SUBMISSION
SUBMISSION
CENTRE FOR RESEARCH
IN LAW AND DEVELOPMENT IN ASIA
2021
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Marini Arumugam, Tamara Joan Duraisingam & Lai Mun Onn
Abstract
Secondary education more so than primary education, plays a crucial role in the redistribution of income, growth and reducing poverty. So crucial is the role of secondary education that countries that have invested in secondary education show faster economic growth. Despite the significance of secondary education, education is only compulsory in Malaysia from the age of 6 until 11 with no compulsory secondary education required. Research shows that only 95.25% of children enrol in lower secondary school education. This percentage drops significantly to 86.46% enrolled in upper secondary school. While there have been calls to review the Education Act to make secondary education compulsory in Malaysia, there has been no shift to make that change. This study aims to look at the right to secondary education within the legal sphere, reviewing not only domestic laws but also against Malaysia’s international obligation with the potential of being recognized as a stand-alone right within the domestic and international system of law. It finds that through liberal reading of the Federal Constitution, the right to secondary education could be recognized. This recognition is in line with Malaysia’s international obligation. However, despite the possible recognition of the right, this paper finds that there is no provision in any Malaysian laws to provide for the right to secondary education.
Keywords: right to secondary education, human rights.
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Mark Goh Wah Seng
Abstract
Whilst calls to uphold and protect our constitutional rights have so often been raised, the legal position is far from the truth. An examination of the constitution reveals that Part II of the Federal Constitution declares our fundamental rights without restricting its enforcement between individuals per se. Despite the absence of such limitations, the Malaysian courts have consistently rejected the horizontal enforcement of constitutional rights, thereby rendering the individual’s constitutional rights largely illusory. Given the constraint, this article aims to explain why our constitutional rights should be enforced horizontally and suggest a proper method which the courts can adopt to enforce these rights horizontally.
Keywords: Federal Constitution; constitutional rights; public and private divide; horizontal enforcement; individuals; illusion
Tamara Joan Duraisingam & Nakeeran Kumar s/o Kanthavel
Abstract
The rule of law according to Lon Fuller focusses on the ‘morality of the law’. Thus, a government must seek to provide an environment in which each citizen may realize to his or her maximum potential the rational plan of life to which he or she aspires. Society must be free and directed to the good of each of its members. Any government which fails, in a material degree, to meet these requirements may fail to deserve the label of a ‘legal system’. The term rule of law, however, has been a term used by politicians to secure political mileage during election campaign periods and continues to be used upon formation of a new government. In Tun Mahathir’s inaugural speech to his ‘rakyat’ on 10 May 2018, the term ‘rule of law’ was used at least 3 times. Within the domestic sphere, the Federal Constitution of Malaysia provides through Article 8 that all persons are equal before the law and entitled to the equal protection of the law. The terminology used is ‘all persons’ and not ‘all citizens’ which seems to uphold the Diceyan postulate of equality before the law. Regardless of its transcendent nature and noble assurance of a government of laws and not men, there would be gaps in the usage of the term ‘rule of law’ as it does not reach all levels of community. This paper critically appraises the concept of rule of law in Malaysia as it was and how it seems to be evolving under the current constitutional post-pandemic landscape.
Keywords: rule of law, equality.
Chong Wei Li
Abstract
COVID-19 had far-reaching economic and social consequences which stunned the rate of globalisation. The emergence of COVID-19 within China and the Chinese government’s failure to promptly and transparently provide needed information to the international community raises the question whether the Chinese government and/or its officials could be held civilly or criminally liable under international law or domestic law. In the United States, several individuals, small businesses and States have filed a total of at least 14 different suits against China (and affiliated entities and officials) based on its perceived culpability in causing the pandemic. This article explores which court has the competence and jurisdiction to deal with the international responsibility of the Chinese government. This article discusses four possible scenarios under both national courts and international forums for a lawsuit against China. Specifically, the author also analyses the Malaysian position on the possible legal actions against China.
Keywords: International law, sovereign immunity, COVID-19, liability, Foreign Sovereign Immunity Act, arbitration, China, Malaysian perspective.
Sara Sofea Lukman Sheriff & Grace Alice Ninan
Abstract
In drafting the constitution, the Reid Report stated that the Federal Constitution defines the rights of both States and the Federation, and that there should be power to annul these rights. Article 4(1) of the Federal Constitution states that the highest law of the Federation is the Constitution. However, Parliament has the power to amend the Constitution, subject to certain limits. This article attempts to look at the limitations to constitutional amendments, the development of the basic structure doctrine in Malaysia and the applicability of the doctrine in the Malaysian context.
Keywords: Constitutional Law, Federal Constitution, Basic Structure Doctrine, Malaysian Constitutional Law.