. if the courts have adjudged the
differentiation to be based on a ‘reasonable
classification’.
• Prohibited grounds – example in Datuk Haji Harun
[1976], section 418A of the CPC, which allows the A-G
to transfer criminal cases from the subordinate to the
superior courts, was held by the High Court to violate
the equal treatment clause of Art 8 & Menon [1990]
where differential rates of pensions for those residing
locally or abroad were challenged even though
‘seniority’ & ‘residence’ are not forbidden grounds.

• Constitutionally Permissible Exceptions
• a. Personal Law under Art 8(5). FC do not outlaw the
existence of separate personal laws for various
communities. With that, freedom of religion
guaranteed by Art 11.
• b. Judges transfer cases from one court to another
under Art 145 (3A). Art 145 (3) gives the A-G wide
discretion power to institute, conduct or discontinue
any criminal proceeding. Datuk Haji Harun [1977]. The
A-G prosecutorial discretion has been challenged in
the courts on numerous occasions but never with
success. Art 145(3) seems to have eclipsed Art 8.

• c. Prohibited grounds under Art 8(2). The article
forbids discrimination on account solely of religion,
race, sex, descent or place of birth except for other
additional grounds. An example, Rukun Tetangga law
for public safety exempts women from night patrols.
• d. Privileges & immunities especially confer to the
Malay & natives of Sabah & Sarawak to create a level
playing field known as protective discrimination.


• e. Official religion based on a crucial pre-Merdeka
promise compromise between the Malays & the nonMalays that the religion of Islam would be given
special position in the FC as under Art 3(1) with State
supports under Art 11(4).
• f. Gender bias against women in citizenship laws,
personal laws & the laws relating to the natives of
Sabah & Sarawak.
• g. Private sector. In Beatrice [2005], private sector is
not bound by the constitutional rules for equal
treatment where she was terminated because she
became pregnant & did not resign as was required by
the collective agreement. Art 8 does not include
collective agreement.

Article 9:Freedom of Movement &
Protection Against Banishment
• Article 9 provides 3 separate but related
rights on all citizens:
• a. Protection against banishment
• b. Freedom of Movement
• c. Right to reside in any part of the
Federation

• a. Protection against banishment
• Article 9(1) of the FC proclaims that ‘no citizen shall be
banished or excluded from the Federation’.
• Right of people to live, to work & to pursue their
dreams in the land of their birth.
• Nationality? The burden is on the applicant’s shoulder
to prove that he belongs to a citizenship category,
citizens of which cannot be banished or that the order
of deprivation of citizenship was in some
substantive/procedural way illegally made: Re Soon
Chi Hiang [1969] & Re Hoon Tye Wan [1964].

Deprivation of Citizenship

•
• A citizen’s protection against banishment must be read
in the light of the government’s power to terminate the
citizenship of its nationals. However, there are 5
exceptional circumstances which citizenship can be
withdrawn as follows:
• i. acquired the nationality of another country whether
by registration, naturalisation or other voluntary &
formal act. Art 24 allows the M’sian citizenship to be
withdrawn.
• (In M’sia, by registration must have an elementary
knowledge of the Malays language. By naturalisation
must have an adequate knowledge of the Malay
language & have resided in M’sia for 10 years)


• Deprivation of Citizenship
• ii. doing an act prohibited under Art 25 when he/she is a
M’sian citizen by registration or naturalisation like
communicating with an enemy in times of war. Excluding
those who are citizens by operation of law under Art
14(1)(a) & Part I of the 2nd Schedule.
• iii. Fraud/ False representation when certificates were
obtained to be a M’sian citizen by registration
/naturalisation under Art 26(1).
• iv. A marriage to a Malaysian dissolves within 2 years,
the woman’s citizenship may be withdrawn under Art
26(2).
• v. Children below 21 may be deprived of their citizenship
if the citizenship of a parent is withdrawn or renounced:
Art 26A.

• Deprivation of citizenship decisions by the courts
are made non-reviewable by virtue of Section 2 of
Part III of the 2nd Schedule. Some judges interpret
literally & refuse judicial review: Liew Shin Lai [1970]
& other keep the judicial door open to certiorari:
Soon Kok Leong [1968]. certiorari= a general remedy
to bring decisions of an inferior court/ tribunal court
before the superior court for review.
• Art 23(1) allows any citizen above 21 to renounce
his/her citizenship & the effect is that Art 9(1)
ceases to have any applicability.

• b. Freedom of Movement
• Article 9(2) states that every citizen has the right to
move freely throughout the federation.
• Justice Azlan Shah stated that the article was meant
‘to remove all internal barriers in the country and to
make it as a whole the dwelling place of all citizens’:
Assa Singh [1969].
• Application within territories of M’sia: Loh Wai Kong
[1979] denied right to leave the country.
• Assa Singh attempted to bring the right to travel
abroad under the protection of personal liberty in
Art 5 but also failed.

• c. Right of Residence
• Article 9(2) confers a right on all citizens to reside in
any part of the Federation.
• The right to choose one’s place of residence is
strengthened by Art 8(4) which forbids public sector
discrimination on the grounds of residence.
• Limitations
• Limitations provided under Arts 9(2), 9(3), 4(2)(a),
149 & 150.
• i. Parliament power to regulate these rights on the
grounds of security, public order, public health or
punishment of offenders under Art 9(2).

• Limitations
• ii. Parliament power to enact immigration laws to
impose restrictions on the rights of West Malaysians
to move to or reside in Sabah & Sarawak under Art
9(3).
• Parliament exercise this power by adding a Part VII
to the Immigration Act 1959/1963 on Special
Provisions for East M’sia. Sabah & Sarawak’s
exclusive control on immigration is further
strengthened by Article 161E(4).

•
•
•
•

c. Right of Residence
Limitations
ii. Parliament power to enact immigration laws.
Sugumar [1998] entry permit of a West M’sian
lawyer was withdrawn & he was ordered to leave
Sabah within 7 days. On appeal, the CoA, held that
the executive decision was ultra vires in that it
lacked fairness & proportionality. This decision was
overturned by the Federal Corut in Sugumar [2002],
the court was reluctant to adopt the doctrine of
substantive fairness.


• Limitations
• iii. Permissible grounds under Art 4(2)(a) to impose
restrictions on the rights under Art 9(2). Art 4(2)(a)
relates to freedom of movement.
• iv. Articles 149 & 150 dealing with subversion &
emergency allows the Parliament to regulate freedom
of movement & residence. Assa Singh challenged the
constitutional validity of the Restricted Residence
Enactment (an example:order to require a citizen to
reside in a designated place) but the court decided that
the law was valid measure to promote public order &
security.

12 fundamental liberties 6 10 (8)

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