Fundamental Liberties: Articles 5 to 13 of the Federal Constitution, and the Limits Built Into Each One

Part II of the Federal Constitution guarantees a Malaysian’s most basic rights — and nearly every Article in it also spells out, in the same breath, the limits the Constitution itself permits. That pairing of guarantee and permitted restriction is not an accident of drafting. It is how Part II is built.

Part II runs from Article 5 to Article 13. Each Article below is described as it reads in the current reprint of the Constitution, together with the restriction clauses the Constitution itself contains.

At a glance

Part	Part II — Fundamental Liberties
Articles	5 to 13
Who it binds	Parliament, the State Legislatures, the executive, and public authorities
Who enforces it	The courts, through judicial review and habeas corpus applications under Article 5(2)
Two constitutional override valves	Article 149 (anti-subversion legislation) and Article 150 (emergency powers)

The nine liberties, side by side

Article	Right	Holder	Restriction named in the text
5	Life and personal liberty	Every person	Only “in accordance with law” (5(1)); Clauses (3)–(4) safeguards do not apply to an enemy alien (5(5))
6	Prohibition of slavery and forced labour	Every person	Parliament may legislate compulsory service for national purposes (6(2))
7	No retrospective criminal punishment; no double jeopardy	Every person	None stated — this Article is not subject to a Parliament-may-restrict clause
8	Equality before the law	All persons (8(1)); citizens (8(2))	Express exceptions listed in 8(5), e.g. personal law, aboriginal welfare, state-residence qualifications
9	No banishment; freedom of movement	Citizens	Movement/residence subject to law on security, public order, public health or punishment of offenders (9(2)); special restrictions on movement to/from a state in a special position (9(3))
10	Speech, assembly, association	Citizens	Parliament may restrict on security, foreign relations, public order, morality, parliamentary privilege, contempt of court, defamation, incitement (10(2)–(4))
11	Freedom of religion	Every person	The right to propagate is expressly made subject to Clause (4) (11(1)); state law — federal law for the Federal Territories — may control propagation among persons professing Islam (11(4)); no act contrary to general law on public order, public health or morality (11(5))
12	Rights in respect of education	Every citizen (non-discrimination); every religious group (institutions)	Islamic religious instruction/institutions expressly carved out as lawful (12(2))
13	Right to property	Every person	Deprivation only “in accordance with law” (13(1)); compulsory acquisition requires adequate compensation (13(2))

Article by article

Article 5 — Liberty of the person. No person may be deprived of life or personal liberty except in accordance with law. If someone is unlawfully detained, a High Court judge who is satisfied of that must order their release — this is the constitutional basis for a habeas corpus application. An arrested person must be told the grounds of arrest and allowed a lawyer of their choice, and must be produced before a magistrate without unreasonable delay and, in any case, within 24 hours (excluding travel time). That 24-hour figure becomes 14 days where the person is not a citizen and is arrested under immigration law, and a reference to “magistrate” extends to a Syariah court judge where the offence is one triable by a Syariah court. These safeguards in Clauses (3) and (4) do not extend to an enemy alien.

Article 6 — Slavery and forced labour prohibited. No person may be held in slavery, and forced labour is prohibited outright — except that Parliament may by law provide for compulsory service for national purposes. Work done as a result of a court conviction is not “forced labour” for this purpose, provided it is carried out under the supervision of a public authority. A further clause covers employees transferred when a public authority’s functions move to another public authority: that transfer is not forced labour either.

Article 7 — Protection against retrospective criminal law and repeated trials. No one may be punished for an act that was not an offence when it was done, nor receive a heavier penalty than the law prescribed at the time. Someone already acquitted or convicted of an offence cannot be tried again for it, unless the earlier verdict was quashed and a retrial ordered by a superior court. Unlike most of the other Articles in Part II, Article 7 contains no clause letting Parliament restrict it.

Article 8 — Equality. All persons are equal before the law and entitled to its equal protection. Citizens may not be discriminated against, in law or in public employment, on the ground only of religion, race, descent, place of birth or gender. There is to be no discrimination in favour of a Ruler’s subject, and no public authority may discriminate against a person for living or doing business outside its own jurisdiction. Clause (5) then lists what the Article does not prohibit: regulation of personal law; restricting religious-body employment to adherents of that religion; provisions for the protection and advancement of the aboriginal peoples of the Malay Peninsula; state-residence qualifications for state-level elections or appointments; pre-Merdeka state constitutional provisions; and restricting enlistment in the Malay Regiment to Malays.

Article 9 — Prohibition of banishment and freedom of movement. No citizen may be banished or excluded from the Federation. Every citizen has the right to move freely throughout the Federation and reside anywhere in it, but that right is subject to any law on the security of the Federation, public order, public health, or the punishment of offenders. A further clause lets Parliament impose movement and residence restrictions as between the Federation and any state that holds a special position under the Constitution as compared with the states of Malaya.

Article 10 — Freedom of speech, assembly and association. Every citizen has the right to freedom of speech and expression; all citizens have the right to assemble peaceably and without arms, and to form associations. All three rights are expressly made subject to Clauses (2) to (4). Parliament may restrict speech in the interest of the security of the Federation, friendly relations with other countries, public order or morality, and to protect parliamentary privilege or guard against contempt of court, defamation or incitement to an offence. Assembly may be restricted in the interest of security or public order. Association may be restricted in the interest of security, public order or morality, and separately by any law relating to labour or education. A further clause lets Parliament, when legislating on security or public order grounds, bar the questioning of matters protected under Part III (citizenship), or Article 152, 153 or 181, other than in relation to how those provisions are implemented.

Article 11 — Freedom of religion. Every person has the right to profess and practise their religion and, subject to Clause (4), to propagate it. No one may be compelled to pay a tax whose proceeds are earmarked for a religion other than their own. Every religious group has the right to manage its own religious affairs, establish and maintain religious or charitable institutions, and acquire and administer property in accordance with law. State law — and, for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law — may control or restrict the propagation of any religious doctrine among persons professing the religion of Islam. The Article does not authorise anything contrary to general law on public order, public health or morality.

Article 12 — Rights in respect of education. Without limiting Article 8, there is to be no discrimination against a citizen, on the ground only of religion, race, descent or place of birth, in the administration of a publicly-maintained educational institution or in public financial aid for education. Every religious group may establish and maintain institutions for educating children in its own religion, without discrimination on the ground only of religion — but it remains lawful for the Federation or a state to establish, maintain or fund Islamic institutions or instruction. No person may be required to receive religious instruction, or take part in worship, of a religion other than their own; for a person under 18, that choice is made by their parent or guardian.

Article 13 — Rights to property. No person may be deprived of property except in accordance with law, and no law may provide for the compulsory acquisition or use of property without adequate compensation.

The two constitutional override valves

Two further Articles, outside Part II, let Parliament go beyond the restriction clauses listed above.

Article 149 provides that where an Act of Parliament recites that action has been taken or threatened — by a substantial body of persons, inside or outside the Federation — to cause organised violence, excite disaffection against the Yang di-Pertuan Agong or a Government, promote racial or class ill-will likely to cause violence, procure unlawful alteration of anything established by law, or prejudice public order, security, or an essential supply or service, then any provision of that Act designed to stop or prevent the action is valid even if it is inconsistent with Article 5, 9, 10 or 13.

Article 150 allows the Yang di-Pertuan Agong to issue a Proclamation of Emergency where satisfied that a grave emergency threatens the security, economic life, or public order of the Federation or any part of it. While such a Proclamation is in force, Parliament may make laws on any matter, notwithstanding anything in the Constitution, if the law is required by reason of the emergency — and, subject to the further conditions set out in Article 150 itself, such laws and ordinances are not invalid merely for being inconsistent with the Constitution.

Common mistakes

• Treating Part II as absolute. Nearly every Article in Part II carries its own restriction clause in its own text, and Articles 149 and 150 can qualify several of them further. “Fundamental” describes their place in the Constitution’s structure, not that they are unlimited.
• Assuming every liberty belongs to every person. Articles 5, 6, 7, 8(1), 11 and 13 use the word “person” and are not limited to citizens. Articles 9, 10 and parts of 8 and 12 are expressed as rights of “citizens” specifically.
• Reading Article 8 in isolation from Clause (5). Article 8’s equality guarantee is immediately qualified by the express exceptions listed in the same Article — it does not stand alone.
• Overlooking that Article 10’s three rights have different restriction grounds. Speech may be restricted on more grounds (including defamation and contempt of court) than assembly, which may only be restricted for security or public order.

Who enforces this

Part II does not enforce itself. Article 4 makes the Constitution the supreme law of the Federation, so a law inconsistent with Part II is void to the extent of the inconsistency — but that voidness is established through the courts, via constitutional challenge or, for unlawful detention, a habeas corpus application under Article 5(2) itself.

What’s next

• Federal Constitution of Malaysia — the full structure Part II sits within, including how the Constitution is amended.
• Malaysia’s court hierarchy — which court hears a constitutional challenge or a habeas corpus application.
• Parliament of Malaysia — the body that exercises the restriction powers Articles 9, 10 and 149 confer.

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This article is classified as sensitive (3R+1: constitutional matters) under NegaraKu.md’s editorial policy. It is written to be strictly descriptive — the text of each Article and the restrictions the Constitution itself names — and is held in review pending human sign-off before publication.