LAW NOTES : Constitutional Law - Summary Notes for Fundamental Liberties : Article 5-13 of Federal Constitution, Malaysia
Sharing the notes [2014]
"There is always a room for the readers to excite themselves with
'CORRECTION' & 'CREATIVITY'".
ARTICLE 5
v Definition of “Life”
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan
v
A(Appelant) was charged with
CBT and found guilty by High Court
v
Johor Edu Dep wrote to Edu
Service Commission (ESC), recommending the A to be reduced in rank and salary
v
However, ESC decided to
dismissed the A and then A appealed
v
Principle :
o
-Word ‘Life’ in Art 5(1) not
only refer to mere existence of someone-extends to all integral part of life
itself & matters which form the quality of life (eg: right to live in
healthy and clean environment)
o
-For the purpose of this case ,
encompasses the right to continue in public servant subject to removal of good
cause-by resort to a fair procedure
v
Definition of “Personal
Liberty” (PL)
Sugumar Balakrishnan v Pengarah
Imigresen Negeri Sabah
v
COA had widen the meaning of PL
in Art 5-on the view that the liberty of an aggrieved person to go to court and
seek relief, including judicial review(JR) of admin action
Govt of Malaysia v Loh Wai Kong
v
Issue: Whether PL covers
Freedom Of Movement?
v
Art 5(1) does not confer on a
citizen fundamental right (FR) to travel overseas.
v
Does not confer the right to a
passport
v
It is on the discretion of the
gov whether to issue or not
Lee Kwan Woh v PP
v
An appeal made by LKW on the
death punishment on him
v
Appealed on the ground that he
was deprived by High Court(HC) of his right during trial to make “submission in
his defence”.
v
Federal Court(FCt): the act of
the HC by disallowing LKW to make submission in defence has violated Art 5(1)
v
The FCt came to this decision
by applying a broader approach to meaning life & PL
Karam Singh v Menteri Hal Ehwal Dalam Negeri
v A detainee of ISA
challenge the validity of detention order under ISA on the ground that
executive acted mala fide w/out giving proper consideration to the matters and
all allegations are baseless and right to present was deprived.
v FCt Held: the
detention was lawful because Art 5(1) of FC authorized that probation of
personal liberty in accordance with law
v Parliament can
make law restricting PL
v “Save in
Accordance With Law”
v Interpretations
to the word ‘Law’
v Means any statute
passed by Parliament(PMent), so that no statute will be contrary to Art 5(1)
even it deprive the life and PL of a person
v Includes within
it fundamental rules of Natural Justice (NJ). Thus a statute can be struck off
under Art 5(1) of FC if it goes against these rules
Tan Tek Seng v SPP
v Art 5(1) must be
read together with Art 8(1)
v The pre-requisite
of justice in both article include not only procedural fairness but the
punishment should be imposed in each case based on its own facts
v How it comes to
this conclusion?
v Referred to the
case of Maneka Gandhi v Union of India where it discussed on the punishment
between two Articles in India
v Art 14(Art 8 of
FC)-on principle of equality
v Art 21(Art 5 of
FC)-about the right to life & PL
v The Supreme Ct
has given a broad definition with regards to equality-antithetic to
arbitrariness
v The ct also
adopted the made relationship between the principle of equality and PF
v The effect of
reading Art 5(1) & Art 8(1) together is the reason to make the procedure
which arbitrary or unfair to be unconstitutional
v How did the COA
adopted this principle in TTS?
v A public servant
whom a criminal charge has been proved against him may or may not be dismissed
solely in reliance of that ground-depends on the FOC
v The relevant
disciplinary authority needs not afford the public servant opportunity to be
heard and the right to make representation if it fall within the operation of
Art 135(2)(a)
§ Also, CoA held
that the disciplinary authority must when deciding the punishment-act fairly
and reasonably
§ If it act
unreasonably,unfairly or impose a punishment that is disproportionate, then it
can be quashed or set aside
§ In TTS’s case,
the CoA held the punishment was too severe and a lesser punishment ought to be
imposed
Pihak Berkuasa Negeri Sabah v Sugumar Balakrisnan
v whether the
decision made by PBNS to cancel entry permit of Sugumar was an act in
accordance with law
v Ct: PBNS has no
untrammelled power(kuasa yg x terhad) under this act to give order to terminate
one’s permit
v whether the
public decision maker has the obligation to act fairly for carrying out his
power under the IA 1963?
v Ct: even East
Malaysia has special right regarding immigration but no one could override the
Federal Consti. Hence, public dec maker including PBNS has the duty to obey the
FC provisions.
v CoA explained
what is meant by duty to act fairly in 2 aspects
v Procedural
fairness : such fairness requires a P.D.M to adopt fair procedure in making
decision
v Substantive
fairness : requires a P.D.M to reach a reasonable decision & determine any
punishment impose should be proportionate with the offence conduct
v Is Death Sentence
Violate Right to life?
Che Omar Che Soh v PP
v Involved
mandatory death penalty under Dangerous Drug Act(DDA)
v Held that
mandatory death sentence is constitutional
v Art 3 of FC does
not include Islamic law as the law of federation
PP v Lau Kee Ho
v Accused convicted
under Sec 57 ISA
v CH : Mandatory
death sentence is constitutional
v ARTICLE 5(2)
v 5(2) provides
that if someone complains of being unlawfully detained to a High Court judge of
similar or higher rank the court “shall” inquire into the complaint. The
“shall” suggests a mandatoriness notwithstanding that it is in the Constitution
because it concerns the right and liberty of a citizen. And if the court is
satisfied that the detention is unlawful, it would order him to be produced
before it and released.
v This is the
provision that allows for the filing of a Writ of Habeas Corpus.
v The Wikipedia
definition is, ‘a legal action, or writ, through which a person can seek relief
from the unlawful detention of him or herself, or of another person. It
protects the individual from harming him or herself, or from being harmed by
the judicial system.
v The writ of
habeas corpus has historically been an important instrument for the
safeguarding of individual freedom against arbitrary state action.
v When you hear of
people being detained under the infamous Internal Security Act 1960 (ISA) and
lawyers soon after rushing to court filing applications – that is what they
file.
Yeap Hock Seng
v YHS & 5 other
friend were detained under Penal Code
v Due to lack
evidence, the court ordered them to be released
v However they were
arrested again under Emergency Ordinance
v Whether the
Emergency Ord is valid and in accordance with Consti?
v HC : EO is valid
under Art 150 of FC-emergency law which passed
by PMent could be enacted e/t contrary to the provision of FC
v Therefore even
the ordinance provide for detention w/out trial, it is valid
Minister of Home Affairs v Chu Choon Yong
v Whether if the
detention was based on law, there is possibility that it would become void
later?
v CCY was arrested
and detained under Akta Buang Negeri
v CCY contended
that he has the right to Habeas Corpus on the ground that the continuous
detention for a long period contrary to Art 5(2) of FC
v HC: the detention
was valid at the 1st place but the delayed which has occurred in
this case made such detention became void
v FC: diasagreed
with HC-the order will continuously be exist until the order has been quashed
v Reason: the MHOA
has the discretion to grant such order
Looi Ah Yong v Supt Of Prisons Penang
v
HC: the power of detention of Immigration
Director is not for the purpose of punishment –only has the temporary power to
shift the party which was detained outside the state
v
The provision of any statute
regardless of criminal or not, not intended to become cruel, oppressive &
inhumane
ARTICLE
5(3)
v 5(3) states that
when a person is arrested he must be told why he is arrested as soon as
possible and be allowed to consult and be defended by a lawyer ‘of his choice’.
v Issue of ‘as soon
as may be’
Aminah v Supritendant
v The court has
defined as soon as maybe as ‘as merely as is reasonable in the circumtances of
the particular case’
v Issue the
duration to consult his lawyer
Ooi Ah Phua v Officer Incharge Of Crime Investigation
v In this case, the
councel was not allowed to meet with Aand the applicant appealed for habeas
Corpus on the ground that:
v The right to consult
and be defended by his council should starts immediately after being arrested
and this right is an absolute right
v FCt:the right of
a person who was arrested to consult his counsel start at the moment of arrest
but it could not be exercised immediately
v -the ct has
distinguished an existed right and the time to exercise the right
v -a balance must
be achieved between the right of a person to consult and the duty of the police
to protect the public from the df and to accumulate enough evidence
v The meaning of
legal practitioner of his choice
Mohd b Abdullah v PP
v Was charged of committing
CBT
v On the day of trial, the
counsel of the accused unable to attend and the trial still continued
v The 2nd counsel
was there and the accused was advised by the 2nd counsel to keep
silence when he was called to defence himself
v No appeal to reduce the
punishment made by 2nd counsel, thus, the acc appealed to HC on the
ground the session ct had made an error in listening to his case w/out the
presence of his defense counsel
v HC: there was no denial of
the right under Art 5(3):
v Whether an individual can
be deprived of his right to consult his counsel under Art 5(3) when he was
detained under ISA or a legislation w/out trial?
PP v Mah Chuen Lim
v This right was given to an
individual but it was not given to the counsel of the individual
ARTICLE 6
v 6(1) – Slavery
v-applies to both private and public sector, the
prohibition is absolute.
v6(2) – Forced Labour
v-otherwise than contract, it is up to 3
qualification:
v-Parliament may by law provide for compulsory
service for national purpose.
-
Work
incidental to serving of a judicial punishment (unless it is a hazardous labour
or working condition scarred dignity)
(6(3))
-
If
under authority of law , function of one public authority is transferred to
another public authority. (permitted by 6(4)) where the workers from first
public authority is transferred to the second.
ARTICLE 7
v7(1) – protection against retrospective criminal
laws.
v(but can be apply if it is purely procedural in
nature)
Gerald Fernadez v AG: Extradition procedure was amended retrospectively
to facilitate the return of a fugitive back to his country.
v(when the law changes the discretion limits of the
court and it was done during the trial)
PP v Mohamed Ismail: OKT was in court for an offence under Dangerous
Drug Act, where it was originally brings up to imprisonment or death sentence.
But on the day of the trial, amendment was made, making it Mandatory Death
Penalty.
vAccuse committed before the amendment came into
force, so it is invalid.Not mandatory death penalty.
v 7(2) – Protection against repeated trials. Cant be
charged under the same fact he had been convicted or acquitted.
v Discharge (dilepaskan)
/= acquitted (dibebaskan)
Fan Yew Teng v
PP : charge on sedition. First trial was cancelled, and
the PP try again and charge him with the same fact. App claim it is against
7(2).
v If trial had been cancelled, the triaol had no effect
to the person, so the person does not protected by 7(2). Some goes to when
individual had been acquitted, but the trial was void, so he was not a person
who had been acquitted, and not protected under art 7(2).
Sau Soo Kim : 2 people was convicted together, of the same fact,
but one of them was acquitted, while the other is convicted. FC declared that
it is void as they both are suppose to get the same sentence, but the person
who was acquitted claimed that he appeal, and the PP does not appeal on his
acquittal. He contended that the acquittal is valid and protected under s7(2).
v Since trial was declared as void, he cant be said as
acquitted, nor can he said to be convicted.
v Same offence
PP v Jamal
Adnan : Charge for
robbery and imprisoned. During in prison, he was charge again under ISA for
offence of possessing a pistol. Can he be charge based on the same offence?
Charge was based on same act or offence under ISA after the accused had been
charged, trialed and punished under PC.
v ‘Same necessary ‘ test in order to decide whether both
of charges are made for different offences.
v Armed robbery was serious type of theft which would
cause fear on victim while the essence of ISA was only ‘control over weapon w/o
valid power’
v Act by Disciplinary Tribunal controlled under art 7 ?
Mohd Yusoff
Samadi v AG: Teacher
molested students, and the accused had been acquitted. But the CPS then took
disciplinary action and charge him to dismiss. Acc appealed that the
declaration by SPC is void since it contradicts with 7(2).
v Court rejected his appeal, decide that what was said
as ‘profession misconduct’ is not a criminal offence. Art 7 protects only on
repeated trials.
v Individual discharge of murder, but detained under
emergency act (detain w/o trial)
Yeap Hock Seng
v Minister Home Affairs: offender and 6
ther people charge under murder. But then was discharge for not enough
evidence. Then they were detained under Emergency Act.
v Court allow,
v Only discharge, not acquitted.
v Even if acquitted, preventive detention only an
imprisonment which did not involve any trial. Thus, no involve art 7.
Article
8
v Article 8(1)
v “All persons are equal
before the law and entitled to the equal protection of the law”
v Absence of privileges
v Art. 8(1) requires absence
of any special privileges in favour of the rich & the powerful.
v All persons
in like circumstances should be treated alike.
v Equal punishment
v Equal
punishments should be imposed on persons accused of like offences regardless of
their status.
PP v Tengku Mahmood
Iskandar
v Respondent was convicted
for causing the death of a golf caddy as he was playing golf in the Cameron
Highlands. Since he was the son of Sultan of Johore, sentence was reduced. But
the decision was bound over & heavy punishment was given. This is by
referring to Art. 8.
v Everybody is subjected to
the same law to minimize tyranny.
v Procedural fairness
Tan Tek Seng v Suruhanjaya
Perkhidmatan
v Art. 8 can be used to
require public administrators to observe the duty of PF towards all citizens
including the giving of reasons for an adverse decision.
Hong Leong v
Liew Fook Chuan
v The court held that the
equality clause of the consti. can be used to require public administrators to
observe the duty of procedural fairness towards all citizens.
v Adjudicators must give
reasons for their decisions.
v Article 8(2) – Prohibition on discrimination
v There shall be no
discrimination against citizens on the ground of religion, race, descent, place
of birth and gender in the following areas:
v In any law
v In the appointment to any
office or employment under a public authority.
v In the administration of
any law relating to the acquisition, holding or disposition of property, or
v In the establishing of any
trade, business, profession, vocation or employment.
v Whether the principle of equality under Art. 8(1) is needed
to be read subject to the principles of non-discrimination under Art. 8(2)?
v In interpreting the basic
charter each clause must be read in the context of other clauses of the Consti.
v Art. 8(2) should not be
seen as an overarching & overriding provision to limit the scope of the
generic provisions of Art.8(1).
v The 5 prohibited grounds -
religion, race, descent, place of birth or gender – do not constitute a
comprehensive list of banned criteria of classification. The list is inclusive
(broad) and not exclusive (not limited).
v Doctrine of reasonable classification
v Each human is needed to be
distinguished according to their respective characteristic in certain
circumstances.
v Ex: the application of
taxation (tax law) -> follows the rates; rich people pay more, poor people
pay less.
v All discrimination is
unconstitutional except in 2 circumstances:
o If it is explicitly
permitted by a clause of Consti.
v 2. If the courts have
adjudged the differentiation to be
based on a ‘reasonable classification’.
v Based on this doctrine,
classification is allowed if the classifications made was reasonable &
possessed these 2 criteria:
v The classification must be
acceptable @ Intelligible Differentia
(perbezaan yang boleh dinilai oleh akal)
v Nexus with the lawful objectives (Meaning: The classification must
have rational relationship with the objective of the particular law).
v Cases where challenges made on State action on the ground it
violated Art. (8) even though no prohibited ground in Art. 8(2) was involved:
PP v Datuk
Harun Bin Idris
v F: Allegations that a
boxing match was wrongfully conduct n corruption exist. Case was transfer
directly from lower court to high court based on Section 418A of CPC. Datuk
Harun claimed this was unfair because the action was taken without ‘preliminary
enquiries’ from him.
v Section 418A of CPC allows
the AG to transfer criminal cases from the subordinate courts to the superior
courts.
v It was held by the HC that
Section 418A violate the equal treatment clause of Art. 8 and it gave a too
wide discretionary power to the AG and such power had the effect of
distinguishing people in which such distinguish was not based on a reasonable
classification.
v However, on appeal it was
held by the FC that Sec. 418A is saved bcuz Art. 145(3) of Fed. Consti. grants
power to the AG to transfer cases from one court to another.
v Also, the FC has decided
that there was intelligible differentia since:
o CPC has classified the
criminal cases into groups which can be decided by the courts & Sec. 418A
is applicable to all cases which can be decided by lower courts. So, there was
reasonable classification.
v Classifications under Sec.
418A were made for the purpose of smooth & effective administrative
administration (look at rational relationship) since there was principle in CPC
which becomes the guidelines for the AG to decide based on his discretion.
v In conclusion, this case
indicated that the principle of equality under Art. 8 illustrates that there is
possibility of existence of valid classification as long as such classification
is based on reasonable classification.
Johnson Tan Han Seng v PP
v The court has decided as
follow where the Fed. Consti has given the power/ discretion to the AG to
differentiate/ classify an indiv. from other indiv for the purpose of
prosecution since AG takes into account the consideration on public interest
when making such decisions.
PP v Khong
Teng Khen
v It was held Art. 8 does
not require that a law must operate alike on all persons or that it must be
general in character and universal in application.
v All that Art.8 guarantees
is that a person in one class should be treated the same as another person in
the same class.
v Parliament is permitted to
indulge in legislative classification of citizens according to their age,
income, profession, etc.
v However, the
classification must not be based on prohibited grounds and must meet judicial
standards of reasonableness.
PP v Tunku
Mahmood Iskandar
v The status of the accused
as a member of a royal house was held to be irrelevant in the imposition of
criminal penalties for culpable homicide.
Ong Ah Chuan v PP
v Challenge has been made on
the classification used by the legislative to determine what offences should be
punished with mandatory death penalty.
v In this case, it involved
the punishment of mandatory death penalty on the offence of drug trafficking
(heroine) of 15kg which was an offence under Sec. 3 of the Misuse of Drugs Act
1973.
v The court held it was the
duty of the legislative to determine what is the different situation which can
become the ground of any classifications for the purpose of punishment as long
as the factor which was accepted by the legislative to indicate the existence
of diff. situations have the reasonable relationship with the social purpose of
the law.
Malaysian Bar v Government
v A provision states that
lawyers of less than 7 years standing are forbidden from serving their Bar or
even its Committees.
Government v
Menon
v Differential rates of
pensions for those residing locally or abroad were challenged even though
‘seniority’ and ‘residence’ are not forbidden grounds for differentiation.
v In both cases (Malaysian
Bar & Menon), the challenges were upheld & the laws were declared
unconstitutional.
v Sadly, on appeal both
cases were overruled on the ground that the differentiation was reasonable.
Article 9 - FREEDOM OF
MOVEMENT & BANISHMENT
v Article 9(1) :
No citizen
shall be banished / excluded from fed.
v Issue : Whether citizen refers to citizenship
under malaysia's law?
v Refer to Art.
24-26 of fc which listed out 5 conditions on how citizenship can be
deprived on.
v Article 9(2)
(subject to clause 3 & any law): every citizen can move freely throughout
fed./reside any part thereof, except if the matter touches; (1) security of the
fed., (2) public order (3) public health & (4) punishment of the offenders.
v Case : Assa Singh V Menteri Besar Johor
v Held : art. 9
was enacted with objective to abolish the internal restriction so that country
can becomes living place of all its citizen.
v Case : Govt Of M'sia V Loh Wai Kong
v Held : freedom
of movement doesn't include (1) right to leave country, (2) go to the foreign
country & (3) obtain the passport. Granting of passpoort is on the
discretion of the exe. According to passport act which further subjected to
jud. Review. (JR)
v Article 9(2)
& article 8(4) - no public authority shall discriminate on ground of
residency / carrying business at any part of fed.
v Issue :
Whether restriction can still be imposed on ground of residency?
v Only if it
touches 4 matters : (1)
security of the fed., (2) public order (3) public health & (4) punishment
of the offenders.
v Article 9(2)
& Art. 4 (2)(a) - the validity of any law shall not qs based on the ground
that it imposes restriction on right under art.9(2) but does not relate to the
matters therein.
v Article 9(2)
& 9(3),[which incorporated in m'sia act 1963] - as it came into force
around 1963, sabah & sarawak have been given power to (1) regulate matters
of immigration in their own states & (2) exclude any person who are not
from west m'sia(refer to those from peninsular m'sia) from being residence in
those states [article 161e(4)] .
v Art. 161e(4) -
Pihak Berkuasa N. Sabah v Sugumar
Balakrishnan
v Held : fc -
minister decision on revoking the entry permit of peninsular m'sia's indi.
Can't be questioned, and there shall be no jr made upon it. Right prescribed under
Art. 161e(4) upheld. *critique using Rama
Chandran V Ic / Maneka Gandhi V Union India.
v Osman rashidi - published a
book which offended prophet muhammad / satanic & had been given death
punishment as many killing happened in india, he later ran to haiti. Here,
court said that we should balance the interest between individual although its
imposible to do so. So general approach suggested : if society in general
regarded such act is good then it'll be regarded as good. (society decision).
v General
importance :
v Symbol of
democracy - people are let to voice out
v Platform to
opt on govt policies / law
v One of way to
speed the dev. Of society in a vibrant state.
v FED. CONS. had
been enacted during the era where m'sia still under threat, thus the way we
improvise fc nowadays had to be changed to a new/fresh/globalised-mentality as
now we are at revival/development phase.
v Article
10(1)(a) - freedom of speech : every citizen has right to freedom of speech
& expression.
v Article
10(2)(a) - restriction by parliament via imposition of law may be made if its
deem necessary/expedient. (eg : police act 1985, sedition act 1948)
v There are 7
grounds under art.10(2)(a) in which parliament can use in imposing such restriction
:
v Touch interest
/ security of fed. / any part thereof
v Friendly
relation with other countries
v Public order
(sedition act, etc)
v Morality
(censorship act1952)
v Restriction to
protect privileges of parliament (the houses of parliament - privileges &
powers act 1952).
v Provide vs
contempt of court.
v Vs defamation
v Article 10(4)
v Parliament may
imposed any law to restrice the above freedom if its touches : any matter,
right, status, position, privileges, sovereignty & all 4 sensitive issues
(language, races, ruler & malay privileges) & art 149-subversion &
art 150-proclamation of emergency
v Article
4(2)(b)
v The validity
of any law shall not be qs on the restrictions as mentioned in art.10(2)
v Sedition act 1948
v Def. of
'sedition' - sec.3 of the act : include any words/act/anything that bring the
seditious tendency of the following efect :
v Invoke feeling
of dislike to king / govt.
v Invoke spirit
of people to change the king & govt.
v Invoke feeling
of dislike to the administration of justice.
v Raise up the
feeling of dislike among the people.
v Raise up the
feeling of racism.
v Qs in any
matter, rights, status, position, privileges & sovereignty & sensitive
issues. – CASE : Melan b. Abdullah
v Held that the
speech to abolish all chinese & tamil vernacular does amount to seditious
speech.
v Sec. 3(2)(b) -
allow the speech (have seditious tendency) if its to correct govt flaws.
v CASE : PP v Param Cumaraswamy & PP v Ooi
Kee Saik
v Held : The act of criticizing the
govt.’s flaw is counted for a defence although its uttered seditious.
v Test
applicable to see whether the words have the 'seditious tendency' or not :
v Intention to
caused the effect is irrelevant, only 'seditious tendency' need to be present.
- CASE : PP v Ooi Kee Saik
v Intention to
speak out the words relevant - voluntarily utter the words.
v Critism of
govt's flaws is allowed.
v Burden is on
the prosecution to prove that the words uttered have 'seditious tendency'.
v Mistake in
making seditious report is not a defence, but a 'true' report is allowed.
v Its
unnecessary for the prosecution to prove that the words will caused chaotic.
v Police
Act 1985 (PA)
v What is the
extent of power given to police in ensuring the public safety as under PA? See
;
v Nature of
enforcementgiven to police under pa.
v Manner in
which the discretion is given under PA.
v What is applicable under explanation
of PA for F.O.Assembly will be applicale here. Just change assembly to speech. J
v Art. 10(1)(b) : FREEDOM OF ASSEMBLY
– Peacefully & Without Arms.
v Art. 10(2) : Restriction may be
imposed by Parliament for such right if its deem necessary & expedient. –
security of Fed. / Public Order & Art. 149 (Subversion) & Art. 150
(Proclamation of Emergency)
v Police Act 1985 (PA)
v Later had been replaced with
Peaceful Assembly Act
v Sec.27(1)
v Gives power to OCPD (district police),
to govern the peace on the specific area &
v Power is given to the police to
regulate the assembly/speech (include – determine route used / time of
assembly) &
v CASE : Cheah Beng Poh v PP
v The assembly application must be
granted if they follow the procedure laid down & if the assembly doesn’t
create any threat to safety/peace/ & interest of public.
v CASE : Patto v Chief Police, Perak
v As per S.27A – the police officer in
charge of Police District (OCPD) is given discretionary power to either grant /
refuse the application based on the merits of the case. If they decided the
application based on order of Police State/etc, it’ll amount to abuse of power.
v It was also held that its
unreasonable for the police to refuse the license just 30 minutes before the
assembly began. The reasonable period of time to refuse is crucial.
v S.27(5B) – Def. of assembly is
anything that prejudice the peace done among 3 PEOPLE.
v The CPS – Chief Police of State only
have jurisdiction on the appeal application and not anytime before that.
v Sec.27(2)
v License request only granted upon
the satisfaction of the OCPD, OCPD shall consider the application whether it is
or it is not prejudice to the security of the fed., and upon the grant of the
license, condition must be served.
v Sec. 27(7) – Dissatisfied with OCPD,
the applicant may appeal to CPO, (Chief Police of State)
v Def. of assembly in “Public Place” :
v Sec. 3 of Interpretation Act – pub.
place any place which the public will have access (i.e. road, bridge, resort,
etc.)
v ISSUE : Whether such conditions will
be inconsistent with ‘F.O.Speech’? Refer below :
v CASE : Datuk Yong Teck Lee v PP
v Held : Sec. 27(2) is not prohibitory
but simply regulate & fulfill all necesity under Art.10(2).
v CASE : Madhavan Nain v PP
v FOC : Police imposed cond. saying
that the speech shall not touch the issue of SPM(MCE) dec. & Malay
Language, challenged on ground of inconsistency with Art.10(1)(a)
v Held : The cond. imposed was within
the 7 reason given under Art. 10(2), thus its consistent.
v CASE : Chai Choon Hon v Govt. Of M’sia
v FOC : DAP wanted to arranged
assembly of lion dance & dinner. There were 7 cond imposed by police where
2 of them been challenged : (i) No. of speakers – 7 only & (ii) Can’t talk
on the political issues.*Decided using ‘Reasonableness’.
v Held : (i) Unreasonable – invalid
cond. as it go vs the ‘Reasonableness’ Doctrine’ & (ii) Un-reasonable – as
a political party like DAP will definitely talk about politic in their meeting.
*Cond. on - Time only from 5pm –
11.30pm is reasonable.
v ‘WHAT IS ‘UNLAWFUL ASSEMBLY’
v Sec.27(5) of PA – ‘Any assembly
which :
v Carried out without license
v Refuse to obey any order given
v All person attending the assembly
which was held without license shall liable for an offence.
v S.27(5)(a) & (b) – Any person
who take part in the assembly.
v S.27(5A) – Its not a defence for a
person taking part in the assembly if they are not knowing that the assembly is
unlawful.
v S.27A of PA : WHAT IF THE ASSEMBLY
IS NOT HELD IN PUBLIC PLACE & NO LICENSE GRANTED? CAN THEY BE CHARGED?
v As long as its intended to be done
so that person outside will participate / attract 20 or more people to observe
/ prejudicial to security of Fed. & public order it’ll still chargeable
under police act. Pub. place is a only un-mandatory element.
v ARTICLE 10(1)(c) – FREEDOM OF ASSOCIATION.
v CASE : Malaysia Bar v Govt of M’sia
v Held : Art.10(1)(c) only give right
to form association not to manage it. *arguable
– how to form without managing?
v Art. 10(2) – Parliament may be
imposed any law to restrict the above right if it find its necessary &
expedient to do so, as it touch on security of Fed. / Public order / morality.
v CASE : Dewan Undangan Negeri Kelantan V Nordin Salleh
v FOC : In the Article of Kelantan’s
Consti., its stated that Adun Kelantan which is also a member of political
party, after his resignation / expel from that party must also resign from
being ADUN.
v Held : Test of “Direct & Inevitable Effect” to see whether the Art. in the
Kelantan Consti is unconsti. or not.
v Qs to be asked : Is the Art had directly affect the fundamental liberty
& is such inevitable effect had
caused the enjoyment of F.O.Association to be in effective?
v Other factor : Does this Art of
Kelantan Consti goes under restriction allowed by FC as per Art. 10(2)(c) –
Court held ‘NO’ as :
v Its Parliament jurisdiction not
State Assembly to impose restriction.
v Restriction can only be done on
ground of security of fed. / public order / morality.
v Art. of Kelantan Consti doesn’t
belong to any ground in Art.10(2)(c) of FC.
v CASE : Abdul Karim v Legislative of Sabah
v Parliament can never imposed any
restriction for any member of Parliament to change / dismiss themselves from
their original political party after won the election as this will contravene
with Art. 10(2)(2) – only for sec. of Fed / public order & morality.
v Art. 10(3) – Restriction may also be
imposed in any law relating to labour/edu.
Police Act Had Later Be Substituted With Peaceful Assembly Act.
PEACEFUL ASSEMBLY ACT
*But the way the court interpret this Act, still the same, as they are
likely stuck at the old ages interpretation of over the old Act, Police Act.
Printing,
Presses & Publication Act 1984 *(Amended on 1987)-comparison between 1984 & 1987;its significance.
·
Was
well-known as the most restrictive statute in old days.
·
Was
aiming to the media such as newspaper, news, broadcast and others.
1984
·
Sec.3(3)
– Minister may in his absolute discretion grant any person a license for the
printing press, and he also may, in his absolute discretion refuse any
application, at any time revoke/refuse such license if he consider it is
desirable to do so.
·
Sec.
8A(1) – upon the publication that had been done MALICIOUSLY and it’s a FALSE
NEWS, all 4 of the Printer, Publisher, Editor and the Writer will be held
liable guilty for an offence and shall be served with punishment of
imprisonment not more than 3 years, or fine not exceeding RM20k, or both.
·
PP v
Pury Chen Choon
v Sec. 8A(1) had been challenged on the ground that
this law which enacted under guardian of Art.10(1)(a) of FC, was vs the Art.
10(2)(a), thus must be declared void.
v Held :
i.
Any
restrictive law made under Art.10(1)(a) is valid as long as it has sufficient
interest with the subject under Art. 10(2)(a) of FC.
ii.
The
issue with regard to the unreasonableness was not relevant at all as, the
freedom of newspaper in Malaysia must not be comparable to the freedom
sustained in India, England or US. This is because, we totally have diff.
background culture of society, politic range & etc.
1987
·
Sec.6
– The minister is given discretionary power to the application & revocation
of the license.
·
Sec.12
– Duration of the permit to publish & print only last for 12 months, after
that, the applicant must make a fresh application to get the license and not
the extension application.
·
Operasi Lalang – 1997
v A few newspapers had been banned to slow down their
critical warning & at the same time to make such media to fear & lean
more to govt.
v This include, Akhbar Watan, Sin Jiew Chek Poh &
The Star.
v The Star in which was so critical before the
suspension had slow down their radical news & had put up a safer kind of
comment which lean more to govt as afraid their license may be revoked back.
Significance
of Amendment :
·
JR had
been totally excluded on the application to challenged the ground in which is
used by the minister to derive to his decision.
·
This
subsequently denied the RTH (Right to be heard) of the applicant on the process
of the application of the license and on the revocation of the permit.
·
The
renewal license system had been replaced with the fresh application system for
the purpose of sustaining the license.
OFFICIAL
SECRETS ACT 1972
·
OFA v
F.O.Information
v OFA – All the info belong to govt are off. Secrets
unless its de-classified.
v F.O.Information – All govt. info are open to public
unless its classified as secret & confidential.
*Great countries which support ‘democracy’ should
applied F.O.Information.
·
Sec. 2
of the OFA
v Any doct. / info / etc that may be classified as
top secret / confidential / restricted/ any info that the minister / chief minister
classified as the OS info.
·
Sec. 8(1)
of the OFA – offence under this act
v Communicates the info to other party
v Use the info as to prejudice the safety of M’sia
v Retain in the possession of such info when he had
no right to do so
v Fail to take reasonable care of such info
·
PP v
LIM KIT SIANG
v About warship’s tender
v Principle :
i.
The
act of ‘receiving’ such info is an offence under the act.
ii.
Offence
still committed despite the fact that the info was obtained from non-official
resource.
iii.
Good
faith in disseminating the info is not a defence.
·
DATUK
HAJI DZULKIFLI’s CASE
v Principle :
i.
Doct
will not lose it status as OS if the info is disseminate without knowing the
sender = the recipient still liable
ii.
Even
if the info is a ‘public knowledge’s info’, the status still sustain as OS
iii.
Once
the info is classified as secret, only the same person who ‘classified’ can
‘declassified’.
AKTA
KOLEJ & UNIVERSITI 1971
·
To
regulate the universitiee movement / discussion on the public law issues.
·
Peak
era : 1970 student activisim.
·
CASE :
MOHD HILMAN IDHAM
v COA – the students were suspended because they
presented at election.
v Sec. 15(a) was later expel & substitute with
provision that allow students to involve in party politic (Sec.15(d)).
ART.
11 OF FC - FREEDOM OF RELIGION
·
1st
issue : Is religion include ‘cults sects (ajaran sesat)’ / Satan worship
ü CASE : AYAH PIN
v Religions that are acceptable as religion must not
Threaten the public interest & Destroy the belief (aqidah).
v All are subjected to society majority voice.
·
2nd
issue :“Any person” in Art.11 of FC includes ?
ü CASE : SUZIE TEOH ENG HUAT V
KADHI PASIR MAS
v A girl aged 17 years 8 months old had converted
into Islam, done by Kadhi Pasir Mas. Her father had make a claim before the
court for 2 issues :
i.
Custody
ii.
Declaration
of power as a parent for the determination of his child who age was below 18
y.o.
v High
Court :
ü The judge had posted a qs on why the ‘framer’ of FC
does not include any age’s frame for the purpose of Art.11
§ Because there is no specific phase of time in which
a person is determined to be able in deciding his/her religion.
§ ‘Age’ is an irrelevant issue as the judged opted
that as long as (s)he is SOUNDMIND & ABLE TO DECIDE, that
person is within the meaning of “any person” prescribed under Art.11 of FC.
§ Judge also opted that the religion issue is
something that can’t be measured by the age’s factor, but only can be
determined from the case to case basis (depend on the facts of case).
ü In HC, the judge held that the age of the girl that
was 17 years & 8 months is sufficient enough to have capacity to decide on
her religion.
ü The issue on Art. 12(3) in which stated that ‘no
person shall receive any instruction if it is regarding the ceremony in
religious matters’.
ü Art. 12(4) which provided that for the purpose of
Art. 12(3), parent shall have power to decide on the religious matters.
ü Art. 12(4) must be read together with (3), as the
power of parent only extended to the ‘education’s’ matter only.
APPEAL
v Supreme
Court’s decision
·
As in
the general rule, this case had fall within the civil law jurisdiction.
·
In
civil law matter, if there is no provision for the reference of age, the age
shall follow the rules of majority age that is 18 years old.
·
In
this level of court, the court had held that the parent has power to decide on
the religion’s matter of the children who aged below 18 years old.
*Dr. Johan comment : we should set up a Constitutional Court, as what
had been practise in Thailand, Indonesia which deal specifically with the
constitutional issue. Of course this court will be the highest level of court
that deal with consti’s issue. Its members must also be expert both in Syariah
& Civil in order to solve the issue of jurisdiction of Syariah & Civil
Law.
·
3rd
issue : PROPAGATION OF RELIGION – Art. 11(2) & (4)
v Propagating includes rights to build the religious
institution, and the activity to propagate the religion itself.
v To propagate the religion to Muslim will amount as
prescribed under Art. 11(4).
v Issue – Can the offence of propagate the religion
to Muslim is chargeable under ISA?
ü CASE : MIN. OF HOME AFFAIRS v
JAMALUDDIN OTHMAN (Joshua’s case)
ü FOC : The accused had brought 6 Malays into
Christian faith. He had been detained under ISA on ground that he had threatened
the public security & safety.
ü Held – He shall not be detained under ISA.
v Preventive detention as stated under Art. 149 of FC
only touch Art. 5,9,10 & 13. Nothing on Art.11, which show that Preventive
Detention is not allowed to be used for Art. 11, F.O.Religion.
v Thus, the detention was unlawful.
ü Art. 11 is guarantee to an indi. if there activity
i.
Is
made the conduct that within the NORMAL occurrence of his religious
belief.
ii.
As
long as NOT AFFECTING the public order.
ü Qs on whether the Joshua act is within his normal
conduct of the Christian religious belief, was firmly answered as – Its normal
for him to propagate his Christianity to others, BUT
ü It is an offence for him to propagate such belief
to MUSLIM.
ü This is an offence prescribed under FC, not ISA.
·
CASE :
HAJJAH HALIMATULSADIAH v PUBLIC SERVICE COMMISSION
v FOC –A woman had been dismissed by PSC as she had
breach a ‘surat pekeliling’’s condition on the prohibition of wearing purdah
while working. She was a clerk in the Perak Legislative Office.
v Issue – Whether the surat pekeliling is a
constitutionality provision?
v Held – As referring to the case of Joshua, the
court in this case had to see whether such religious belief/practise is
prescribed within the NORMAL activity of her religion. In
this case, Hajjah had failed to prove that wearing a purdah is within a normal
conduct as a muslim. This is because there is no specific Al-Quran verses which
says that its compulsory for a muslim woman to wear purdah.
v As this conduct is considered to have prejudice
upon the public security (disguise issue,etc), the dismissal was lawful.
·
4th
issue : FREEDOM TO LEAVE THE RELIGION
v CASE : LINA JOY v AGAMA ISLAM
WILAYAH PERSEKUTUAN & ANOR
ü FOC – Azlina Jailani had actually claimed that she
had converted her religion from Islam to Christian in 1998, was baptized, and
expressed her intent to marry a Christian. But she can’t has her marriage
legally contracted unless her new Christian status is recognized by NRD
(National Registration Department). She had submitted a few applications to
NRD, only her name was allowed to be changed to Lina, but her religion still
Islam. NRD said her applications were rejected as there was absence of an order
from the syariah court.
ü Issue & Judgment :
i.
Is the
act of NRD is lawful?
§ Yes, as it very legal to follow the procedure that
is to refer to an order from the syariah court in order to make sure the
allegation made by the applicant (LINA) is valid & true.
ii.
Is the
Syariah Court is the proper party to declare indi. religion?
§ Yes, as the jurisdiction of Syariah Court is clear
on this field, stated under Item 1, State List, 9th schedule of FC.
iii.
Is the
freedom of religion included the freedom to renounce (leave) the ori. religion?
§ No.
iv.
If
not, what is the appropriate parameter on the F.O.Religion?
§ Protection only fully open to the religion where it
can be accepted by all community and not prejudicial to any public
safety/security.
ART.
12 – FREEDOM OF EDUCATION
·
CASE :
MERDEKA UNIVERSITY v GOVT. OF M’SIA
v FOC – The Pf in this case wanted to set up a new
university which used the Chinese’s language as the medium of teaching & learning
but was prevented by the govt.
v Issue – Did the act of Govt of M’sia is
constitutional?
v Held – Yes. Because :
i.
Art.
152 of FC – Only Malay language is allowed to be used for the national purpose.
The set up of university together with it’s teaching & learning programmes
are within the ‘national purposes’ although it is private university as it
touches the public. (Cross refer with Art.160)\
ii.
FC
must not be rigidly interpreted, and at the same time not interpreted in a way
that is too liberal as both of this act with only bring injustice upon the
aggrieved party.
*Dr.Johan comment : In this case, the judgment which was based on Art.
152 & 160 was said to overpower the spirit of Art.12 of FC.
ART.
13 – RIGHT TO PROPERTY
· It is not an absolute right, as if this right is to
be made so, it will create chaos as there will be many encroachment of land and
building between the indi to be taken into place.
· Art. 13(1) – “No one … deprived form his property ...
save in accordance of law”.
v Noted that ‘in accordance of law’ in Art. 13 &
Art. 5 is diff. in term of its strictness of application as, its applied more
strict in Art. 5 as it involve ‘life’ & ‘fund. liberties’.
v CASE : ARUMUGAM PILLAI v GOVT
OF M’SIA
ü ISSUE – Assessment of taxes – deprivation as per
Art.13
ü Held –
i.
So
long as the taxes is made by a legally authorised party, follow the procedures
perfectly, and their act is fully authorized by Statute, it is very legitimate
to impose such financial levy/tax.
ii.
Tax
doesn’t touch the ‘life’ issue.
iii.
In the
law regarding financial levy, a perfect enacted law was needed in order for the
‘save in accordance of law’ in Art.13 to be fully effective.
·
LAND
ACQUISATION ACT 1960
v Sec. 3 of the Act : State can acquired any part of
the land for the following grounds –
i.
Public
interest
ii.
Economy
development’s purposes – which enable ANYBODY to acquire the land on behalf of
the State with intention to dev. the eco. (Of course the authorisation from the
authority is needed)
v Art. 13(2) - Under FC, only one right is recognized
that is right to be adequately compensated upon the acquisition of the land,
and nothing more.
v CASE : S. KULASINGAM
ü FOC – In this case, the App’s land had been taken
by the State as to erect a hockey’s stadium.
ü ISSUE – The App claimed that he should be given
‘pre-acquisitive’ hearing before the land is being taken away – Natural
Justice’s rules.
ü HELD – FC had underlined that the right prescribed
under the FC only right to gain ‘adequate compensation’ and not the right of
‘hearing’.
SPECIAL POWERS: EMERGENCY
·
Provided in the FC for handling
special situations, sudden and needs a special action / Only for extraordinary
situation as it is extraordinary law.
·
Purpose:
i.
Extreme provision to tackle
extreme condition.
ii.
Temporary – Only to till the
extreme situation go back to normal situation.
·
We have 2 laws under the Special Powers’ side :
i.
Preventive detention law –
special measure to counter activities that will affect public order.
ii.
Emergency law
EMERGENCY POWERS
·
Is under art 150 of FC.
·
Happens when they use
‘emergency law; as an example EPOPCO [Emergency (Public Order and Prevention of
Crime Ordinance)], along with ordinary law.
·
EPOPCO – *1 of the law enacted
under the Emergency Law.
v Was enacted amidst the 1969 racial riots to stop the organised crime
which spread violence and destruction that plagued certain parts of Malaysia.
v Govt. don’t want to revoke this law as they said the revocation will
make their detainees to go free, as there should be no detention after the law
had been repealed.
v However, the law was not repealed even after the hostilities ended.
v Over the years, the EPOPCO has been used to detain violent
criminals and suspected gangsters who cannot be formally charged in court due
to lack of evidence.
v The EPOPCO has been criticized severely by civil society groups for
alleged abuse by the police for arresting and detaining individuals for cases
where there is clear evidence to charge them formally in court and using the
Act as an ‘easy way out’ in order dispense with police investigations and to
search for evidence.
v EPOPCO had been repealed years back and the result are :
i.
Increase in crime rates after
the revocation.
ii.
The increase was said due to
lack of preparation on the revocation. *Should have put a backup plan / enact
ordinary law to counter the daily problem.
·
Everyday probs should be tackle
with every day laws.
EMERGENCY
LAW TO CURB POLITICAL UPHIEVAR
Ø CASE : STEPHEN KALUNG NINGKAN
§ FOC – The indi had been asked to retired, but upon his refusal to do
so, he had been fired by the Gabenor. He had filed the case to the court, and
the court held that his dismissal was invalid and he shall be reinstate as
Chief Minister. Valid dismissal is only via vote of no confidence. Later, YDPA
declare emergency, to gather the member of ADUN, then make vote of no confidence.
§ HELD – Court allow the Gabenor’s act to declare the emergency as to
curb the political crisis, and to sustain a normal situation of the society.
EMERGENCY
LAW TO PREVENT THE FUTURE CRISIS.
CONSEQUENCES
OF ART.150 OF FC :
·
YDPA is sole judge to declare
emergency, but must obtain the PM’s advice on it.
·
150(2A) –Power to issue
different proclamation according to the situation.
·
150(3) – Shall stay until
annulled by the both houses.
·
150(4) – Extent of exe. power
may interfere the legislative state assembly.
·
150(5) – When parliament reside
and can do any law that is against const.- no need consultation and Art 70
shall not apply at this time.
·
150(6A) – the parliament’s
limited to matters or religion, nationality and language.
·
150(2B) - When parliament is
not sitting, the YDPA will promulgate ordinances, and it is allowed for him to
enact any ordinances that he confers to be appropriate, although it may go vs
the provision in FC itself. *Only for emergency period.
·
150(8) – Court can’t qs YDPA on
the emergency matters, and the extend of this absolute power can be refer from
the exclusion clause.
ART.
150(3) – *The emergency will end if its revoked by YDPA & Parliament (Both
Houses).
Ø CASE : JOHNSON TAN HAN SENG
§ Court can’t question YDPA and emergency law, and there is parameter
to be followed upon the withdrawal of emergency’s declaration.
PREVENTIVE
DETENTION (PD)
·
Art.
149 refer to “subversion” -> def. of subversion in Art. 149(1).
·
PD
is a type of law that existed during the “transition period”. (Emergency – Transition
period – Normal Situation)
·
Its
existence during that period is to cater any threat that may come into
existence after the emergency period.
·
Legislations
related to Art. 149:
Ø
Internal
Security Act 1960 – Substituted with SOSMA
Ø
Dangerous
Drugs (Special Preventive Measures) Act 1985
Ø
Dangerous
Drugs (Forfeiture of Property) Act 1988
CASE -
THERESA LIM CHIN CHIN & ORS V INSPECTOR GENERAL OF POLICE [1988]
ü
Issue:
Whether laws made under Art. 149 restricted to communist threat only?
ü
Held:
No.
Procedure
·
To
pass law under Art. 149 does not require special vote (i.e. 2/3) BUT only requires simple majority
of those who present & voting in the 2 chambers of Parliament.
·
Also
doesn’t require consent of Malay Ruler’ Council and/or YDP of Sbh & Srwk.
·
The
requirement of consultation with the States under Art. 79 for topics in the
concurrent list does not apply.
Scope of
powers under Art. 149
v
Parliament’s
power to enact legislation against subversion is extremely broad in the sense
that:
·
No
requirement that the subversive activity should be continuing or subsisting at
the time the law is enacted.
·
No
proof of actual harm is needed. Fear of such harm is enough.
·
Whether
a proclamation of emergency under Art. 150 is in operation or not, legislative
action to combat subversion can be undertaken as and when the need arises.
Ex: ISA can
continue to exist even if the state of emergency comes to an end.
·
Under
Art. 149, Parliament is given special power to pass special law for subversive
act. However, it does not provide power to the Exec. to do so.
·
In
short, power under Art. 149 relate to legislative power, not the exec. power
i.e. it relate upon Parliament & not upon YDPA.
COMPARE WITH ART. 150:
Ø
Art.
150 allow not only Parliament but also YDPA to make law to frame crisis laws.
Ø
Besides
making law, the Fed. Exec. can take administrative steps which are suitable to
solve the emergency.
·
BUT,
under Art. 149, it is permitted to violate only 4 fundamental rights i.e. Art. 5, 9, 10 & 13.
·
Any
law enacted under the preventive detention, the law MUST fit one of the grounds
listed in Art. 149 (a-f)
Minister
of Home Affairs v Jamaluddin Othman [1989]
ü
F:
Man converts out of Islam. Seek to convert others into his new-found faith.
Detained under ISA.
ü
Held:
Cannot because Art. 149 does not authorise the curtailment of rights under Art.
11 (freedom of religion).
Art. 151
cannot be violated
Art. 149 & 150
cannot violate the safeguards entrenched in Art. 151. Preventive detainees are
entitled to the following procedural rights:
·
Informed
as soon as may be of the grounds of detention.
·
Informed
as soon as may be of the allegation of fact on which the detention order is
based. However, facts need not be disclosed if in the opinion of the authority,
their disclosure would be against the national interest: Low Soon Mooi v
Menteri [1989]
·
Given
the opportunity of making representations to an independent Advisory Board (AB).
·
No
to be detained unless the AB has considered any representations made by the
detainee & made recommendations thereon to the YDPA within 3 months of
receiving such representation or within such longer period as His Majesty may
allow.
Ex: Re Tan Boon Liat [1977]
- The
writ of habeas corpus was issued because the Board did not meet the time limit
of three months as it stood at that time.
ISA
·
Purpose: to provide for the internal security of
Malaysia, preventive detention, the prevention of subversion, the suppression
of organised violence against persons and property in specified areas of
Malaysia, and for matters incidental thereto.
·
2
most controversial provisions of the ISA are section 8 & section 73 where preventive detention is allowed.
Sec. 8 – PD under discretion of Minister
·
Sec. 8(1): authorises the Home Minister to
make a detention order to detain a person without trial if he is satisfied that
the detention is necessary to prevent such person from acting in any manner
prejudicial to the security of Malaysia … for a period not exceeding 2 years.
·
Sec. 8(7): Minister has power to extend the
period of detention for 2 year period either on the same grounds as with the
previous detention or on different grounds or partly on the same grounds and
partly on different grounds.
PP v Musa
ü
Held:
It was not against the law for the Minister to order for a person to be
detained.
Sec. 73 – PD under discretion of police
·
Authorises
the police to arrest a person without warrant and detain such person pending
enquiries in 2 situations:
·
First,
when the police have reason to believe that there are grounds which would justify
the person’s detention under section 8.
·
Secondly,
the police can arrest and detain a person if such person upon being questioned,
fails to satisfy the police as to his identity or as to the purposes for which
he is in the place where he was found.
Judicial
Review
·
Courts
have no jurisdiction to review the Minister’s subjective exercise of discretion
to detain under Sec. 8 of ISA.
·
It
has been affirmed in many cases such as:
Theresa
Lim Chin Chin v. Inspector General of Police
ü
F:
Lim, the leader of the opposition party DAP, was arrested during Operasi Lalang
(police crackdown on critics of the government).
ü
Held:
The court will not be in a position to review the fairness of the
decision-making process because the Constitution and the law protect the police
from disclosing any information and materials in their possession upon which
they based their decision.
Karam
Singh v Menteri Hal Ehwal Dlm Negeri [1969]
ü
Judge
Suffian stated “Whether or not the facts on which the order of detention is to
be based are sufficient or relevant, is a matter to be decided solely by the
executive. In making their decision, they have complete discretion and it is
not for a court of law to question the sufficiency or relevance of these
allegations of fact.”
·
The
non-justiciability of a Minister’s order under Sec. 8 is, however, subject to
exceptions on the ground of mala fide.
Tan Sri
Raja Khalid Raja Harun [1988]
ü
F:
A PD order against a banker.
ü
Held:
The detention was mala fide because there was a misuse of PD power for a
purpose not contemplated by the law. There was no evidence that the detainee
had acted in any manner prejudicial to national security.
Minister
of Home Affairs v Jamaluddin Othman [1989]
ü
PD
was unconstitutional because Art. 11 is not subject to suspension under Art.
149.
Karpal
Singh v Menteri Hal Ehwal Dalam Negeri [1988]
ü
The
minister’s order for detention was mala fide as it was made without due care
and caution.
ü
In
this case, one of the six charges was factually incorrect and made in error.
Hence, habeas corpus was granted.
Nasharuddin
Nasir v Kerajaan [2002]
ü
Held:
The act of permitting detainee to meet his family but not his lawyer was
arbitrary & showed mala fide.
Mohamad
Ezam Bin Mohd Noor v. Ketua Polis Negara [2002]
ü
The
purpose of detaining the detainees was held mala fide because the detention
made by the police under sec. 73(1) was not for national security purposes but
to inspect the app’s political beliefs & activities.
Procedural
issues
·
Complaints
of non-compliance with procedural requirements can be raised before the courts.
·
Technical
defects may invalidate an order of detention: Re Datuk James
Wong Kim Min [1976]
Re Tan
Boon Liat [1977]
ü
Failure
of the AB to consider the detainee’s representations & make recommendations
thereon to His Majesty within the time limit of 3 months was held to be fatal
to the detention order.
Mohamad
Ezam Bin Mohd Noor v. Ketua Polis Negara [2002]
ü
There
was judicial intervention because of police failure to communicate the grounds
of arrest and denial of legal representation contrary to Art. 5(3) of the
Constitution.
ü
Although
Art. 149 can violate Art.5 BUT Since ISA makes no explicit provision for denial
of access to legal representation, the right to counsel in Art. 5(3) is still
applicable.
Abdul
Ghani Haroon v. Ketua Polis Negara [2001]
ü
Judge
Hishamudin (as he then was) ruled that procedural irregularities, including
failures to permit access to lawyers and family, and failures to state the
grounds for arrest and extension of the detention, made the police detention
invalid.
Abd Malek
bin Hussin v Borhan bin Hj Daud & Ors [2008]
ü
Issue:
Whether the detention and the extension of detention of the plaintiff was
lawful. Apart from that, the plaintiff also brought the case of assault and
battery suffered by him.
ü
F:
The defendant is the leader for the special branch officers that detained the
plaintiff. The plaintiff has only been vaguely told that his arrest was under
the ISA after he asked. When in custody, he was physically assaulted and his
mouth was poured with some foul urine-like liquid. The plaintiff claimed that
the interrogation was only focused on his relationship with Datuk Seri Anwar
Ibrahim, the 'reformasi' movement and opposition politics. Overall, the
plaintiff spent 57 days in police custody and under solitary confinement.
During this 57-day period he only saw his family twice and was denied access to
legal representation.
Held: The detention is unlawful. Furthermore, the
court stated that the nature of the interrogation was clearly political in
nature and that “it was being done for collateral purposes and had nothing to
do with genuine concern for national security.” The plaintiff was awarded RM1m
in exemplary damages.
Extra case
Darma
Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors [2010]
ü
The
appellant was arrested pursuant to the provision of the Emergency (Public Order
and Prevention of Crime) Ordinance 1969 (‘the Ordinance’). By an order issued
under s 4(1) of the Ordinance applied by the Home Affairs Minister (‘the
Minister’), the appellant was detained for a period of two years. The Minister
had directed the detention of the appellant to prevent him from acting in a
manner prejudicial to public order. The appellant was, in accordance to s 4(4)
of the Ordinance, served a statement of facts stating, inter alia, that the
appellant was involved in the smuggling of stolen cars out of Malaysia.
ü
The
appellant’s representation to the Advisory Board under art 151(2) of the
Federal Constitution was dismissed with recommendation to the YDPA. The
appellant subsequently applied for an order of habeas corpus but was declined
by the High Court on the ground that the appellant’s activity came within the
scope of public order.
The
Transformation Era – The New Security Offences (Special Measures) Act 2012
·
Replace
ISA
·
Purpose: to provide for special measures relating to
security offences for the purpose of maintaining public order and security and
for connected matters.
v
Some new features:
·
Fundamental
liberties guaranteed Art 5, 9 , 10 and 13 need not to be considered in a
detention under this Act,
·
Gives
power to the police to detain a person up to 28 days, which is much better than
ISA quantitatively as ISA gives the power to detain a person up to 60 days and
2 years on the order of the Minister.
The police
under S5(1) shall immediately notify the next-of-kin of such person of his
arrest and detention and the detainee can consult with the legal practitioner
of his choice.
Done By :
AMERA MOHD YUSOF
FACULTY OF LAW , UM
thank you :))
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