Art 5 (1) Life
Art 5 (1) Life
Art 5 (1) Life
PREPARED BY:
PI005U07
PREPARED FOR
Decisions :
2
Case analysis Tan tek Seng V Suruhanjaya Perkhidmatan Pendidikan & Anor (1995) 2 MLJ 476 High Court
Judgement Lexis Nexis.
Abdul Malik Ishak j in his judgement finding that the charge was proved under s
173A(ii)(b) of the CPC was tantamount to a finding of guilt but the court would not be
inclined to record a conviction before binding over the plaintiff conditionally thereto. And
since there was a finding of guilt, it would squarely fall within the ambit of the definition of
the word 'conviction' in para 3 of the GO and, consequently, the Setiausaha, Suruhanjaya
Perkhidmatan Pendidikan, Malaysia was correct when he decided to dismiss the plaintiff. The
dismissal against the plaintiff was part the dismissal of the plaintiff was perfectly legitimate
and effected according to law. Claim dismissed
Ratio Decidendi:
Per Gopal Sri Ram JCA (Ahmad Fairuz J concurring)
(1) . The expression “law” appears in art. 5(1) and 8(1) of the Federal Constitution includes
procedural law, and in particular, any procedure prescribed by written law. If a particular
procedure prescribed by written law is found to be arbitrary or unfair or the procedure
adopted in a given case is held to be unfair, then, it must be struck down as offending art.
(2) the protection afforded by art. 135 had been lost to the appellant, and so, the learned
Judge, Johor Bahru High Court, was also correct in holding that the appellant was not entitled
to a hearing before his dismissal herein. Under General Orders 33 and 35 a member of the
public service who has been bound over under s. 173A, the disciplinary authority must
peruse the record of the criminal proceedings and take into account the relevant
circumstances, including any departmental report or recommendation
(3) The interest of justice is to consider the new point raised by the appellant that the
dismissal was open to challenge for being harsh and unfair. This is particularly so when there
was no objection taken by the other party. There was also no new evidential point raised In
3
Case analysis Tan tek Seng V Suruhanjaya Perkhidmatan Pendidikan & Anor (1995) 2 MLJ 476 Court of
Appeal Judgement Lexis Nexis
his judgment, Gopal Sri Ram held , when discharging their duties as interpreters of the
supreme law, adopted a liberal approach in order to implement the true intention of the
framers of the Federal Constitution. Such an objective may only be achieved if the expression
'life' in art 5(1) is given a broad and liberal approach. Since Tan was deprived of gainful
employment without a fair hearing, under this broad interpretation of Article 5, his dismissal
was wrongful and unconstitutional.
Other issues arise in this case is whether the principle of administrative law can be used
to interpret Malaysian constitutional law such as Article 5(1). This ideal can be achieved by
strengthening the remedies and reliefs against the administration which an individual can
invoke when he is adversely affected by a particular administrative action. This is a constant
quest and improving the redressal process against the administration is a dynamic process. It
4
Zulkarnain Bin Luqman ,Fundamental Liberties in Malaysia,2010,p.63
has come to be realised that the traditional system of judicial review has severely lacunae and
is now hardly adequate in view of the expanding powers of the administration and therefore
some extra judicial mechanism of control to supplement judicial review is very much the
need of the day. A strict demarcation between constitutional law and administrative law may
not be possible as the two are interrelated. Although certain topics are discussed under
constitutional law, and certain under administrative law, there is some common ground
between the two.5Administrative law, it may be said justifiably, deals with authorities and
administration at a lower level, while constitutional law deals with the three top organs of the
state, although some aspects of functioning of these organs are relevant to administrative law
as well but it depends in a matter of convenience and choice as to what discussed.
5
Nature and Scope of Administraion Law,p.17
6
Case analysis Public Prosecutor V Lau Kee Ho [1983] 1 CLJ Federal Court Judgement Lexis Nexis
In this case, Lau Kee Ho as the respondent was being charged for having under his
control in a security area without lawful authority. He was charged under Section 57(1) of
Internal Security Act 1960 that can lead to mandatory death sentence. At the beginning of the
trial, Mr. Karpal Singh as the respondent counsel raised a preliminary point that death penalty
was unconstitutional. Also the defendant raised up that death penalty under Section 57(1) of
Internal Security Act 1960 was ultra vires and contravene with the Article 5(1), Article 8(1)
and Article 121(1) of the Federal Constitution.
Legal issue of the case:
Whether the mandatory death sentence provided under Section 57 (1) of the Internal
Security Act 1960 is ultra vires and violates Article 5 (1), 8 (1) and 121 (1) of Federal
Constitution
Legal provision of the cases:
The legal provisions in this case is Article 5(1) of Federal Constitution, Article 8(1) of
Federal Constitution and 121 (1) of Federal Constitution
-Article 5(1) of Federal Constitution under Liberty of the person stated:
(1) No person shall be deprived of his life or personal liberty save in accordance with law
-Article 8(1) of Federal Constitution under Equality stated:
(1) All persons are equal before the law and entitled to the equal protection of the law
-Article 121(1) of Federal Constitution under Judicial power of the federation stated:
(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely-
(a) One in the States Of Malaya, which shall be known as the High Court Of Malaya and
shall have its principal registry at such place in the states of Malaya as the Yang-Dipertuan
Agong may determine; and
(b) One in the States of Sabah and Sarawak, which shall be known as the High Court in
Sabah and Sarawak and shall have its principal registry at such place is Sabah and Sarawak as
Yang-Dipertuan Agong may determined;
(c) (repealed)
7
Case analysis Lee Kwan Woh V PP [1983] 1 CLJ Federal Court Judgement Lexis Nexis
8
being conducted, it was found that the substance inside the white plastic bag was 420 grams
of cannabis. The appellant had been convicted by the High Court in Ipoh of 420 grams of
cannabis trafficking, which is an offense under s. 39B(1)(a) of the Dangerous Drugs Act
1952, with a death penalty. He lodged an appeal to the Court of Appeal, which upheld the
ruling of the High Court. Therefore, the present appeal to the Federal Court. The first ground
was the decision of the trial judge whereby he did not want to hear any submissions in the
appellant’s defence because he was already satisfied that the prosecution had rendered a
prima facie case as needed by s. 180(1) Criminal Procedure Code. It was stated that under
Art. 5(1) of the Federal Constitution ('FC') the defendant had a constitutionally guaranteed
right to a fair procedure, and that the judge's decision had breached that right. The second
ground was that the judge had not interpreted the facts in a judicial way, thereby misdirecting
himself and causing a miscarriage of justice.
Legal Issues :
i. Whether there was a violation of the accused’s right to a fair trial which is in
Article 5(1) of the Federal Constitution
ii. Whether the trial judge had failed to judicially appreciate the evidence
Legal Provision :
The legal provision that had been used in this case was Section 39B(1)(a) of Dangerous
Drugs Act 1952, Article 5(1) of Federal Constitution and Section 180(1) of Criminal
Procedure Code.
i. Section 39B(1)(a) of Dangerous Drugs Act 1952 under trafficking in dangerous drugs
stated:
(1) No person shall, on his own or on behalf of any other person, whether or not such other
person is in Malaysia-
(a) traffic in a dangerous drug;
ii. Article 5(1) of Federal Constitution under liberty of the person stated:
(1) No person shall be deprived of his life or personal liberty save in accordance with law
iii. Section 180(1) of Criminal Procedure Code under procedure after conclusion of case for
prosecution stated:
(1) When the case for the prosecution is concluded, the Court shall consider whether the
prosecution has made out a prime facie case against the accused
Ratio Decidendi :
- Gopal Sri Ram FCJ stated in his judgment that the accused does have a constitutionally
guaranteed right to an unbiased tribunal to seek a fair hearing and a fair verdict on the
evidence. If any of these rights are infringed the accused is entitled to an acquittal. Whether
an unbiased tribunal has passed a fair trial or a fair judgment depends on the facts of each
case.
- The Constitution is a sui generis document regulated by its own interpretative
principles. At the midst of these is the idea that it should view its laws generously and
liberally. A literal construction should not be imposed on its language, in particular those
provisions which guarantee the protection of fundamental rights for individuals. It is the
court's responsibility to take a prismatic approach in defining the constitutional rights secured
by Part II of the Constitution.
DISCUSSION :
According to the case of LEE KWAN WOH V PP [2006] 5 CLJ 631, the court ruled that
the appeal was allowed, the conviction was quashed and the sentence set aside. Article 5(1)
provided that no person shall be deprived of his life or personal liberty save in accordance
with law. When Article 5(1) is read prismatically, other rights contain in the concepts of
“life” and “personal liberty”. In the focus for this discussion about the meaning of “life” in
this particular article, the particular court stated that “life” means more than mere animal
existence and includes such rights as livelihood and the quality of life. When this is applied to
a criminal case, the accused have the rights that is provided by the Constitution to obtain a
fair trial and just decision and the infringement of these rights leads to the acquittal of the
accused.
CONCLUSION
Among all the human rights provided by the Constitution, the rights to life and personal
liberty is one of the most crucial rights. This is due to the impact that it may give to the entire
system of freedom if we were to be deprived of it. Article 5(1) of the Federal Constitution
has provided this vital freedom to be enjoyed by each and every citizen. The word “life” in
this article should always be viewed prismatically and not just literally as it defends people’s
rights to live with dignity. 9 This idea of dignity is very wide that it covers from prisoner’s
rights to even necessities. Judges’ roles in interpreting this article during trials is very crucial
as it may affect the outcome of the case as we can see in Lee Kwan Woh v PP 10[2009] 5 CLJ
631 where the trial judge’s ruling of not allowing the accused to give submission has resulted
in violation of Article 5(1) of Federal Constitution to having a fair trial. In another case of
Tan Tek Seng V Suruhanjaya Perkhidmatan Pendidikan, the expression “law” which appears
in article to art 5(1) includes procedural law and substantive law which people who charged
with criminality have a right to be notified, to be heard and to defend themselves against the
charges, before, during and after criminal trials.
9
Nelfi, A. M. (2014) Article 5 Federal Constitution Malaysia - Liberty of a person. Retrieved from
https://www.slideshare.net/nelfiamiera/article-5-liberty-of-a-peson
10