Week 4 Tutorial

A constitution embodies the core values of a society in the form of a system of laws
which act as a base for the government and control of the nation. A constitution will entail all the
relevant functions of a government as well the organization of it, the separation between the
organs of a government as well as the rights and duties of the citizens. A constitution can be
classified as written and unwritten.

Written and unwritten constitutions can be said to be the same kind. This is so because
both are designed to serve as the fundamental and basic law of a country. It establishes the
fundamental framework or organizational structure of the state while limiting the roles and
responsibilities of the various branches of the government. Additionally, it describes the
relationship between people and the state in that it aims to strike a fair balance between the
state's power and citizens' rights. In other words, these constitutions emphasize on the same
core values that describe how a nation's legal system and the control of the citizen should be
governed. On the contrary, it shows a big difference of a degree between written and unwritten
law which goes to say that the method of enforcement is notably unalike.

Firstly, the difference between a written and unwritten constitution are in terms of rigidity
and flexibility. Generally, written constitutions are rigid. This implies that making changes
to the constitution requires a more involved and lengthy procedure. In Malaysia, a two-thirds
majority vote in Parliament is normally needed to modify the constitution. Malaysia's constitution
also includes aspects of customary law, Islamic law, and the functions of the Malay Rulers.
These additions offer some flexibility and adaptability within the larger legal framework.
Meanwhile, unwritten constitutions are more flexible and subject to evolutionary change
through various sources and historical precedents. One of the factors that attributes to the
flexibility of an unwritten constitution is the absence of a single document. The unwritten
constitution is not codified in a single document as rules and principles of the constitution are
scattered in the forms of statutes, charters , political conventions and practices. No special
procedures are required to amend legislation. In New Zealand, collection of laws, customs, and
tenets form the foundation of the country's unwritten constitution. This constitution is thought to
be more flexible than one that is completely codified because it has been modified to suit
societal changes.

Secondly, the difference between a written and unwritten constitution are in terms of
Judicial Review. Written constitutions provide a clear and concise framework for judicial review.
The courts can simply compare a law to the constitution and strike it down if they find that it
violates a constitutional provision. This makes it easier for the courts to exercise their power of
judicial review in a consistent and predictable manner. In Malaysia, Article 128 of the Federal
Constitution of Malaysia confers on the Federal Court the power to determine the validity of any
law passed by Parliament or by a State Legislative Assembly. This power is known as judicial
review. Meanwhile, Judicial review in countries with unwritten constitutions is more complex.
The courts must first identify the unwritten constitutional principles that are being violated by the
law in question. This can be a difficult task, as there is no single source of unwritten
constitutional law. Once the courts have identified the relevant constitutional principles, they
must then determine whether the law violates those principles. This can be a subjective and
difficult judgment to make.

Thirdly,in a written constitution, the constitution is supreme however in an unwritten

constitution the parliament is supreme. For instance, the Federal Constitution in Article of
Malaysia is the supreme law of the land as stated in Article 4 (1). According to the case of
Suffian LP in Ah Thian v Government of Malaysia [1976]1MLRA 410 doctrine of Parliament
supremacy is not applicable in Malaysia because there is a written law or Constitution and not a
written but uncodified constitution in the United Kingdom where the supremacy of Parliament is
applicable so, the power of Parliament and State Legislatures in Malaysia is restricted by
Federal Constitution and they cannot make any law as they please.

In conclusion, written and unwritten constitutions, while both serving as fundamental

frameworks for a nation's governance, exhibit significant differences in terms of rigidity and
flexibility, judicial review, and their ability to address emergency situations. An unwritten
constitution is often perceived as a more unconventional form of constitution as in the country of
the United Kingdom. Malaysia on the other hand has established the written constitution.
Regardless of codified or uncodified, the constitution usually serves the same purpose.
Week 5 Tutorial

Constitutionalism is a set of principles and values that aim to limit political authority in
general, and the government's power over citizens in particular. Constitutionalism comprised
two key elements, rights provision and structural provision. According to Lord Acton, all power
tends to corrupt and absolute power corrupts absolutely. From this, it is said that the constitution
allows a certain level of control of the government and this is interrelated with the doctrine of
separation of powers. In Malaysia, the Federal Constitution has instilled a set of principles in
order to uphold constitutionalism to avoid the misuse and abuse of the government.

To begin with, the theory of separation of powers is a fundamental concept in

Constitutionalism. The theory, developed by Montesquieu, provides for a very strict separation
of the three branches of government that is the legislative, executive and judicial. These
branches according to this doctrine must stay independent and separate from each other and
that these three main organs in a state should be vested with one function. The idea that more
than one function is granted to a governmental organ threatens the individual liberty as it is
considered that absolute power would be granted and corrupted. In Malaysia, the doctrine of
separation of powers is not fully vested as there exists an overlap between certain organs in the
government. For example, the legislative and executive branches overlap as stated in Article
43(3) of the Federal Constitution, which mentions that the Cabinet shall be collectively
responsible to Parliament. Aside from that, cabinet members that consist of members of
Parliament will push to make laws or propose legislative ideas to the Parliament. The judiciary
and executive branches also have interference and this can be seen in the case of PP v Kok
Wah Kuan in 2007. The case illustrates that when it comes to convicting a sentence, the power
is vested by the YDPA that is the head of executive in determining the sentence. This
contravenes the doctrine of separation of powers because it gives the discretion to the
executive power despite the fact that judicial decisions are to be determined by the judiciary.
However, in certain countries like America, the country obeys a strict doctrine on separation of
powers whereby their three branches of government do not intertwine at all.
Secondly, the theory of rule of law. The rule of law checks government abuse of power in
a number of ways. First, the legality principle requires the government to act in accordance with
the law. In Article 4(1): This Constitution is the supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void. This means that the government cannot simply do whatever it wants,
even if it is in power. Second, the controls on discretion principle limits the government's power
by laws and regulations. In Article 5(1): No person shall be deprived of his life or personal liberty
save in accordance with law. This means that government officials cannot simply use their
power to benefit themselves or their friends and family. Third, the impartial system of justice
principle ensures that everyone is treated equally under the law. In Article 8(1): All persons are
equal before the law and entitled to the equal protection of the law. This means that the
government cannot favor one group of people over another, even if it is in power. Fourth, the
just legality principle requires the laws themselves to be just. In Article 9(1) No citizen shall
be banished or excluded from the Federation. This means that the government cannot make
laws that are unfair or that promote discrimination. Fifth, the socio-economic justice principle
requires the rule of law to promote social and economic justice. In Article 6(1) No person shall
be held in slavery. This means that the government cannot use the law to benefit the wealthy
and powerful at the expense of the poor and marginalized. Sixth, the effective government
principle requires the government to be able to effectively enforce the law. In Article 145 (1)
The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person
who is qualified to be a judge of the Federal Court to be the Attorney General for the
Federation. This means that the government must have the resources and the capacity to
uphold the rule of law.

Thirdly, check and balances is a process where each branch of government, namely
executive, legislature and the judiciary have powers to negate the actions of the others.
Besides, the system of checks and balances comprises multiple institutions, and its purpose is
to prevent, among other things, the concentration of power in a single direction. Furthermore, it
aims to curb the excessive wielding of authority by any branch, essentially limiting the exercise
of lawful powers. In Article 39 of the Federal Constitution, this article establishes the Yang
di-Pertuan Agong (the King) and outlines the constitutional role of the monarchy in Malaysia.
The King's powers are limited by the Constitution, and the monarchy plays a ceremonial role,
serving as a check on the executive branch. Meanwhile in Article 40, This article outlines the
discretionary powers of the Yang di-Pertuan Agong and the role of the Prime Minister in advising
the King. The King's actions are subject to constitutional constraints, and the Prime Minister's
advice must align with the Constitution, ensuring a balance of power. For example, In addition to
these three main branches, there are other institutions and bodies in Malaysia, such as the
Election Commission and the Malaysian Anti-Corruption Commission, which play roles in
maintaining checks and balances in various aspects of government and public administration.
Another instance which can be included is legislative confirmation on executive appointments in
the American constitutional system, as well as the right to be consulted given to the Conference
of Rules in the Malaysian constitutional system. This can be seen in the case of Indira Gandhi
Muto v. Pengarah Jabatan Agama Islam Perak & Others (2018) where this case addressed
the issue of religious conversion of minors without the consent of one parent. It highlighted the
need for the judiciary to balance the power of religious authorities with the constitutional rights of
individuals. The court's decision demonstrated the importance of checks and balances in
protecting individual rights.

Finally, limited government. A limited government isn't just chosen through periodical,
free, and fair elections; it also has its powers restricted or constrained. A limited government
further supports and clarifies the principles of the separation of powers, the rule of law, and
responsible government. The limited government in Malaysia is illustrated through institutional
monarchy with a parliamentary democracy. The monarchy's powers are largely ceremonial, and
the monarch (Yang di-Pertuan Agong) is bound by the constitution. This is as explained in
Section 32(1) of the Federal Constitution, where YDPA is only the supreme head of the
Federation. This reflects the limitation on the powers of the head of state, with actual
governance carried out by elected representatives. Also, Malaysia separates the powers of the
government into three branches: the executive (Prime Minister and Cabinet), the legislative
(Parliament), and the judiciary (courts). This separation helps prevent any one branch from
becoming too powerful and reinforces the idea of limited government. In this context, a
responsible government means that a minister should resign if their ministry's policies fail.
Additionally, ministers should be accountable, meaning they must inform the legislative body
about the situation and the actions taken to address the problem. If he fails so, he shall resign
from his position.The government must also maintain law and order to ensure social, economic,
and legal justice.
 To conclude, constitutionalism is vital to prevent abuse and misuse of governmental
power. It gives huge implications in controlling the use of power in each branch of government.
All in all, the concept of constitutionalism is crucial in order to prohibit the existence of
dictatorship and arbitrary rule.

Rights provision comprises safeguards for political rights like free speech, association, and so
on, which act as legal limitations on the political process. Structural provision includes the
separation of powers and the representative system. All are present to ensure that the
government acts in the best interests of the general people, rather than the self-interested
representatives.
Week 6 Tutorial

1) written and rigid constitution

2) Division of powers
- The power between the federal government and the state government is divided and
distributed either expressly in the Constitution or otherwise.
- Normally, the subjects of national importance such as defence, foreign affairs, railways,
communications, finance are entrusted to the central government whereas subjects like
education, health, agriculture etc. are looked after by state government
- The powers may also be distributed in one of the two ways: either the Constitution states
the powers that the federal authority shall have and leave the reminder to the state, or it
lists those powers the state government shall possess and leave the reminder to the
federal authority.
- For example, in the American federation the constitution defines the powers of the
federal authority and leaves the rest to the federating units.
- In Canada, it is the reverse i.e. the constitution prescribes only the powers of the
federating units and leave the rest to the central government.
- However, in India both the powers of the center and the units have been listed.
- In the US Constitution; These limited powers are set forth as what are termed
“enumerated powers” in Article I, Section 8 of the Constitution. These enumerated
powers include, among other things, the power to levy taxes, regulate commerce,
establish a uniform law of naturalization, establish federal courts (subordinate to the
Supreme Court), establish and maintain a military, and declare war.
- While the Constitution thus grants broad powers to the federal government, they are
limited by the 10th Amendment, which states that “[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”
-
3) independence of judiciary
4) supremacy of the constitution
Week 7 Tutorial

Constitutional conventions are considered a source of constitutional law that is not

legally made but rather is the custom that has been practiced by the parliament. According to
Sir Ivor Jennings, conventions are the flesh which clothe the dry bone of the law because they
make the legal constitution work. Professor Shad Saleem Faruqi defines conventions as a
political behavior that is obligatory, it is considered as a constitutional morality and are non-legal
conventions. A convention supplements the convention and enables for informal changes to
happen despite the rigidity of a constitution. For instance, in the United Kingdom the crown acts
on advice of the Prime Minister and this a convention as there is no written constitution in the
country. In the statement above, conventions are a fundamental criteria in making a constitution
run smoothly due to several factors discussed below.

Firstly, constitutional convention may regulate the behavior or conduct of

members of parliament. The conventions are obeyed by members of parliament because of
political difficulties which may occur if they are not followed. Laws are enforceable judicially,
however conventions are not and no court of law would take notice of their violation. The only
sanctions against violators of conventions are political sanctions. The consequences of a
breach of convention are more commonly political than legal. There are many reasons why
political members adhere to conventions whether it be due to force of habit, fear of disrepute,
sense of obligation, political self-interest and proven utility conventions. An example of a
convention is that official state cars should be national cars such as Proton. However, in 2008
the Menteri Besar of Terengganu bought 14 Mercedes E200 cars at RM3.43 mil for the use of
its state executive councilors and senior officials. The political sanction received is that the
Prime Minister issued that the Terengganu officials cannot use those cars but instead to stick
with the convention of using local cars instead. So due to the fear of disrepute or being turned
down as the Menteri Besar, they must follow the convention. Although certain issues may seem
petty and trivial such as what type of car is used by members of parliament, these may lead to
a bigger issue at hand that is misuse of power. Therefore, without conventions, political
members of parliament may act with too much power as there might be no specific
legislation that stops them from doing so aside from their legislative duties.
 Secondly, conventions play a significant role in shaping judicial decisions and influencing
the development of the law. While judicial decisions are based on established customs and
traditions becoming a part of the fabric of legal practice, conventions provide an additional layer
of guidance that influences how judges interpret and apply precedent. For example, if a
convention has developed around a particular legal principle, judges may be more inclined to
follow that convention in their decisions, reinforcing and solidifying it as part of the legal
landscape. The influence of conventions on legal precedent is evident in various areas of law.
For instance, in constitutional law, conventions often play a significant role in shaping the
understanding and application of constitutional principles such as in Canada whereby there is
an unwritten convention that the Prime Minister must be a member of the House of Commons
which influences decisions related to the exercise of executive power. As judges rely on
established customs and traditions in their decisions, they contribute to the development of a
body of precedent that incorporates these unwritten norms. The next judges, in turn, may look to
this precedent and the associated conventions when deciding new cases. This repetitive
process will reinforce and purify legal principles over time.

Thirdly, when there is a gap in the law, conventions are used to fill it. When there's a
gap in constitutional law, these conventions play a crucial role. They are not legally enforceable
rules which are considered vital to enable the law's legal norms to function.They allow for
informal changes to occur, allowing for constitutional growth. These unwritten practices often
emerge from historical precedent, tradition, and the actions of key figures within the
government. They also help guide decision-making and ensure that the spirit of the constitution
is upheld, especially in areas where the written text might be ambiguous or silent. Conventions
can give rise to laws in the sense that if the convention is violated with impunity (exemption),
legislation to convert the convention into a statutory rule is often enacted. For example, in
Malaysia in 1993, some members of royalty disregarded their traditional duty to act with dignity
and restraint, resulting in the revision of Article 181 to enable a Special Court to try the Sultans
for civil and criminal wrongs. Besides that, conventions are more flexible than laws where
Conventions are created informally and can be modified or waived or restored in a like manner.
In times of constitutional crisis or other exceptional situations, conventions may be
departed from to serve the need of the day. But a written rule of law cannot be so easily
departed from.If the Prime Minister incorrectly advises dissolution, the Queen may refuse
dissolution. Laws are considerably more strict and precise, with greater precision and certainty
while conventions add flexibility to the working constitution. Through informal adjustments and
flexibility, conventions allow adaptation and constitutional evolution.

Fourth, convention to define the ambit or scope of constitutional discretion and the
manner in which it is exercised. Constitutional discretion refers to the authority granted by a
constitution to specific offices, branches of government, or individuals to make decisions in
certain areas without strict guidelines or detailed instructions. This discretion is often necessary
to allow for flexibility in addressing unique or unforeseen situations. Besides, conventions help
define the limits or boundaries within which constitutional discretion should be exercised.
They provide a set of expectations regarding how discretionary powers are to be used and
guide decision-makers in understanding the acceptable scope of their actions. Over time,
conventions create expectations about the appropriate exercise of constitutional discretion. For
example, conventions may dictate that certain decisions should be made after consulting with
relevant stakeholders, obtaining parliamentary approval, or considering public opinion.
Furthermore, conventions serve as a mechanism to ensure accountability in the exercise of
constitutional discretion. When decision-makers deviate from established conventions, they may
face political consequences or public scrutiny, even if their actions are not strictly illegal. It also
allows for adaptability and flexibility in the exercise of constitutional discretion. They
recognize that rigid rules may not cover all circumstances, and therefore, unwritten norms
provide a framework for making decisions in a manner consistent with constitutional principles.

In conclusion, The statement that "conventions are the flesh that clothes the dry bones
of a constitution" captures the essence of how unwritten practices breathe life into the formal
written framework of a constitution. Constitutions often lay out the skeletal structure of a legal
system, providing a foundational framework for governance and rights. However, without
conventions, these written laws might lack practical application or guidance in various situations.
Conventions, as the living and adaptable components, give practicality and functionality to the
constitutional framework, ensuring its relevance and effectiveness in governance and legal
matters.
Week 11 Tutorial

Issue 1
Whether Saza and Lana’s freedom of speech and expression under Article 10(1)(a) of the
Federal Constitution is violated?

Law
Article 10(1)(a) of the Federal Constitution states that every citizen has the right to freedom of
speech and expression. This freedom is given to any natural persons who are citizens and legal
persons such as companies, corporations and statutory bodies, however foreigners are not
protected as affirmed in the case of Dow Jones. This freedom of speech and expression covers
rights to political, artistic, and aesthetic fields, which includes word of mouth communication,
signs, symbols and gestures, through works of art, music, photography, video, books,
magazines and newspapers. In Malaysia, there is no direct authority on whether or not a right to
information exists. Referring to the case of Dow Jones, it is held that the right to access to
information is not part of the constitutional guarantee of free speech.

In the case of Lau Dak Kee v PP, the court ruled that Article 10(1) ensures the freedom of
speech, assembly and association for all Malaysian citizens. However, as much as Malaysian
citizens are given the rights to free speech, their rights are relative and not absolute as they are
subject to the limitations of the legislation enacted by the Parliament as prescribed in Article
10(2). In the case of Dewan Undangan Negeri v Nordin Salleh it was decided that parliament
may restrict freedom of speech only on the grounds specified in the federal constitution. It states
that in Article 10(2)(a) the parliament may impose restrictions in the interest of security of the
Federation or any part thereof, friendly relations with other countries, public order or morality,
contempt of court, defamation, or incitement to any offense. This means that no individual is
permitted to partake in actions that, under the agenda of opposing the government, endanger
the stability of the nation and society, even if such actions are claimed to be exercised within the
realms of freedom of speech, assembly, and association. Furthermore in the case of PP v Ooi
Kee Saik & Ors, Raja Azlan Shah stated that there can be no such thing as an absolute or
uncontrolled liberty completely free of restraint. Furthermore, in the case of PP v Pung Chen
Choon, the defendant was charged under S.8 of the Printing Press and Publication Act for
malicious publishing of false news. The Supreme Court ruled that the defendant could not use
Article 10(1) as a blanket restriction as Article 10(2) limits publishing false news as it falls
under defamation.

Additionally, Article 10(4) also imposes restrictions in the interest of security of the Federation
or any other part thereof or public order in Article 10(2)(a). It provides that parliament may pass
laws prohibiting the questioning of four politically sensitive matters which include the right to
citizenship under part III of the constitution, status of Malay language, position and privileges of
the Malay, native Sabah and Sarawak, and the prerogatives of the Malay Sultan and the Ruling
Chief of Negeri Sembilan.

Application
While Article 10(1)(a) grants the right to freedom of speech and expression, it is not an
absolute right outlined in Article 10(2)(a). Saza and Lana's social media posts, considered
seditious when they fall within the restricted grounds outlined in Article 10(2)(a) and as
reinforced by the case of Lau Daj Jee v PP. It is stated in Article 10(2)(a) that the parliament
may impose restrictions to the freedoms of speech and expression to maintain the public order
or morality.

Saza and Lana's social media posts, if deemed seditious, may be seen as exceeding the
acceptable limits of freedom of speech, as they allegedly pose a risk to public order or other
legitimate concerns. Saza and Lana had used their Instagram and Twitter to criticize the state
authorities and government for the actions taken by them. Due to their posts, it had sparked
outrage and angered the ruling party politicians and the public.

On top of that, as a result of their posts a series of rallies and demonstrations were held by ngo.
Hence, their freedom of speech given in Article 10(1)(a) is limited by Article 10(2) as it has
caused the disruption of public order peace. They also condemned the Sultan of Johore for
not taking any action which is restricted by Article 10(4).

Dewan Undangan Negeri v Nordin Salleh reinforces Parliament's authority to restrict freedom
of speech on grounds specified in the federal constitution. Saza and Lana's expression falls
within the restricted grounds of Article 10(2)(a).

PP v Ooi Kee Saik & Ors stated that freedoms are subject to reasonable restraints, and there
is no absolute liberty. Saza and Lana's social media posts, considered seditious and exceed the
reasonable restraints on freedom of speech, as they allegedly contribute to public unrest and
opposition against the government.

In light of PP v Pung Chen Choon, restrictions on freedom of speech may be imposed for
specific reasons outlined in Article 10(2). Saza and Lana's social media posts involve malicious
publishing of false news or statements that could be deemed defamatory,

Conclusion
In conclusion, Saza and Lana's right to freedom of speech and expression under Article
10(1)(a) of the Federal Constitution has not been violated as their remark on Twitter and
Instagram criticizing the state authorities and government for the action taken including
condemning the Sultan of Johore is considered as going against the limitation prescribed in
Article 10(2) and Article 10(4) of the Federal Constitution.

Issue 2
Whether Saza and Lana’s act of criticism on social media is an offense under the Sedition Act
1948?
Law
Section 2 and 3(1) states that any act, speech, words or publication are seditious if they have a
tendency towards any of the following, section 3(1)(a), where it said to bring into hatred or
contempt or to excite disaffection against any a or government like disloyalty. This can be seen
in the Param case where he makes a statement sound to have the tendency to bring hatred
toward the Yang di-Pertuan Agong.

Whereas, Section 3(1)(d) said to raise discontent or disaffection among the subjects of the
YDPA (Ruler) and Section (1)(f) to question the provisions dealing with language, citizenship,
special privileges of Malays and natives of Sabah & Sarawak and the sovereignty of the Rules
which can be seen in the case of Melan where the reporter had published an article on Utusan
Melayu with the sub-heading of “Abolish Tamil or Chinese medium schools in the country”
which was written based on the speech of one of the members of the parliament.

According to the Law of Sedition, the existence of ‘seditious tendency’ is sufficient enough for
the judge to make a decision. The intention to incite violence is not necessary in this matter.
Based on Section 3(3) of the SA 1948, the intention is deemed to be irrelevant.

Section 4(1) provides that the following act is an offense if any person, Section 4(1)(b), utters
any seditious words. This can be referred to the case of Mark Koding where the member of
parliament was charged with committing an offense contrary to the section 4(1)(b) of the
Sedition Act where he requested amendment of the Federal Constitution to delete the Article
152 (Bahasa Melayu). Another case that can be referred to is the case of Adam Adli where he
was also charged under the same section of the SA for uttering a seditious statement in a forum
where he allegedly questioned the result of election in 2013.

Application

Applying this situation, relating to Section 3(1)(a) of Sedition Act 1948, Saza and Lana
criticized the state authorities, government, and the Sultan of Johore on social media. The
criticism may have the tendency to bring into hatred or contempt or to excite disaffection against
the government and the ruler. Similar to Param’s case, where a statement had a tendency to
bring hatred towards the Yang Di-Pertuan Agong (YDPA), Saza and Lana’s criticism on social
media may be assessed for language and content that could be construed as bringing the
government or ruler into hatred or contempt. Saza and Lana's posts need careful examination to
identify elements that may be seen as having a seditious tendency under Section 3(1)(a).

Relating to Section 3(1)(d), In Melan’s case, an article led to discontent, providing a precedent
for assessing whether criticism has a seditious tendency to raise discontent or disaffection. This
is relevant to Saza and Lana’s situation where they confronted authorities about the destruction
of graves and mangrove forests. Therefore, Saza and Lana's social media criticism needs to be
analyzed for any tendencies that could be construed as raising discontent or disaffection under
Section 3(1)(d).

Under Section (1)(f), referring to Melan’s case again, where provisions dealing with language
were questioned, Saza and Lana’s criticism on destruction of graves and mangrove forests may
be assessed for any statements that question provisions related to sovereignty under Section
(1)(f).

According to Section 3(3), Saza and Lana’s social media posts must be evaluated for a
seditious tendency, without requiring proof of an intention to incite violence. The criticism they
voiced could be assessed under this section to determine if it falls within the scope of the
Sedition Act.

Relating to Section 4(1)(b), the case of Mark Koding and Adam Adli emphasizes that Saza
and Lana’s criticism on social media, particularly regarding the destruction of ancestral graves
and mangrove forests, should be analyzed for any utterances that may be deemed seditious
under Section 4(1)(b). The focus would be on whether their statements have a seditious
tendency, irrespective of their intention. + Section 4(1)(c) + case law

Conclusion
In conclusion, Saza and Lana can be charged under the Sedition Act 1948 due to their act of
criticism on social media regarding the state authorities, government, and the Sultan of Johore
in which can be considered as seditious.
Week 13 tutorial

The question above discusses whether the punishment of apostasy that is introduced by
the Syariah Criminal Offences (Selangor) Enactment 1995 violates the freedom of religion that
is embodied in Article 11(1) of the Federal Constitution?

Add freedom of religion based on International Law

The general rule of Article 11(1) of the Federal Constitution is that every person has the
right to profess and practice his religion, and subject to clause (4), to propagate it. This article
touches on three fundamental liberties given to citizens and non-citizens which is the right to
profess, the right to practice, and the right to propagate their religion. The word ‘profess’ refers
to the belief as well as doctrine that every person has the freedom to affirm themself to a set
religion. The word ‘practice’ refers to the exhibition of these beliefs, through acts, practices and
rituals. The word ‘propagate’ refers to the attempt of spreading and transmission of one’s belief
onto others, in order to convert them to one’s faith.

However, it is also taken into account that the freedom of religion is not absolute in
Malaysia. The freedom of religion is subject to the restrictions under Article 11(4) of the Federal
Constitution. The article explains regarding the right to propagate one’s religion is subject to
limitation. Therefore, the missionary activities amongst muslims may be regulated. In addition to
the general framework of Article 11(4), it is crucial to note that State Legislature have exercised
their authority under this provision. As of 2008, nine State Legislatures have enacted laws that
restrict the propagation of any religious doctrine among Muslims. The wording of Article 11(4) is
notably broad, encompassing all missionary activities directed at Muslims, particularly against
well-funded international missionary activities. Therefore, it suggests an intention to regulate
and control various forms of missionary work, underscoring the extent of permissible restrictions
under the constitutional framework.

Add article 11(5)

Besides, also under Article 11(4), in Malay, the words ‘Islam’ and ‘Malay’ are often used
interchangeably. Conversion out of Islam would automatically mean deserting the Malay
community due to the legal fact that the definition of ‘Malay’ in Article 160(2) contains four
elements whereby professing Islam is the first and perhaps the most important element.
Besides, the enforcement of State Laws to ban propagation to Muslims poses constitutional
difficulty. Shariah courts do not have any jurisdiction over non-muslim therefore it has to be tried
by a Magistrate’s Court.

The case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan can be referred to,
where in this case Lina Joy sought to officially convert from Islam to Christianity and change her
religious status on her identity card. Her case went to court after Malaysian authorities refused
to grant her request. The courts ruled against her, stating that the country's Constitution did not
guarantee the right to change one's religion.

The case of Lina Joy brought attention to the conflict between an individual's right to
freedom of religion and Malaysia's legal and religious systems. The court's decision was based
on the interpretation of the Constitution, which doesn't explicitly guarantee the right to change
one's religion. Lina Joy's case also raised questions about the application of international
standards on freedom of religion within the country's legal system. While international human
rights instruments emphasize the right to change one's religion as part of the freedom of religion
or belief, the Malaysian court's decision highlighted a conflict between these international norms
and domestic laws. The ruling reflected a more restrictive interpretation of religious freedoms
within the Malaysian legal context, illustrating the challenge of reconciling national laws with
international human rights standards.

In the case of Daud bin Mamat, also in Malaysia, involved a similar issue to Lina Joy's.
He sought legal recognition of his conversion from Islam to Christianity, requesting to change his
religious status on his identity card. However, the court ruled against him, following a similar
rationale as in Lina Joy's case, stating that the country's Constitution did not guarantee the right
to change one's religion officially on legal documents.

Daud bin Mamat's case reflected limitations on the freedom of religion in Malaysia. The
court's decision not to recognize his official change of religion highlighted restrictions within the
country's legal framework. In Malaysia, religious matters, particularly conversions from Islam,
face legal constraints, which can impede an individual's exercise of their freedom of religion,
specifically in cases where the law doesn't explicitly guarantee the right to change one's religion
on official documents.

Whereas in the case of Syarifah Nooraffyzza binti Wan Hosen v Director of Jabatan
Agama Islam Sarawak & Ors, Syarifah Nooraffyzza Wan Hosen converted to Christianity and
applied for a name change in her identity card and renounced from islam.

In Malaysia, apostasy is not allowed primarily due to the legal and social framework that
upholds Islam as the official religion. The country's legal system, based on Sharia law for
Muslims, does not explicitly provide for apostasy and often imposes restrictions on religious
conversions from Islam to other faiths.The restriction on apostasy in Malaysia can be viewed as
a limitation on an individual's freedom of religion, which is protected under the Federal
Constitution. The Constitution does guarantee freedom of religion, but it also grants power to
states to regulate Islamic law for Muslims. Consequently, legal interpretations and practices in
Malaysia often restrict the freedom to leave Islam, considering it an offense under Sharia law.

Therefore, despite the right to profess, practice and propagate religion is given in Article
11(1), it is not a violation of fundamental liberties to impose a punishment towards those who
commit apostasy. Malay muslims who choose to convert to another religion are restricted by
Article 11(4) because it creates conflict towards the definition of Malay as defined in Article
160(2). If the conversion out of Islam is allowed, it would promote and cause constitutional
issues, therefore it is rightfully restricted. The punishment of apostasy is also supported by
several cases, including Lina Joy and Mamat bin Daud as the court does not acknowledge the
conversion out of Islam.

In conclusion, the punishment of apostasy that is introduced by the Syariah Criminal

Offences (Selangor) Enactment 1995 does not violate the freedom of religion that is prescribed
in Article 11(1) of the Federal Constitution because of the limitations provided in article 11(4) of
the Federal Constitution in which it states that the propagation of any religious doctrine among
Muslims is restricted.

Add case of:

1. Lina Joy v Majlis Agama Islam Wilayah Persekutuan dan lain lain [2007] 4 MLJ 585
2. Daud Bin Mamat & Ors v Majlis Agama Islam & Anor [2001] 2 MLJ 390
3. Syarifah Nooraffyzza binti Wan Hosen v Director of Jabatan Agama Islam
Sarawak & Ors [2018] 3 CLJ 620