Article 10 of The Constitution of Malaysia - Legal Criticism

Legal Criticism

Legal scholars have suggested that compared to other fundamental liberties set out in Part II of the Constitution, the freedoms of speech, association and assembly are easily abridged by both the executive and legislative branches of the government. Most of these freedoms, such as freedom from slavery, double jeopardy, etc., are not subjected to the same exclusions as set out in Article 10(2), (3) and (4). Instead, they are rights which are guaranteed without any qualification. The rights of Article 10 are subject to the exclusions of the aforementioned clauses. Under Articles 149 and 150, during a state of emergency, the executive is granted the power to legislate, even if the resulting laws contravene the Constitution; however, this power does not extend to any matter pertaining to Islamic law, Malay customs, the customs of the indigenous peoples of Sabah and Sarawak, religion in general, citizenship, and language. In light of this, one scholar (Shad Saleem Faruqi) has gone as far as to argue that:

...the only genuinely safeguarded provisions of the Constitution are not those contained in Part II but those given under Article 150(6A). They enjoy greater sanctity and are more entrenched in the Constitution than any other rights.

It has been remarked that although the "fundamental" rights of Article 10 were not entrenched, other portions of the Constitution — namely those related to the Malaysian social contract such as those provisions concerning the national language of Malay, the national religion of Islam, the position of the Malay rulers, the special position of the Malay majority, and citizenship — were entrenched. These provisions may only be amended with the consent of the Conference of Rulers — a body comprising the Malay rulers and the Governors of those states without a monarch. In criticising the Reid Commission's finding that the freedoms of Article 10 were "all firmly established in Malaya" prior to independence, it has been suggested that:

...these basic rights had not been clearly formulated or seen as being concrete and traditional. In contrast, what were really regarded as 'traditional elements' of the Constitution were matters of citizenship (Part III), the special position of the Malays (Article 153), the national (Malay) language (Article 152), and the sovereign rights of the Rulers (Article 181).

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