Malaysia’s constitutional framework is anchored by a set of fundamental liberties enshrined in Part II of the Federal Constitution. These include:
These provisions form the foundation of our legal order, shaping the contours of citizenship, state power, and democratic participation.
Yet constitutional life does not stand still. Through judicial interpretation, legislative innovation, and civic engagement, a new generation of rights is emerging that responds to the complexities of modern Malaysian society and the demands of human dignity. These include the right to education, the right to privacy and personal data, the right to livelihood, the right to information, and the right to academic freedom. Though not always explicitly stated, they are increasingly recognised in jurisprudence, policy, and public discourse.
Right to Education as Part of the Right to Life
While Article 12 guarantees non-discrimination in education, the broader right to education remained unclear until the decision of the Sarawak High Court in Rusiah Sabdarin & Ors v. Mohd Jamainal Jamran & Ors. In that case, Leonard David Sim J held that a right to education was part of the right to life guaranteed by Article 5 of the Federal Constitution. A rights-based approach would compel reforms in access, curriculum, and equity—especially for marginalised communities.
Right to Privacy and Personal Data: A Constitutional Turn
In Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, the Federal Court interpreted Article 5(1)’s guarantee of personal liberty to include the right to privacy. This landmark decision laid the groundwork for constitutional protection of personal autonomy.
Complementing this, the Personal Data Protection Act 2010 (PDPA) protects individuals’ personal information in commercial contexts. Lee Ewe Poh v Dr Lim Teik Man [2011] 4 CLJ 397 further affirmed privacy as a tortious right, particularly in medical and informational contexts.
Right to Livelihood: Interpreting Life with Breadth
The right to livelihood has been judicially inferred from Article 5(1). In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, the Court held that “life” includes the right to live with dignity, encompassing livelihood. This expansive interpretation was reaffirmed in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481 and Rama Chandran v Industrial Court [1997] 1 MLJ 145, signalling a shift toward socio-economic rights.
Academic Freedom Under the Federal Constitution
The Malaysian government and university governors adopt a paternalistic stance towards academia and academic freedom. Tenure and promotion prospects are used to limit the traditional freedoms linked to universities and their incumbents.
Yet, academic freedom is a cornerstone of higher education and intellectual development. It safeguards the right of scholars to research, teach, and express ideas without undue restriction, ensuring the integrity and independence of educational institutions. Several international documents have emphasised the importance of academic freedom in the development of individuals and nations.
There are, however, no laws in Malaysia that expressly recognise academic freedom, although our courts have alluded to such a right in several cases. There are also provisions in the scheduled constitution in the Universities and University Colleges Act 1971 that recognise the collegial administration of universities established under the Act. Collegial governance is an important component of academic freedom.
Recent judicial decisions that have established a constitutional right to education and the right to a livelihood may also go a long way in establishing academic freedom if the question comes before our courts. Provisions in the Malaysian Qualification Agency’s guidelines on programme approval (COPPA) would also serve to support such a right, as would certain provisions in the Personal Data Protection Act 2010.
At the same time, the Statutory Bodies (Discipline and Surcharge) Act 2000, which severely undermines academic freedom, may not survive a constitutional challenge in our courts on the grounds that its disciplinary provisions are disproportionate in their application to academic staff.
Right to Information: From Secrecy to Sunlight
Malaysia lacks a federal Freedom of Information Act, but state-level enactments in Selangor (2011) and Penang (2010) have pioneered access to government-held information. In Harris Mohd Salleh v Chief Secretary, Government of Malaysia & Ors [2023] 4 CLJ 744, the High Court affirmed that the right to information is a corollary to Article 10’s freedom of speech. This decision may catalyse broader legislative reform.
Rights Over Personal Data: PDPA and Beyond
The PDPA grants individuals control over their data in commercial transactions, establishing principles of consent, purpose limitation, and data security. However, its scope excludes government agencies and lacks constitutional grounding. As digital profiling and AI systems proliferate, calls are growing for a right to informational self-determination—one that protects citizens from both corporate and state overreach.
Toward a Dignity-Based Constitution
These emerging rights do not replace the original guarantees of the Federal Constitution—they extend them. They reflect a jurisprudence of dignity, autonomy, and participation, interpreting liberty not merely as freedom from interference, but as the freedom to flourish.
Malaysia’s constitutional imagination must evolve with its people. Courts, lawmakers, educators, and civil society must work in concert to codify, protect, and democratise these rights—not just in law, but in lived experience. The Constitution must be read not as a static document, but as a living covenant—one that breathes with the aspirations of its citizens.
