Compare and Contrast Federal Constitution and Constitution of China

TABLE OF CONTENTS

Introduction 

Constitution sets out the framework and the fundamental principles according to which a state is governed. The Constitution of Malaysia, also known as the Federal Constitution, contains 183 Articles which are divided into 15 Parts and 13 Schedules. The Federal Constitution is considered to be the supreme law in Malaysia. All laws have to be made in accordance with the constitution. Besides, any law which is inconsistent with the Constitution may be declared void.

The Constitution of the People’s Republic of China is the supreme law within the People’s Republic of China. The current version was adopted at the Fifth Session of the Fifth National People’s Congress and promulgated for implementation on December 4, 1982. There are total five sections in the Constitution of the People’s Republic of China.

In this assignment, Part II of the Constitution of Malaysia, Fundamental Liberties and

Chapter II of the Constitution of the People’s Republic of China, the Fundamental Rights and Duties of Citizens will be compared and contrasted, where similarities and differences between the two parts will be elaborated.  

Article 5: Liberty of the person 

Article 5(1) in Federal constitution is that, no person shall be deprived of his life or personal liberty saves in accordance with law [1]. ‘No person’ includes the person himself and so suicide is not allowed. Moreover, this law is applied to every person, not just citizen. For example, even the deformed foetus cannot be killed unless it is a threat to the mother’s life. From here the narrowness of this article can be seen to some extent. In comparison with China, the constitution states the liberty of citizens of the People’s Republic of China is inviolable so both homicide illegally and suicide are also not allowed. However, in the same case stated above, the choice can be more flexible because the target of this article is its citizens.

Article 5(2) of Federal Constitution allows the unlawfully detained person the right to apply for protection through habeas corpus. But the greatest weakness in the law relating to habeas corpus is that habeas corpus cannot be used to challenge the reasonableness, rationality or good faith of a detention order [2]. While in China, according to the Article 37 of China constitution, unlawfully detention or other deeds that unlawfully deprive or limit a citizen’s liberty is forbidden. And in other laws, the detained person may apply for a review or lawsuit to the court.

Article 5(3) gives an arrested person the right to be informed of the grounds of his arrest as soon as maybe and makes the arrested person have access to his own lawyer and be defended by the lawyer. However, it does not state specifically how long is ‘as soon as maybe’ and eventually it depends on the actual proceed of the case. In addition, the beginning time of the arrestees’ consultation and defend is not also specifically described. There must be a balance to strike between the entitlement of an arrestee and the police’s duty to collect evidence. The content in this aspect are not included in constitution of China but in its General Principles of the Civil Law and Criminal procedure law.

Article 6: Slavery and forced labour prohibited 

In Article 6 of Federal Constitution, slavery and forced labour issue has been discussed. Based on the article, no person can be made as slave and be forced to work. Besides, all forms of forced labour are outlawed, except with the obligation participating National Service and work or service are not considered as a forced labour from a person that convicted a crime. Meanwhile according to the Constitution of China, article 32 states that armed forces under People’s Republic of China are obliged to strengthen national defence, resist aggression, defend the motherland, safeguard the people’s peaceful labour, and participate in national reconstruction. There are similarities between Federal Constitution and Constitution of China, where citizen are considered as forced labour under the service for their country. Based on my view, citizen of Malaysia and China should have their rights to either accept or reject their service to their country based on their will.

Citizens of the People’s Republic of China have the right as well as the duty to work, which mean there are no slavery allowed at the same time. Citizens of the People’s Republic of China are given conditions for employments, occupational safety and health enhancement and improved working conditions by the States. Work is a matter of honour for every citizen who is able to work, so the State encourages citizens to take part in voluntary labour by providing credential training before they are employed.  

Article 7: Protection against retrospective criminal laws and repeated trials 

Basically the clauses stated in Article 7 of the Federal Constitution are all the law can only take effect by the time it was made and future, it cannot punish the past offences. Offences cannot be retrial but can only appeal which are well-stated in Clause (2) of Article 7 of Federal

Constitutions. The content in this aspect are not included in constitution of China but in its Criminal Law Article 12 and Chapter III: Procedure of Second Instance Clause (216) [3] 

Article 7 confers two rights – protection against retrospective criminal laws and protection against repeated trials. But I found that the rule against double jeopardy has been subjected to so many exceptions such as courts have held that sentences imposed by criminal courts do not bar additional sentences imposed by disciplinary tribunals. Second, acquittal or conviction in a criminal trial does not bar an additional preventive detention order. Third, acquittal on one charge does not bar a trial for another charge for a separate offence on the same set of facts. These left wondering about the real worth of this immunity. [4]