ISA存在的宪法问题

davidchak

我今天有幸遇到马来西亚宪法专家DatoAziz，当我问他有关ISA的合法性的时候，他跟我说就是因为这个第１４９条文才会导致到ISA的存在。因为１４９条纹提供了条件及接口让政府能够在违反第５，９，１０，１３条文字下成立新的法律。

第五条大致上最重要的是这两个条文：
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest
and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released he shall without unreasonable delay, and in any
case within twenty-four hours (excluding the time of any necessary journey) be produced before
a magistrate and shall not be further detained in custody without the magistrate's authority:
也就是说不可以非法（没有理由情形下拘留一个人）以及每个拘留者必须在法庭公平审讯下判决。．

第９条纹是：
(2) Subject to Clause (3) and to any law relating to the security of the Federation or any part
thereof, public order, public health, or the punishment of offenders, every citizen has the right to
move freely throughout the Federation and to reside in any part thereof.
这个就是说在ISA下，限制州的居留权其实是违法的。

第１０条文则是：
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.
马来西亚人在宪法保护下拥有合法聚集的权利，言论自由的权利等的基本人权。

最后第１３条纹是：
No law shall provide for the compulsory acquisition or use of property without adequate
compensation.
政府不能通过法律来强行没收人民的产业以及拥有品。


以下是１４９条文的全部：

(1) If an act of parliament recites that action has been taken or threatened by any substantial body
of persons, whether inside or outside the Federation -
(a) to cause, or to cause a substantial number of citizens to fear, organised violence
against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the
Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of
the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law
established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to
the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part
thereof,any provision of that law designed to stop or prevent that action is valid notwithstanding that it is
inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article
be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an
Act or any amendment to such a Bill.
(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed,
cease to have effect if resolutions are passed by both Houses of Parliament annulling such law,
but without prejudice to anything previously done by virtue thereof or to the power of Parliament
to make a new law under this Article.

我比较不明白的是这一段bold了的字。　有哪位律师可以帮帮吗？

王律師

原帖由 davidchak 于 10-8-2009 01:07 AM 发表
我今天有幸遇到马来西亚宪法专家DatoAziz，

干嘛不问 宪法专家 呢？



(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed,
cease to have effect if resolutions are passed by both Houses of Parliament annulling such law,
but without prejudice to anything previously done by virtue thereof or to the power of Parliament
to make a new law under this Article.


这样看


1） A law containing such a recital as is mentioned in Clause (1)  shall, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law,

簡單来说， ISA 这条法令 （其实 是全部法令） 只有 Parliment  才可以廢除，改


2）but without prejudice to anything previously done by virtue thereof or to the power of Parliament
to make a new law under this Article.

就算 停止生效 了， 将不影響 之前做过的 或 将不影響 国会的權力 去加 一項新的法律

davidchak

赶不及问啊，我手上又没有宪法供我参考。。



(2) A law containing such a recital as is mentioned in Clause (1) shall, <b>if not sooner repealed, </b>cease to have effect if resolutions are passed by both Houses of Parliament annulling such law,but without prejudice to anything previously done by virtue thereof or to the power of Parliament
to make a new law under this Article.

感觉上这个是说，“假如没有被取消“的意思。。。这个clause的意思是什么啊？

2750廿三号

是Dato Aziz，还是Raja Aziz?

davidchak

不，不是这个。是个马来人来的，在回教大学教法律的