3. The Concept of Freedom
Definition:
• Freedom is the right and capacity of people to determine their
own actions, in a community which is able to provide for the
full development of human potentiality.
• Power or right to act, speak, or think as one wants without
hindrance or restraint, and the absence of a despotic
government - the absence of impediment.
• Freedom may be enjoyed by individuals but only in and
through the community.
• John Locke (Two Treaties of Government) - No one ought to
harm another in life.
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4. 11/11/16 4
•
As historian Eric Foner has shown, freedom has always been
a contested concept. In different eras, it has taken on
different meanings. For the founders, it meant freedom from
political autocracy, and from royalists with special privileges
from the crown.
• In capitalism, only those who have money can enjoy real
freedom. Those who have no means of living other than
selling their labour power may have freedoms, but their
opportunities are always restricted. In bourgeois
society some freedoms are considered more important than
others. (Karl Marx and Frederick Engels -
The German Ideology , Chapter 1d)
5. CASE STUDY: HOLOCAUST
• Holocaust is a word of Greek origin meaning "sacrifice by
fire."
• The Holocaust was the systematic, bureaucratic, state-
sponsored persecution and murder of six million Jews by
the Nazi regime and its collaborators.
• The Nazis, who came to power in Germany in January
1933, believed that Germans were "racially superior" and
that the Jews, deemed "inferior," were an alien threat to
the so-called German racial community.
• Nazis deemed Jews as priority danger to Germany, were
the primary victims of Nazi racism
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6. • National Socialist government established
concentration camps - To concentrate and monitor the
Jewish population as well as to facilitate later deportation
of the Jews, the Germans and their collaborators created
ghettos, transit camps, and forced-labor camps for Jews
during the war years.
• Closed all Jewish education institutions, hospital –
introduced anti Jewish law
• German SS and police units, supported by units of the
Wehrmacht and the Waffen SS, murdered more than a
million Jewish men, women, and children, and hundreds of
thousands of others.
• The crimes committed during the Holocaust devastated11/11/16 6
7. Khmer Rouge (Cambodia 1975-1979)
• The Khmer Rouge forced around two million people from
the cities to the country to take up work in agriculture.
• They forced many people out of their homes and ignored
many basic human freedoms; they controlled how
Cambodians acted, what they wore, who they could talk to,
and many other aspects of their lives.
• Over the next years, the Khmer Rouge killed many
intellectuals, city-dwellers, minority people, and many of
their own party members and soldiers who were
suspected of being traitors.
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8. • Civil and political rights were abolished. Factories,
hospitals and educational facilities were shut down.
Lawyers, teachers, engineers, doctors and qualified
professionals were considered a threat to the new regime.
• Execution was meted out for the most trivial of offences,
such as wearing glasses or having clean fingernails – a sign
of elitism. For the Khmer Rouge, the only acceptable
lifestyle was that of ignorant agricultural workers.
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9. TYPES OF FREEDOM
a) Physical freedom
• the possibility for a person to go where he/she wants and
do what s/he wants
b) Spiritual freedom
• the privilege of being able to express one's thoughts or to
live according to one's outlook
c) National freedom
• the authority which enables a person to identify and to live
with others of his/her people
d) State freedom
• the ability of a person to live (preferably in his/her own
land) under a government of his/her choosing
e) Political freedom
• Actively involve in the government.11/11/16 9
10. Positive and Negative Freedom
• Before the development of bourgeois society in seventeenth
century Europe, and with that, conceptions of individualism,
freedom was posed only in the form of the question of free
will , i.e., the problem of Freedom and Necessity.
• The emergence of a civil society governed neither by feudal
right nor family relations, posed the question of social
freedom for the first time. The conception of freedom has
since developed along two lines
positive and negative freedom.
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11. Positive freedom-
• Positive freedom is the capacity of a person to determine the
best course of action and the existence of opportunities for
them to realise their full potential - something that individual
decides on their own -self-rule - being one’s own master.
• It refers to the sphere of action within which an individual is
left alone to do or be whatever he or she may want to do or
be.
• Positive freedom has been built up almost exclusively as a
result of the struggle of the working class: initially the
legislation limiting hours of work, child labour and so on,
later the creation of free compulsory education, public health
systems, right to form trade unions, and so forth, freedoms
which explicitly limit the freedom of the capitalists to exploit
workers, but give worker the opportunity to develop as
human beings.11/11/16 11
12. • Example:
Ahmad drive his car on the highway. He can go anywhere he
like without any problem. He can go to Midvalley, Sunway
Pyramid or even Sg Petani Mall if he wishes.
This is positive liberty because he can decide on his own.
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13. Negative Freedom
• Negative freedom means forces which prevent an individual
from doing whatever they want (element of interference or
restriction)
• Example:
A worker has the freedom to say whatever she believes do
what ever they wants, but she does not have the freedom to
live if crippled by a disease regardless of how much money
she has.
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14. Factors Which Limit Individual
Freedom
• Freedom enjoyed by individual is not absolute because as a
member of a society, individuals right have to be
harmonized with their duties towards the society.
• All their fundamental rights and freedom must be
subjected to certain limitation such as public order,
national security, the preservation of moral values, as well
as respect for the rights of one’s fellowman.
• Human cannot be allowed to live freely without
limitation/discipline/regulation – danger of
authoritarianism/despotism.
• Only freedom of thought, conscience and opinion are
subject to no real restriction – only affect yourself
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15. a) Limits from the condition of living in
society
• Living in society means one has to limit his freedom to
receive various benefits of being a society member.
• If it is a self regarding conduct – absolute freedom
• It is condition of life that one must accept based on the
environment that one’s lives.
• Chan Min Tatt, J in Syarikat Penerbangan Selangor Sdn Bhd v
Fahro Rozi Mohd & Ors had said:
“Almost everyone of us have to tolerate a certain amount
of interference from our neighbours and we in turn have a
right to make certain amount of noise in the enjoyment of
our property” – compromise your freedom in order to
accommodate other or society at large.
16. b) Limit accepted to allow the authority to
take necessary action under law & order
• Elected government has a mandate given by the peoples.
• One of the mandate is to regulate on many matters
affecting our life – policies, laws and order – preventive
actions
• For e.g. environment, religion, health standard, traffic etc.
• This mandate may deprive our basic rights. i.e. detention
without trial, they can enter our premises, stop our car at
the road blocks, acquire our land for development and
many more.
17. c) Limits accepted by virtue of practice,
customs or culture in a society
• No matter how wide the liberty is, it is still subjected to
religious, ethnic culture, customs or tradition.
• Like a English proverb= “when in Rome, do as what
the Romas do”
18. d) The growing complexity in the society
• Progressive society requires modern approach.
• The society is becoming more extrovert, global
and complex with the presence of satellite TV,
internet, emergence of new cultures. These
require new set of law and regulation from time to
time.
20. HUMAN RIGHT
Greatest invention of civilizations – inherent rights of
human being regardless of color, nationality, religion,
languages etc.
As a symbol of commitment by the international
community to the universal conception and protection of
human rights, the Human Rights principle was adopted by
the United Nations in the Declaration of Human Rights in
1948.
It was widely accepted that everyone has or should have
certain basic human rights which civil government should
respect.
Otherwise, people are justified in struggling against such
regime in order that their human rights may be recognised.
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21. • Three roles human right:
– Necessary conditions of a regime’s legitimacy an
decency its legal order
– Sufficient to exclude justification on forceful and
intervention by other people
– A limit to pluralism among people –’ balance of rights.’
• Associated with constitutional protection under Article 5-
13 Federal Constitution.
• International human rights issues ????
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22. SOCIAL CONTRACT
• What is social contract?
Idea that a person be subjected to the political will of
another but at the same time, government need to
respect the fundamental liberties of people.
It is not a legal contract in the strict sense.
• 2 types of social contract:
– Pactum subjecitonis – contracting party is individual in
society where society agree to submit their rights to
authority.
– Pactum unionis – an agreement between members in
society to form rule that binding others.
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23. Hobbes in Leviathan
Man live as ‘ a war of every man against man’ ‘poor,
nasty, brutish, short’
We need to surrender our rights and it become basic of
social contract’. Support authoritarian.
John Locke in Two Treaties of Government
Support limited constitutionalism
The purpose of government to protect human
entitlements
Man need to renounce its natural conditions and give
part of his liberty to authority.
Equality of man, self-preservation of others, not to injure
others, no one has absolute powers.
Rousseau in the Social Contract
State should be govern by ‘general will’ – law must reflect
the general will.
Sovereign hold duties to each citizens
24. CONSTITUTIONAL PROTECTION
• Law is often regarded as promoting freedom of individuals
• Human rights and fundamental freedom are often linked
together.
• Issues of freedom is provided for within the constitutional
rights of an individual and embodied within the
constitution.
• In reality, law can also restraint an individual exercise of
rights.
• The Federal Constitution is the highest law in the country
-It highlights and safeguard certain fundamental human
rights essential for the continuance of human race.
• The question : How far our Federal Constitution
protects our freedom or restraints any law or
any other power from encroaching and taking
away our freedom?11/11/16 24
25. Fundamental Liberties under Federal Constitution
(1) Article 5 – Liberty of the person
(2) Article 6 – Slavery and forced labour prohibited
(3) Article 7 – Protection against retrospective criminal
laws 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) Artcile 12 – Right in respect of education
(9) Article 13 – Rights to property
25
26. RIGHT TO LIFE AND LIBERTY
Liberty of the person
5. (1) No person shall be deprived of his life or personal
liberty
save in accordance with law.
(2) Where complaint is made to a High Court or any judge
thereof that a person is being unlawfully detained the court shall
inquire into the complaint and, unless satisfied that the detention
is lawful, shall order him to be produced before the court and
release him.
(3) Where a person is arrested he shall be informed as soon as
may be of the grounds of his arrest and shall be allowed to consult
and be defended by a legal practitioner of his choice.
26
27. (4) Where a person is arrested and not released he shall
without unreasonable delay, and in any case within
twenty-four hours(excluding the time of any necessary
journey) be produced before a magistrate and shall not be
further detained in custody withoutthe magistrate’s
authority:
• Provided that this Clause shall not apply to the arrest or
detention of any person under the existing law relating to
restricted residence, and all the provisions of this Clause
shall be have an integral part of this Article as from
Merdeka Day:
– These protections recognised the principle of
natural justice and the right to file Writ of
Habeas Corpus
27
28. RESTRAINT TO ARTICLE 5
• Refers to liberty relating to or concerning the body of the
individual.
(Govt. of Malaysia & Ors v. Loh Wai Kong [1979] 2 MLJ 33)
• The government is entitled to stop a person from leaving
the country from leaving or visiting other countries for
various reasons i.e. political boycott, imminent threat of
war, pending criminal charges etc
28
29. SLAVERY AND FORCED LABOUR
PROHIBITED
Slavery and forced labour prohibited
6. (1) No person shall be held in slavery.
(2) All forms of forced labour are prohibited, but Parliament
may by law provide for compulsory service for national purposes.
(3) Work incidental to the serving of a sentence of imprisonment
imposed by a court of law shall not be taken to be forced labour
within the meaning of this Article.
29
30. PROTECTION AGAINST RETROSPECTIVE
CRIMINAL LAWS AND REPEATED TRIALS
7. (1) No person shall be punished for an act or
omission which was not punishable by law when it was
done or made, and no person shall suffer greater
punishment for an offence than was prescribed by law at
the time it was committed.
(2) A person who has been acquitted or convicted of an
offence shall not be tried again for the same offence except
where the conviction or acquittal has been quashed and a
retrial ordered by a court superior to that by which he was
acquitted or convicted.
30
31. Three protections:
(a) against retrospective criminal law
(b) against retrospective greater punishment
(c) against repeated trial
31
32. EQUALITY
8. (1) All persons are equal before the law
and entitled to the equal protection of the law.
(2) Except as expressly authorized by this
Constitution, there shall be no discrimination against
citizens on the ground only of religion, race, descent,
place of birth or gender in any law or in the
appointment to any office or employment under a
public authority or in the administration of any law
relating to the acquisition, holding or disposition of
property or the establishing or carrying on of any
trade, business, profession, vocation or employment.
32
33. RESTRAINT TO ARTICLE 8
• Article 153 allows reservation of quotas in respect of
services, permits etc for Bumiputras
• The Attorney General is given a power to discriminate
in public interest as well as vast power to institute, to
conduct, to transfer case to another court or
discontinue criminal proceedings which may open an
opportunity for plea bargaining
33
34. PROHIBITION OF BANISHMENT AND
FREEDOM OF MOVEMENT
34
9. (1) No citizen shall be banished or excluded from
the Federation.
(2) Subject to Clause (3) and to any law relating to the security
of the Federation or any part thereof, public order, public
health, or the punishment of offenders, every citizen has the
right to move freely throughout the Federation and to reside
in any part thereof.
35. RESTRAINT ARTICLE 9
• “Freedom of movement”, the right is not absolute
• Legislations: Passport Act and Immigration Act.
35
36. FREEDOM OF SPEECH, ASSEMBLY AND
ASSOCIATION
10. (1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech
and expression;
(b) all citizens have the right to assemble peaceably
and without arms;
(c) all citizens have the right to form associations.
36
37. (2) Parliament may by law impose—
(a)on the rights conferred by paragraph (a) of Clause (1),
such restrictions as it deems necessary or expedient in he
interest of the security of the Federation or any part
thereof, friendly relations with other countries, public
order or morality and restrictions designed to protect the
privileges of Parliament or of any Legislative Assembly or
to provide against contempt of court, defamation, or
incitement to any offence;
(b) on the right conferred by paragraph (b) of Clause (1),
such restrictions as it deems necessary or expedient in
the interest of the security of the Federation or any part 37
38. (c) on the right conferred by paragraph (c) of Clause (1),
such restrictions as it deems necessary or expedient in
the interest of the security of the Federation or any part
thereof, public order or morality.
(3) Restrictions on the right to form associations conferred by
paragraph (c) of Clause (1) may also be imposed by any law
relating to labour or education.
(4) In imposing restrictions in the interest of the security of the
Federation or any part thereof or public order under Clause (2)
(a),
Parliament may pass law prohibiting the questioning of any
matter, right, status, position, privilege, sovereignty or
prerogative established or protected by the provisions of Part
III, Article 152,153 or 181 otherwise than in relation to the
implementation thereof as may be specified in such law.
38
39. RESTRAINT TO ARTICLE 10
There are statutes which limit and regulate the same
i.e. Defamation Act, 1957, Sedition Act 1948, Official
Secrecy Act and Printing Presses and Publications Act
1984, where one should not go beyond the statutory
limits.
As for freedom to assemble a permit is pre requisite,
the applicant for a permit has to satisfy the police
officer that the assembly, meeting or procession is not
prejudicial to the interest of security or that it will not
excite disturbance of the peace. (Datuk Yong Teck Lee
v. Public Prosecutor & Anor [1993] 1 MLJ 295.)
Restraint to right to freedom of association e.g. Trade
Unions Act 1959, Societies Act 1966 and University and
University Colleges Act 1971
39
40. • Restrain to the freedom of expression - Not merely
contains the right of the citizens but more on obligations
since there are limitation provided.
Case: PP v Ooi Kee Saik 7 Ors [1971] 2 MLJ 108
The accused was charged with an offence under Sedition Act
1948, where the seditious words were alleged to be
uttered by the first accused at a dinner held by the DAP. It
was held that speeches went beyond the limit of freedom
off expression. It accused the government of gross
partiality in favour of one group and the speech was apt to
promote feelings of ill will and hostility among different
races and touch on the specials right of Malays.
• The Sedition Act (1948) places wide limitations on
freedom of expression, particularly regarding sensitive
political subjects such as race.11/11/16 40
41. FREEDOM OF RELIGION
11. (1) Every person has the right to profess and
practise his
religion and, subject to Clause (4), to propagate it.
(3) Every religious group has the right—
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or
charitable purposes; and
(c) to acquire and own property and hold and administer it
in accordance with law.
41
42. (4) State law and in respect of the Federal
Territories of Kuala Lumpur, Labuan and
Putrajaya, federal law may control or restrict the
propagation of any religious doctrine or belief
among persons professing the religion of Islam.
(5) This Article does not authorize any act contrary
to any general law relating to public order, public
health or morality.
42
43. A person aged 18 and without his/her parents’ consent, has the
right to choose her own religion and to convert, provided
he/she does it on her own free will (Teoh Eng Huat v. Kadhi of
Pasir Mas Kelantan & Majlis Agama Islam Dan Adat Istiadat
Melayu, Kelantan [1986] 2 MLJ 228)
Teoh Eng Huat's daughter was married off to a Muslim. Hence
then a minor, converted to Islam. The high court ruled that the
father's right to decide the religion and upbringing of the infant
is allowed "subject to the condition that it does not conflict
with the principles of the infant's choice of religion guaranteed
to her under the Federal Constitution". Through the
proceedings, Susie Teoh, the daughter never appeared in court
to testify to willingness.
The decision was overruled on appeal to the Supreme Court,
who held "in all the circumstances and in the wider interests of
the nation no infant shall have the automatic right to receive
instruction relating to any other religion other than (her) own
without the permission of the parent or guardian".
43
44. The Supreme Court further held that this was "only
of academic interest" as Susie Teoh was no longer a
minor at the time of hearing. In response several
states (Islamic laws are passed by individual states)
passed laws providing for conversion by 15 (defined
as "baligh" in Islam or the age of majority). Federal
law still provides for the age of majority as 18
The right to profess religion is guaranteed by our FC
even when to some extend it is detrimental to the
official religion, Islam, hence in Jamaluddin bin
Othman v. Menteri Hal Ehwal Dalam Negeri, Malaysia
& Anor [1989] 1 MLJ 368, the applicant practise and
propagate Christianity. It was held that the Minister
has no power to detain him under ISA since it deprive
a person of his right to profess an practise his religion
guaranteed under Article 11 of the Constitution.
44
45. RESTRAINT TO ARTICLE 11
• In Halimatussadiah v. Public Service Commission, Malaysia
& Anor [1992] 1 MLJ 513, the court approved the dismissal
of a civil servant, wearing purdah on the ground that
Article 11(1) of the Constitution is intended to protect
absolutely the religious beliefs of the people but in
exercising religious practices, Article 11(5) of the
Constitution forbids any act which may lead to public
disorder or which may affect public health or public
morality.
45
46. RIGHT IN RESPECT OF EDUCATION
12. (1) Without prejudice to the generality of Article 8,
there
shall be no discrimination against any citizen on the grounds only
of religion, race, descent or place of birth—
(a) in the administration of any educational institution
maintained by a public authority, and, in particular, the
admission of pupils or students or the payment of fees;
or
(b) in providing out of the funds of a public authority financial
aid for the maintenance or education of pupils or students
in any educational institution (whether or not maintained
by a public authority and whether within or outside the
Federation).
46
47. RESTRAINT ARTICLE 12
• The right is subject to Art 152: national language
and Art 153:Bumiputra quotas respectively.
• The government had once rejected the
establishment of Chinese university known as
Merdeka University on the ground that the
university intends to promote Chinese language as
its medium of instructions. [Merdeka University v
Government of Malaysia [1982] 2 MLJ 243
47
48. RIGHT TO PROPERTY
13. (1) No person shall be deprived of property
save in accordance with law.
(2) No law shall provide for the compulsory acquisition or
use of property without adequate compensation.
48
50. RULE OF LAW
• We have covered in previous chapter.
• Constitutional protection for civil liberties
Rights to personal liberty, rights to life, protection from
double jeopardy, freedom of speech, assembly and
association and fair criminal trial.
• Right to equality
Equality before the law.
• Independence of judiciary should be guaranteed.
Judges must act impartially, without “fear or favour”.
Must treat all litigants who come before equally by
applying the same procedures.
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