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The Rakyat Guides 8. Fundamental

Liberties & Citizenship

December 2010

Learn about your Constitution in our other Rakyat Guides on What is the Federal Constitution?, Constitutional Institutions & the Separation of Powers, Federal-State Relations, Parliament, the Executive, the Judiciary, Sabah & Sarawak and Elections & Democracy!

What’s Next?

Citizenship by operation of lawThe majority of Malaysian citizens acquire citizenship by operation of law. For example, the following persons (amongst others) born before Malaysia Day (16 September 1963) are citizens by operation of law:-

• A person who immediately before Merdeka Day was a citizen of Malaya.

• A person who was born within the Federation on or after Merdeka Day and before October 1962.

The following persons born on or after Malaysia Day are citizens by operation of law:-

• A person born within Malaysia with at least one parent who at the time the person was born is either a citizen or permanent resident of Malaysia.

• A person born outside Malaysia whose father at the time of birth is a:-• citizen who was born in Malaysia; or • citizen who at the time of the birth was in the

service of Malaysia or of any State; or• citizen and the birth is registered at a

consulate of the Federation or with the Federal Government (if in Brunei or any other territory prescribed) within 1 year of (or any longer period allowed by the Federal Government).

• A person who is born in Singapore and at least one of the parents is at the time of the birth a Malaysian citizen.

• A person born within Malaysia who is not born a citizen of any other country.

Citizenship by registrationA woman who is married to a Malaysian citizen and whose marriage has been registered in Malaysia is entitled to be registered as a citizen if:-• she was married and her husband was a citizen at

the beginning of October 1962; or• the Federal Government is satisfied that she

has resided in the Federation for 2 years before the date of the application and intends to do so permanently, and that she is of good character.

A person under the age of 21 may be registered as a citizen if his/her parent is (or was at death) a citizen. The Federal Government may also register any person under the age of 21 in such special circumstances as it thinks fit.

The Constitution also provides for those who are entitled to be registered as citizens if they are born before Malaysia Day in the Federation or if they are persons resident in Sabah and Sarawak on Malaysia Day.

Citizenship by naturalisation The Federal Government may, in such special circumstances as it thinks fit or upon application made by any person of or over the age of 21 and who is not a citizen, grant a certificate of naturalisation if the person has resided in the Federation for the required period and intends to do so permanently, is of good character and has adequate knowledge of the Malay language.

Citizenship by incorporation of territoryIf a new territory is admitted into Malaysia after Malaysia Day, Parliament may determine who from that territory is to be a citizen.

1. I believe my right has been deprived / violated by the authorities. What should I do?You may bring an action in Court. The Court will assess whether your fundamental liberties have been violated and if so, the Court can declare the violations not legal.

2. Are my fundamental liberties absolute?They are not absolute. The Constitution sets out different ways your liberties can be restricted. However, the Courts have said that the fundamental liberties under the Constitution must be applied as widely as possible and any laws that limit them must be applied as narrowly as possible.

3. What is SUHAKAM?The Human Rights Commission of Malaysia (SUHAKAM) is a body set up under an act of Parliament to provide education on human rights, to advise and assist the Government on human rights laws and disputes and to inquire into complaints regarding infringements of human rights. For more information about SUHAKAM, please refer to their website at www.suhakam.org.my.

4. I am a Malaysian who acquired citizenship through operation of law. Can my citizenship be terminated?The Federal Government can only deprive you of your citizenship if it is satisfied that you have acquired citizenship of another country or if you have voluntarily claimed and exercised in another country rights only given to citizens of that country.

Frequently Asked Questions

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Fundamental liberties are rights and freedoms that we have as human

beings. Some fundamental liberties are set out in the Constitution. Because these rights and freedoms are set out in the Constitution, they are said to be “guaranteed” and cannot be taken away from us unless the Constitution itself allows it.

Article 5 – Right to life andpersonal libertyEvery person has a right to life and liberty. A person’s life or personal liberty cannot be taken away unless it is in accordance with law. The Courts have said that the right to life includes a right to livelihood and quality of life, while the right to liberty includes the right to privacy.

A person who is arrested or detained:-• must be informed as soon as possible of the grounds

of the arrest;• has the right to consult and be defended by a lawyer

of his/her choice (this is known as ‘access to legal representation’); and

• must be brought before a magistrate within 24 hours and cannot be detained further unless it is with the authority of the magistrate, known as a ‘remand order’.

Article 6 – No slavery or forced labourNo one can be made a slave or forced to work. However, Parliament may make laws to require Malaysians to provide compulsory national service. Work or service required from a person who is convicted of a crime is not considered forced labour.

Article 7 – Protection against retrospective criminal laws and repeated trialsA person cannot be punished for something which at the time when it was done was not an offence. For example, if a law is passed to make it illegal to drive past a speed limit of 80km/h, a person driving past that speed limit before the law is passed cannot be punished. This is known as the prohibition against retrospective criminal laws.

If the punishment for a crime is increased, a person who committed the crime before the punishment was increased cannot be given that increased punishment. For example, if the law is amended to change the punishment for breaking a speed limit from a fine to a prison sentence, a person breaking the speed limit before the law is amended cannot be punished with a prison sentence.

A person who has been acquitted or convicted of an offence shall not be tried again for the same offence, unless the conviction or acquittal is quashed (set aside) and a retrial is ordered.

Article 8 – EqualityAll persons are equal before the law and entitled to equal protection of the law.

Unless the Constitution says so, citizens cannot be discriminated only because of their religion, race, descent, place of birth or gender:-

• under any law • in the employment by a public authority; or • in how any law is applied relating to property or any

trade, business, profession, vocation or employment.

However, Article 8 does not apply to:-

• laws regulating personal law• laws relating to office or employment connected

with any religion or religious institutions

• laws for the protection, well-being or advancement or the reservation of a quota of employment in the public service for the Orang Asli of Peninsula Malaysia

• laws that say that a person to be elected or appointed into a State authority, and any person who can vote in such elections, must reside in that State

• laws in the Constitution of a State that were made before Merdeka Day (31 August 1957);

• laws restricting enlistment in the Malay Regiment to Malays.

Article 9 – Freedom of movementA Malaysian citizen cannot be banished or excluded from the country. In general, every citizen has the right to move freely and stay in any part of the country except where any law is passed relating to the security of the country, public order, public health or the punishment of offenders.

The special position of Sabah and Sarawak compared to other States also allows for laws to be made to control who can enter and stay in Sabah and Sarawak. We talk about the special interests and safeguards for Sabah and Sarawak in The Rakyat Guides: 7. Sabah & Sarawak.

Article 10 – Freedom of speech, assembly and associationCitizens have freedom of speech, assembly and association but these freedoms may be restricted by Parliament for reasons permitted by the Constitution. The Courts have said Parliament may only impose restrictions where they are reasonably necessary.

Freedom of speech and expressionEvery citizen has the right to freedom of speech and expression. However, Parliament may make laws to restrict this right if they are necessary or expedient in the interest of:-

• the security of Malaysia;• friendly relations with other countries;• public order or morality; or• the protection of the privileges of Parliament or

any State legislative assembly or to provide against contempt of court, defamation or incitement to any offence.

In imposing restrictions on the freedom of speech and expression in the interest of the security of the country or public order, Parliament may pass laws prohibiting the questioning of matters relating to citizenship, the national language, the special position of Malays and the natives of Sabah and Sarawak and sovereignty of the Rulers. However, it is not illegal to comment on the implementation of these matters.

Right to assemble peaceably and to form associations All citizens have the right to assemble peaceably and without arms, and to form associations. However, Parliament may make laws to restrict these rights if they are necessary or expedient in the interest of:-

• the security of the country; or• public order.• morality (only for the right to form association).

Parliament can also make laws to restrict the right to form associations in relation to labour and education.

Article 11 – Freedom of religionEvery person has the right to profess or practise his/her religion and to propagate it.

However, laws may be passed to control or restrict the propagation of any religion, doctrine or belief among those professing the religion of Islam.

A person cannot be forced to pay any tax where the money will be used for purposes of a religion which is not his / hers. Every religious group has the right

The Yang di-Pertuan Agong (“YDPA”) must protect:-

• the special position of the Malays and natives of Sabah and Sarawak; and

• the legitimate interests of other communities in Malaysia.

In relation to the special position of the Malays and natives of Sabah and Sarawak, a quota that the YDPA feels is reasonable may be kept for Malays and the natives of Sabah & Sarawak:-

• for employment in the public service (other than public service of a State);

• for scholarships, exhibitions and other similar educational or training privileges or special facilities; and

• for permits and licences when a permit or licence for the operation of any trade or business is required by Federal law.

There are 4 ways a person can become a Malaysian

citizen:-

• by operation of law;• by registration;• by naturalisation; or• by incorporation of territory.

to manage its own religious affairs, establish and maintain institutions for religious/charitable purposes and acquire and manage property.

Article 12 – Rights in respect of educationIn relation to the following matters, no citizen can be discriminated only because of religion, race, descent or place of birth:-

• in how any educational institution run by a public authority is administered, including in the admission of pupils / students or the payment of fees; or

• in how any public authority’s money is used for the maintenance or education of pupils or students in any educational institution.

A person is not required to learn or take part in any ceremony or act of worship of a religion other than his / her own. For this purpose, the religion of a person under the age of 18 shall be decided by his / her parent or guardian.

Every religious group can establish and maintain institutions for the education of children in its own religion. There shall be no discrimination on the ground only of religion in any law relating to such institutions. However, the Federal or any State Government can set up or help set up Islamic institutions, provide or assist in providing instruction in the religion of Islam and incur expenditure for this purpose.

Article 13 – Rights to propertyA person’s property cannot be taken away unless the law allows it. However, if a law allows for a person’s property to be taken away, that law must provide that the person is paid adequate compensation for the property.

What are fundamental liberties?

The FundamentalLiberties guaranteed

under the Constitution

Special position of theMalays and natives of

Sabah & Sarawak

How do you become aMalaysian citizen?

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