Part II of the Malaysian Constitution enshrines the nine human rights for Malaysia. They are:

(1) Article 5 – The right to life and personal liberty;

(2) Article 6 – The right to freedom from slavery and forced labour;

(3) Article 7 – The right to protection against retrospective laws and repeated trails;

(4) Article 8 – The right to equality before the law and protection against discrimination;

(5) Article 9 – The right to freedom of movement;

(6) Article 10 – The right to freedom of speech, expression, assembly and association;

(7) Article 11 – The right to freedom of religion;

(8) Article 12 – The right to education;

(9) Article 13 – The right to property.


After 28 years of operation and experience of the Malaysian Constitution, on e is entitled to ask whether Part II of the Constitution entrenches fundamental rights or fundamental wrongs of Malaysians.

In the last three decade of Malaysian nationhood, the fundamental liberties enshrined in the Constitution had been relentlessly qualified and emasculated of most of their content and meaning, whether by constitutional amendments, parliamentary legislation, emergency powers or administrative flats.

For instance, there are at least 25 laws qualifying Article 5 on the Right to life and personal liberty, including the Internal Security Act, Essential Security Cases Regulations, Emergency Ordinances. The fundamental liberties of freedom of speech, expression, assembly and association are qualified by the Sedition Act, 1948; the Official Secrets Act 1972; the Universities and University Colleges Act 1971; the printing Press and Publications Act 1984; the Societies Act 1966; the Trade Unions Ordinance; the Plice Act, among others.

The Reid Constitutional Commission Report 1957 had this to say on its recommendation on ‘Constitutional guarantees on Fundamental Rights’:

“161. A Federal constitution defines and guarantees the rights of the Federation and the States: it is usual and in our opinion right that it should also define and guarantee certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life. The rights which we recommend should be defined and guaranteed are all firmly established now throughout Malaya and it may seem unnecessary to give them special protection in the Constitution. But we have found in certain quarters vague apprehensions about the future. We believe such apprehensions to be unfounded, but there can be no objection to guaranteeing these rights subject to limited exceptions in conditions of emergency and we recommend that this should be done. The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to enforce these rights and to annul any attempt to subvert any of them whether by legislative or administrative action or otherwise. It was suggested to us that there should also be written into the Constitution certain principles or aims of policy which could not be enforced by the Courts. We do not accept this suggestion. Any guarantee with regard to such matters would be illusory because it would be unenforceable in law and would have to be in such general terms as to give no real security. Moreover we do not think that is either fight or practicable to attempt to limit developments of public opinion on political, social and economic policy.”


It is clear from the above extract that Part II of the Malaysian Constitution on Fundamental Liberties are not merely statements of intent providing illusory comfort, but legally enforceable guarantees; and the Reid Commission envisaged activist Judiciary to uphold both the spirit and letter of Constitutional guarantees to even ‘annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’.

Unfortunately, the history of the Malaysian Constitution in the last 28 years is the history of the subversion of the constitutional guarantees on fundamental liberties, without any court standing up to strike them down to uphold the Constitution ideals.

Malaysian judges have proved to be too executive or establishment-minded to live up to the Reid Commission’s expectations, following strictly the formalistic requirements of legality and justice, without giving sufficient corresponding attention to the spirit of the Constitution. Reid Commission must have expected a few budding Lord Denings in Independent Malaya to safeguard the constitutional ideals, but no Lord Denning has yet emerged in Malaysia after 28 years.

I am not putting the entire blame for the erosion of the Constitutional guarantees on the Courts, for if there is any branch of Government which must bear the biggest responsibility it is Parliament itself.

As apex of our system of government, Parliament is meant to be the custodian of fundamental liberties and Constitutional ideals. But in the last 28 years, Parliament has not only failed to protect the fundamental liberties enshrined in the Constitution to check against excesses of the Government of the day, Parliament aided and abetted in the erosion of fundamental rights.

Ever since Merdeka, the government had a two-third-and since the Seventies a fourth-fifth – parliamentary majority but this is not a responsible parliamentary majority which could distinguish between the interests of the government of the day and the interests of the nation, and often than not vote blindly according to the party dictates.

The 1983 Constitutional Amendment is the best example, where Government MPs engaged in the ‘wayang kulit’ of passing one of the most important amendments to the Malaysian Constitutional by pretending that they don’t exist, until the Constitutional crisis erupted publicly in a confrontation between the Rulers and the UMNO.

Children play blind-fold games, but Malaysian Government MPs also play blind-fold games in Parliament. Government MPs have now become so good at this that last week they voted in rejection of the Fifth Parliamentary Accounts Committee Report without realizing it. What must cap it all is that the Chairman of Fifth PAC, now a mere backbencher in the Sixth Parliament, also voted to reject his own PAC Report. This must be the only instance of parliamentary `filicide` – `killing of son or daughter` – in Commonwealth Parliamentary history.

Two days ago, one Government MP stood up during question time to ask about the meaning of the motion suspending MP for Jelutong, Karpal Singh, from the House. Clearly, when this MP voted for the motion last year, he did not understand what it stood for.


I have disgraced to show how irresponsible the Malaysian Parliament could be.Similarly, by allowing itself to be reduced to a mere rubber stamp of the Executive, and abdicating from its responsibility as the bulwark of the fundamental rights and the Constitutional spirit and ideals, Parliament as presently constituted has become their greatest threat instead.

Parliament’s abdication from its responsibility to protect fundamental rights and check on the abuses of government power stems from two areas of negligence.

Firstly, failing to give adequate debate, study and scrutiny to proposed Constitution amendments or legislation which infringes or abrogate from the fundamental liberties enshrined in the Constitutional.

Secondly, failing to exercise its Constitutional responsibility in exercising a check on government excesses of power, particularly in the exercise of emergency powers by the Executive.

Malaysia has experienced only four years out of the 28 years of Independence without the existence of Emergency Proclamations and laws, i.e. from 30th July 1960 until 3rd September 1964.

Article 150 of the Malaysian Constitution relating to powers of Emergency Proclamation had been emended six times, in 1960, 1963, 1966, 1981, 1983 and 1984.

Apart from the First Emergency, which lasted from 1948-1960. Four Proclamations of Emergency had been issued since Merdeka Day 1957. The first of these four proclamations was made on 3rd September 1964 to deal with the Indonesian Confrontation; the second on 14th September 1966 in respect of Sarawak to topple the Sarawak SNAP Chief minister, Stephen Kalong Ningkan; the third on 15th May 1969 arising from the May 13 riots; and the fourth on 8th November 1977 in respect of Kelantan to oust the PAS State Government.


Out of these four proclamations of emergencies, two of them, in 1966 and 1977, were clearly abuses of states of emergency to achieve the political objectives of the ruling government.

In any event, the situations which called for the proclamation of emergencies had long ceased to exist, but none of these four Proclamations of Emergency had been revoked or annulled. And all the emergency laws made under the four states of emergency are still in force.

It is clear that the states of emergency are not only being abused by the Executive, as I the case of Sarawak in 1966 and Kelantan 1n 1977, they are being unconstitutionally perpetuated so that Malaysia is not only under a state of permanent emergency, but quadruple.

States of Emergency are the greatest threat to fundamental rights, for when an emergency is proclaimed under Article 150, Fundamental rights enshrined in the Constitution could all be derogated away. When Parliament is not in session, the executive is empowered to legislate through ordinances and such ordinances can be contrary and repugnant to the fundamental liberties, guarantees or any other provisions in the Constitution, except on matters relating to Muslim law, Malay custom and native law or custom in Sabah and Sarawak.

Parliament can even suspend or amend State Constitutions as happened in Sarawak in 1966 and Kelantan in 1977.

These vast powers could be productive of great abuses and misuses, and this is why the Reid Commission had provided safeguards against abuses of States of Emergency by stipulating that a Proclamation of Emergency would be valid only for two months unless it was approved by Parliament and that Emergency Ordinances would cease to have effect fifteen days after the first sitting of Parliament.

In 1961, this Article was amended to provide that both the Proclamation and the Emergency Ordinance would cease to have effect only when revoked or annulled by Parliament.


But since the issue of the first post-Merdeka Proclamation in 1964, not a single Government MP had ever raised his voice in Parliament to question the abuses of States of Emergency when the situations which warranted their proclamation had long ceased to exist.

In June 1979, I moved a motion in Parliament to annul the four Proclamations of Emergency, but although the motion was rejected the Government could not give any reason why it needed four Proclamations of Emergency. The Executive did not even bother to justify itself.

It is such shocking abdication of parliamentary duties and responsibilities by Government MPs that Parliament as presently constituted poses such a great threat to the fundamental liberties in the country.

The Secretary-General of International Commission of Jurists, Niall MacDermot, aptly put it when he said in his introduction to the ICJ’s Study on ‘States of Emergency – Their Impact on Human Rights’ in 1983:

“There is a frequent and perhaps understandable link between states of emergency and situations of grave violations of human rights. The most serious violations tend to occur in situations of tension when those in power are, or think they are, threatened by forces which challenge their authority if not the established order of the society.

“Article 4 of the International Covenant on Civil and Political Rights recognizes the right of governments ‘in time of public emergency which threatens the life of the nation’ to derogate, with certain exceptions, from their obligations under the covenant, ‘to the extent strictly required by the exigencies of the situation’.

Unfortunately there is a tendency for some governments to regard any challenge to their authority as a threat to ‘the lift of the nation’.”

In Malaysia, the Executive has not only imposed the `reason of government` as the `reason of state` to justify the declaration of states of emergencies in Sarawak in 1966 and Kelantan in 1977, the Executive seems to have become so addicted to Emergency powers that it could not dispense with them.

Parliament is now the only check against abuses of states of emergency to achieve its political objectives that there are those who are trying to create conditions to escalate the political and constitutional crisis in Sabah to provide the justification for the Federal Government to declare a state of emergency in Sabah.

This would enable the USNO and Berjaya to achieve what they failed in the April general elections in Sabah, to come to power or to share in power, forcing the ouster of PBS or compelling it to form a coalition government.


On trial in Sabah is not just the PBS Government of Datuk Joseph Pairin Kitingan, but the whole system of parliamentary democracy in Sabah and Malaysia.

The Sabah political and constitutional crisis is an entirely artificial crisis, as the PBS Government had an overwhelming majori8ty (though short of two-third majority) which is substantial and comfortable enough for the government to rule for the full term of five years.

There is no moral, political, legal or constitutional reason for the protracted political and constitutional crisis in Sabah, except as an undemocratic attempt to rob the Sabah people of their verdict.

For the sake of the healthy growth of parliamentary democracy and national unity, I hope that the Prime Minister would be able to give a firm and categorical assurance to Malaysians that the Federal Government would not invoke Article 150 to create another State of Emergency in Sabah to achieve the political objectives of the government parties.

Already there are rumours that the Berjaya Persident would be appointed Chairman of Sabah National Operations Council in the event of a declaration of emergency in Sabah.

I hope that after nearly 30 years of nationhood, democratic ideals and values would have struck firmer root in Malaysian soil, where we are prepared to accept the electoral verdict and judgement of the people without resorting to undemocratic methods to thwart them.

Professor H.L.A Hart has said democracy does not mean the majority (in this case, the national parliamentary majority) have a moral right to dictate how all should live.

The legitimacy of the Federal government may come from elections, but the legitimacy of the state comes from its compliance with the criteria of a parliamentary democracy.

This is why there must be a clear distinction between the government in power and the state; that `reasons of government` must not be elevated to `reasons of state` to justify action not because the safety of the state is threatened, but because the survival of the government elite is under attack.


As Parliament presently constituted has failed to become the protector of fundamental liberties, and become its greatest threat, the denial of the government two-third parliamentary majority is crucial in the human rights struggle in Malaysia.

Without a two-third parliamentary majority, the Executive would not be able continue to mutilate the Constitution (to date, over 1,000 amendments had been made to the Constitution) by amending the constitution at its whim and fancy, fully confident in the blind approval of its parliamentary majority.

It would force the Executive to give serious consideration to any future constitutional amendments for it would have to win the support of Opposition MPs on the merits of the amendments if it is to secure the needed two-third majority.

Furthermore, the denial of the two-thirds parliamentary majority first time in the history of Malaysian elections would be a strong signal to the Executive of the people’s disapproval of its curtailment of fundamental liberties and abuses of states of emergency and the need for a restoration of the fundamental rights.

It is for this reason that I think the next general elections which is not expected to be far off will be an important milestone in the human rights battle in Malaysia and no efforts should be spared achieve the electoral breakthrough of denying the government its two-thirds parliamentary majority.


On the whole wide front, fundamental rights are coming under increasingly severe attack.

The report today of Official Secrets Act charge against another journalist within a month marks the tightening of the screw on the press by the government, to put greater impediments to the basic fundamental right of freedom to seek, receive and impart information which is a pre-condition to the fundamental right of freedom of expression and opinion as well as of free elections.

The increasing ownership and control of newspapers in all languages by government component parties pose a new major threat to freedom of press, expression and opinion.

The Sedition charge of the Bar Council Vice President, Param Cumaraswamy, while the refusal in Parliament to disclose the criteria used by Attorney-General’s used to decide on prosecution under Section 3 of the Sedition Act, 1984, in particular why no one was prosecuted during the 1983 Constitutional crisis when there were a lot of attacks on the Rulers, revealed not only the arrogance of power, but also the frightening unaccountability of vast discretionary powers in the hands of the Attorney-General.

R.H Hickling, the Parliamentary Draftsman of the obnoxious Internal Security Act 1960, in an article in the June/Dec. 1984 issue remark about the 1983 Constitutional crisis:

“Indeed, one of mysteries of the whole affair lies in the question how the matter of the position of the Rulers ever fell into the arena of parliamentary debate, given the provisions of article 63(4) (of Malaysian Constitution) and the sedition Act (as amended by the Emergency Essential powers) Ordinance No. 45, 1970): still less, that public meetings should have been held on the matter. It is not only Alice who finds herself in Wonderland.”


For the first time since Merdeka, there is widespread fear that the problem of religious polarisation may add to the twin problems of racial and class polarisation in Malaysia.

The growing demand for an Islamic state, the claim by the government leaders that Malaysia is already an Islamic state, the relentless process of Islamisation, coupled with the growing intolerance by state and local government authorities to the traditional freedom of the practice and profession of non-Muslim religions, the insensitivity to the growing concern of the non-Muslim to the increasing government indifference to their problems, are bringing a new and worrisome dimension to problems of nation building in Malaysia.

The Reid Constitutional Commission Report recommended that freedom of religion should be guaranteed to every person including the right to profess, practice and propagate his religion subject to the requirements of public order, health and morality, and that, subject also to these requirements, each religious group should have the right to manage its own affairs, to maintain religious or charitable institutions including schools, and to hold property for these purposes.

In 1976, this guarantee was eroded by removing the fundamental right of the other religious to maintain schools.


The right to equality before the law and protection against discrimination is also under attack, as more and more Malaysians feel that they are victims of racial discrimination by administrative actions and measures.

The time has come for the establishment of a Commission against Racial Discrimination to give meaning and substance to the fundamental right enshrined in Article 8(2) against racial discrimination.

I do not propose to deal with these various fundamental rights, together with the continued use of the Internal Security Act to detain persons for indefinite period without trial, as they would be dealt in depth by others during the Convention, but to mention them to show the gloomy landscape of human rights in Malaysia.


Human rights is not a luxury, but a pre-condition of democracy and rule of law. As long as human rights are respected, democracy is secure and the danger of dictatorship is more remote. The first steps towards authoritarian and dictatorial rule is the gradual suppression of fundamental liberties.

Only Malaysians themselves can reverse the tide of erosion of our fundamental liberties. There must go out to all Malaysians a Call to action to defend and develop human rights to strengthen the democratic system and the rule of law.

We hope that this Human Rights Convention would be able to make a contribution to the heightening of greater public consciousness and commitment to the restoration of what are our birthrights as human beings.