November 2019

UM Law Constitution Bulletin

November 2019

Rays and Rains at Home

Federal Court has ruled that former prime minister Datuk Seri Najib Razak was a public officer and could be sued for alleged misfeasance in public office.

Malaysian needs to change the electoral paradigm of Malaysia.

Federal Court throws out suit questioning constitutionality of vernacular schools.

School must promote constitutional literacy. (by Emeritus Professor Datuk Dr Shad Saleem Faruqi)

Tan Sri Goh Tian Chuan says that government should appoint experts and set a committee to clarify constitutional provisions.

A constitutional court for Malaysia: A misconceived legal transplant? (by Andrew Harding)

Law & Behold: Podcast
Law & Behold #15: Is SOSMA Constitutional?

Emeritus Professor Datuk Dr Shad Saleem Faruqi, Professor of Constitutional Law, University of Malaya discuss whether the Security Offences (Special Measures) Act 2012, or SOSMA as it's better known, undermines the protections and fundamental liberties contained in the Federal Constitution.

Law & Behold #14: Constitutional Basis for National Unity.

Emeritus Professor Datuk Dr Shad Saleem Faruqi, Professor of Constitutional Law, University of Malaya discuss the constitutional basis for national unity.

Winds of Change

Constitutional Amendments

Azis: Government bound by law on matters of citizenship.

Attorney-General Tan Sri Tommy Thomas: Walkabouts and door-to-door campaigning do not need police permits .

Legislative Reforms

Malaysian Bar calls for SOSMA to be repealed in its entirety.

Penang to draft enactment to prevent spread of other religions to Muslims.

T he 'deep state' in academia.

Up to states amend marriage age.

Editor's Comment: 'On the issue of child marriage, it is understandable that human rights groups are disappointed with the views of DPM Wan Azizah and YB Mujahid that as Muslim or customary marriage is a matter within state jurisdiction, therefore the Federal Government can only try to persuade but cannot compel the states to raise the age of marriage to 18. However, the Bulletin takes the liberty to advise that despite the federal-state division of powers the federal government is not as helpless as it may seem. (1) It can request the Conference of Rulers to take a stand on this matter. (2) The Conference could in turn advice the Malay Rulers in each state to instruct their State Assemblies and shariah establishments to reduce the age. (3) Though Muslim and customary marriages are in the state list, criminal law is a federal matter. It is therefore possible to create a federal crime of child marriage under the penal code or some other child protection law. Marriage is one thing; crimes within marriage are another. (4) Take domestic violence or anal sex in a Muslim marriage. It is arguable that a crime is within federal powers to prosecute if it is in the Penal Code. (5) We take note that all religious practice is under art 11(5) subject to “morality”. Child marriage even if permitted by religion or custom can be criminalised under the power of Art 11(5).'

Tides and Turbulences Abroad

Zimbabwe:
Chamisa vs Mnangagwa: Full Constitutional Court judgment released.

United States:
Donald Trump has violated US Constitution and should be impeached by Congress.

Hong Kong:
From an extradition bill to a political crisis: A guide to the Hong Kong protests.

Public Comments

First Perspective -

Datuk Dr Ruhanie Ahmad: It makes sense to keep preventive law

It is unfortunate that the Southeast Asian region, far removed from the civil war in Syria and the turmoil in Iraq, has not been spared.

Second Perspective -

Abdul Fareed Abdul Gafoor: Recognise Right to a Fair Trial and the Rule of Law

It is the position of the Malaysian Bar that SOSMA be repealed in its entirety.

Third Perspective -

Emeritus Professor Datuk Dr Shad Saleem Faruqi: SOSMA. It's Constitutionality
A provision of SOSMA cannot violate any provisions of the Constitution other than Articles 5, 9, 10 and 13.

Breaking At Dawn

David Landau & Hanna Lerner, Comparative Constitution Making (Edward Elgar, 2019).

Recent years have witnessed an explosion of new research on constitution making. Comparative Constitution Making provides an up-to-date overview of this rapidly expanding field.

Bringing together leading scholars from political science and comparative public law, this handbook presents a broad historical and geographical perspective, exploring debates on constitutionalism across the world. Contributions provide original, innovative research on central issues related to the process and context of constitution making and identify distinctive elements or models of regional constitutionalism.

Graham Butler, Constitution Law of the EU's Common Foreign and Security Policy (Hart Publishing, 2019).

The Common Foreign and Security Policy (CFSP) of the European Union is a highly exceptional component of the EU legal order. This constitutionalised foreign policy regime, with legal, diplomatic, and political DNA woven throughout its fabric, is a distinct sub-system of law on the outermost sphere of European supranationalism. When contrasted against other Union policies, it is immediately clear that EU foreign policy has a special decision-making mechanism, making it highly exceptional.

On The Horizon

UM CONSTI TEAM X TEDxUM

“How democratic is the Malaysian democracy?” organised by UM CONSTI TEAM with educational partner, TEDxUM, will be held at the Tun Suffian Auditorium, Faculty of Law, University of Malaya on 12th December 2019 (5 pm - 7 pm).

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