Constitution Case Summary
Constitution Case Summary
Constitution Case Summary
Issues
Whether the Constitution gives a right to be defended by Counsel in this case?
Facts
This was a case under the Restricted Residence Enactment to be allowed representation
by counsel. Witnesses were called at an inquiry to be held under that Enactment. The
respondent in exercise of the powers in section 2(i) of the Enactment had issued a warrant
for the arrest and detention of the applicant, and he deemed a further inquiry to be
necessary. The form of the further inquiry was one to be held in camera without the
person concerned being represented by counsel.
Held
The court held that such the fundamental liberty envisaged under the Constitution
was intended to be merely declaratory of existing laws and not mandatory right. A right
to be defended by counsel presupposes a right to be heard. The respondent was under no
obligation to hold an inquiry, therefore the applicant had no right to be heard, and he
could not have the right to be defended by counsel;
In this case, as the fundamental liberty under the Constitution Article 5 was
intended to be merely declaratory of existing law. Article 5(4) of the Constitution is
intended to apply to arrests under the Criminal Procedure Code and not to arrests under
the Restricted Residence Enactment. Similarly, clause (3) of Article 5 of the Constitution
does not apply to cases under the Restricted Residence Enactment.
Facts
The plaintiff, who was an Inspector in the Royal Federation of Malaya Police Force, first
appointed on probation in 1951 and permanently appointed to the rank of Inspector on
June 1, 1953. He was dismissed by the Commissioner of Police On July 7, 1958. Having
exhausted his departmental rights of appeal, he commenced these proceedings on October
1, 1959. He asked for a declaration and other consequential reliefs stating that his
purported dismissal on July 7, 1958 was void and inoperative and of no effect and that he
was still a member of the said Police Force as it was effected without him being given a
reasonable opportunity of being heard (at the board of inquiry held by the Police Force)
and that this was Contrary to art. 135(2) of the Constitution and natural justice.
Held
The court held that in art. 144(1), the words "subject to the provisions of any
existing law" meant only that the Police Service Commission shall operate pursuant to
existing laws which are not in conflict with the Constitution. In case of conflict between
existing law and the Constitution the latter must prevail and as such it is necessary for the
Court to modify the existing law under the authority of art. 162. The Police Service
Commission was the authority to appoint an officer of appellant's rank; therefore under
art. 135(1) it was the authority to dismiss him. The Commissioner of Police was without
such authority. The right to be heard carries with the right of the accused to know the case
made against him and he must be given a fair opportunity to correct or contradict them.
The dismissal was void.
Federal
Constitution. The court may apply the pre-Merdeka law with such modifications, which
term includes amendment, adaptation and repeal as may be necessary to bring the
provision of the pre-Merdeka law into accord with the Federal Constitution.
Furthermore, the court also held that since the Criminal Procedure Code is a preMerdeka law, Article 4 does not come into operation to strike down a law as being void
upon the ground of being inconsistent with the Federal Constitution. The applicable
provision is Article 162(6) of Federal Constitution which requires the court to make
modifications to the law to make it accord with the Federal Constitution. Thus, Section
133 to 136 of the Criminal Procedure Code cannot be declared to be null and void.
Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289
Issues
1. Whether the Aborigines Peoples Act 1954 as pre-Merdeka legislation must be
interpreted in a modified way to fit in with Federal Constitution?
2. Whether acquisition of aboriginal lands must be adequately compensated
according to Land Acquisition Act 1960 ?
Fact
In this case, the court was dealing with the nature of customary title and the plaintiffs had
been occupying the lands for at least 210 years until the state government acquired them.
The plaintiffs were aboriginal peoples of the Temuan tribe, who by their customand
tradition, were settled peoples, in Bukit Tampoi (the land). The first defendant was the
State Government of Selangor. The second defendant was a public limited company in
the business of road construction. The third defendant was the Malaysian Highway
Authority. Part of the land settled upon by the plaintiffs was gazetted as Aboriginal land
under the Aborigines Peoples Act 1954 (the 1954 Act). A large strip across all this land
was excised for the purpose of an expressway which the second defendant was to
construct. The first defendant acquired the land and the defendants evicted the plaintiffs
from the land. The High Court granted the plaintiffs compensation under the Land
Acquisition Act 1960 (the 1960 Act) for loss of part of land which the judge found to
have been held under customary title. The defendants appealed.
Held
As regards to the Section 12 of Aborigines Peoples Act 1954 , it is a pre-Merdeka
provision. Therefore, the court held that it must be interpreted in a modified way so that it
fits in with the Federal Constitution. The way in which Section 12 of Aborigines Peoples
Act 1954 is to be brought into conformity with the Constitution is to make it yield to
Article 13(2) of the Federal Constitution. That is achieved by not reading the words the
State Authority may grant compensation therefor as conferring a discretion on the State
Authority whether to grant compensation or not. For otherwise it would render Section 12
of the Aborigines Peoples Act 1954 violative of Article 13(2) of Federal Constitution and
void because it will be a law that provides for the compulsory acquisition of property
without adequate compensation.. Therefore, the relevant the words (State Authority)
may (grant compensation) in Section 12 of Aborigines Peoples Act 1954 should be read
as shall and by introducing adequate before compensation,the modification is
complete .
Furthermore, the court held that adequate compensation should be done on the
basis of the Land Acquisition Act 1960 because the Land Acquisition Act 1960 by
definition applies to the plaintiffs case. The learned judge by adopting a liberal
interpretation was merely giving full effect to Article 8(5)(c) of the Federal Constitution
which sanctions positive discrimination in favour of the aborigines .
Public Prosecutor v Datuk Harun Idris [1976] 2 MLJ 116,[1977] 1 MLJ 180
Issues
Whether Section 418 A of Criminal Procedure Code is unconstitutional and void?
Facts
The case was transferred from Session Court to High court on the certificates issue by
Public Prosecutor under the provisions of Section 418 A of Criminal Procedure
Code.Counsel of accused contented that the provisions violated the Article 8 (1) of
Federal Constitution and was therefore void and unconstitutional.
Held
In this case Section 418 A of Criminal Procedure Code conferred discretionary power
on the authority without laying down the any policy or disclosing any tangible or
intelligible purpose and thus conferred unguided and arbitrary powers enabling the
authority to discriminate which violated the Article 8 of Federal Constitution.While the
public prosecutor cannot in exercising his discretionary power discriminate at will and
infringe the provisions of Article 8 of Federal Constitution.
In this case the accused have been prejudiced as if they are tried in High Court,the
punishment will be greater than in Session Court.Thus Section 418 A of Criminal
Procedure Code as it is worded and as it stands is therefore unconstitutional and void by
the virtue of provisions of Article 8 of Federal Constitution and equally so the certificates
issued by the public prosecutor for the transfer of the case is accordingly no effect.
Issues
1. Whether there are discrimination about the disqualification of the lawyers who are
members of Parliament or any of the State Legislatures or local authorities or hold
office in any trade union or political party or organizations of a political nature?
2. Whether there are discrimination against junior lawyer in the management of bar?
3. Whether the question of freedom of association arise when prevent a lawyer from
being member of the Bar?
Facts
The fact of the case was about the declaration sought by plaintiff in the originating
summons:
a) That section 46(1)(a) of the Legal Profession Act, 1976 as introduced by the Legal
Profession (Amendment) Act, 1978, is ultra vires Article (1) of the Federal Constitution
guaranteeing equality before the law and equal protection of the law and therefore void
under Article 4(1) of the Federal Constitution.
b) That section 46A(1)(a) of the Legal Profession Act, 1976 as introduced by the Legal
Profession (Amendment) Act, 1978 is ultra vires Article 10(1)(c) of the Federal
Constitution guaranteeing freedom of association and therefore void under Article 4(1) of
the Federal Constitution.
Held
The court held that it is common ground that a law is bad if it is discriminating,
unreasonable and if there is no nexus between the law and the objects of the amending
act. For the first issue, one of the objects of section 46A of the Legal Profession Act 1976
is clearly stated that the affairs of the Bar be managed by members of the Legal
Profession who are not only professionally independent but appear to the outside world.
Hence the provision that lawyers who are members of Parliament or any of the State
Legislatures or local authorities or hold office in any trade union or political party or
organizations of a political nature are disqualified from holding office in the Bar Council
or Committees. The provisions (Section 46A(1)(b) and (c) in Legal Profession Act 1976)
apply to all lawyers and are therefore not discriminatory. For the second issue, the court
says that it also seems to be the object of section 46A of the Legal Profession Act 1976,
to ensure that the management of the Bar is in the hands of senior members of the
profession. The powers and functions of the Bar Council and State Bar Committees as
provided by the Act must clearly be exercised by senior members of the profession and
the disqualification from membership of these bodies by junior members is not
unreasonable. Moreover, in so far however as section 46A(1) applies to any Committee
of the Bar Council or a Bar Committee the provision has gone more than a little too far
and is unreasonable. The words "or of any committee of the Bar Council or a Bar
Committee" appearing in the section in so far as it affects paragraph (a) thereof is ultra
vires Article 8(1) and is therefore void under Article 4(1) of the Federal Constitution but
the remaining provisions are not ultra vires or void under the Federal Constitution.For the
last issue, nowhere in section 46A is there a provision to prevent a lawyer from being a
member of the Bar. The question of freedom of association therefore does not arise.
Section 46A(1)(a) of the Legal Profession Act, 1976, is not ultra vires Article 10(1)(c)
and therefore not void under Article 4(1) of the Federal Constitution.
1. Whether there are discrimination from s1(2) of the Pensions Adjustment Act 1980
against foreign-resident pensioner?
2. Whether the permissible discrimination violates the equality provision of Article
8?
Facts
The fact of the case was the respondent, Mr VR Menon is an Indian citizen residing in
Madras, India. He is a pensioner receiving pension from the Malaysian government and
he is aggrieved by the residential qualification imposed by s 1(2) which excludes him and
his dependants from the additional benefits conferred by the Act. He brought an action
against the government of Malaysia seeking a declaration that he be paid his pension in
accordance with the Act as any other resident pensioners in Malaysia and for other
consequential reliefs.
Held
The court dismissed the appeal of respondent and held that there can be no doubt
that s 1(2) of the Pensions Adjustment Act 1980 is discriminatory against foreign-resident
pensioners, but the classification between foreign and local resident-pensioners is
founded on an intelligible differentia. The intelligible differentia has a rational nexus with
the object to be achieved by the 1980 Act which is to ameliorate the financial position of
pensioners in Malaysia due to the depreciating value of the ringgit and the rise in the cost
of living in Malaysia. Besides, the residential qualification imposed by the Act constitutes
a permissible discrimination and therefore does not violate the equality provision of art
8(1) and as such it is not null and void under art 4(1) of the Federal Constitution.
Mamat Bin Daud & Others Vs. Government Of Malaysia (1988) 1 MLJ 119
Issue
Whether the said section which was enacted by the Parliament in ultra vires Article 74(1)
of the Federal Constitution, since religious matters are reserved for the state legislatures
and therefore beyond the legislative competency of Parliament?
Facts
The petitioners were charged for an offence under section 298A of the penal code for
doing an act which is likely to prejudice unity among persons professing the Islamic
religion. They were alleged to have acted as an unauthorized Bilal, Khatib and Imam at a
Friday prayer in Kuala Terengganu without being appointed under the terengganu
Administration of Islamic Law Enactment, 155.
The respondent contended that the Section was valid because it is a law passed by
Parliament on the basis of Public Order, internal security and also criminal law according
to Article 11 clause (5) and items (4) of List 1 of the Ninth Schedule of the Federal
Constitution.
Held
Section 298A of the penal code is a colourable legislation in that it pretends to be a
legislation on the public order, when in pith and substance it is a law on the subject of
religion with respect to which only the states have power to legislate under Articles 74
and 77 of the Federal Constitution.
Thus, there must be a declaration that Section 298A of the Penal Code is a law with
respect to which Parliament has no power to make law and a declaration that section
298A of the Penal Code is invalid and therefore null and void and of no effect.
Nordin Bin Salleh v Dewan Undangan Negeri Kelantan [1993] 3 MLJ 344
Issues
Whether plaintiff had the right to sue Sultan of Pahang in his personal capacity in Special
Court
Facts
The plaintiff, who was a Singaporean, sued the Sultan of Pahang in his personal capacity
for alleged libel and for damages in the Special Court established under Article 182 of the
Federal Constitution. Both parties agreed that the court should first determine a
preliminary issue raised by the defendant.
Held
The court dismissed the plaintiff claim as it is in the nature of a libel suit and held
that Article 74(3) of the Federal Constitution provides that the powers of the Parliament
is restricted and was subject to any conditions imposed with respect to any particular
matter by the Constitution. In this case, Parliaments legislative power was subject to the
special provision of Article 155 of the Constitution.
As under Singapore Constitution, a Malaysia citizen could not sue the president of
the republic in any Singapore courts. Thus, even if Parliament were to confer the right on
a Singapore citizen to sue a Ruler, such conferment was illegal and ultra vires Article 155
of the Federal Constitution.
Article 182(2) of the Federal Constitution did not entitle the plaintiff, a Singapore
citizen, to sue ruler in the latters personal capacity.
Article 155 rendered Article 182(3) void to the extent that it purported to allow a
non-citizen to sue a Ruler in the Special Court. If Singapore were to amend its
Constitution to allow a Malaysian to sue the President on Singapore, the Malaysian
Parliament might confer a Singaporean a similar right or privilege to sue a Ruler in
Malaysia.
Danaharta Urus Sdn Bhd V Kekatong Sdn Bhd [2004] 4 MLJ 2009
Issues
1. Whether a registered proprietor can caveat its own land ?
2. Whether defendant can succeed in its claim under 85 Suit ?
Held
Although the 85 Suit concerned the said lands, the caveats were never an issue raised
therein. It is only when the caveats are specifically raised or made an issue then under O
32d of the Rules of the High Court 1980, it would be more appropriate to proceed by way
of summons in chamber. Federal Court discharged the injunction granted by the Court of
Appeal must be viewed as having accepted a ruling that there was no serious question to
be tried and that the Court of Appeal's ruling of there being one was erroneous. Moreover,
there were other factors not considered by the Court of Appeal which now appear in the
instant application in deciding whether there was a serious question to be tried. The
plaintiff fell within the category of an aggrieved party under s 327 of the National Land
Code since the presence of the caveats had wrongfully affected the plaintiff's title to the
said lands and the plaintiff would suffer loss as the lands with caveat were less attractive
in the property market. The registered owner of land could not enter caveat on its own
land and defendant could not bring a claim of limitation against the plaintiff based on the
circumstances of the case because limitation was merely a defence to an action and could
not be a cause of action.
Public Prosecutor v Koh Wan Kuan [2007] 5 MLJ 174 ; [2008] 1 MLJ 1
Issues
3. Whether doctrine of separation of powers is definite and absolute?
cause the courts to become servile agents of a Federal Act of Parliament and to only
perform mechanically any command or bidding of a federal law.
The fact of the case was a complaint was made against the respondent in relation to
offences under s 43(2) of the Employment Provident Fund Act 1991 ('the Act'), failure
by an employer to pay monthly EPF contributions in respect of or on behalf of an
employee. Pursuant to the complaint, a summons was issued by the magistrate and three
charges were preferred against the respondent. The respondent claimed trial to the
charges.
Thereafter, four additional charges were preferred against the respondent and the
respondent also claimed trial to these additional charges. An EPF officer conducted the
prosecution of the case with a letter of authorization issued by the deputy public
prosecutor pursuant to s 373 of the Criminal Procedure Code ('CPC'). Section 373 of the
CPC came into force on 1 April 1998. All the charges related to offences alleged to have
been committed before 1 April 1998. At the close of the respondent's case, a preliminary
objection was raised that the prosecution of the case was ultra vires art 145(3) of
the Federal Constitution and was null and void on the grounds that officers of the EPF do
not have the authority to institute and conduct the proceedings. The magistrate held that
the institution of the proceedings against the respondent for offences under the Act and
the conduct of the prosecution was invalid and struck off the proceedings. The appellant
appealed to the High Court. The High Court upheld the decision of the magistrate and
dismissed the appeal. The appellant appealed to the Court of Appeal.
Held
The court dismissed the appeal. The prosecution's authority to institute and conduct
the proceedings against the respondent in the magistrates court in the instant appeal were
governed by s 380(ii)(b) of the CPC prior to its amendment by Act A1015 and s 68of the
Act prior to its deletion by Act A1080. The two provisions were ultra vires or inconsistent
with art 145(3) of the Federal Constitution and hence by virtue of art 4(1) of the Federal
Constitution were void to the extent of their inconsistency. Therefore, the proceedings
instituted and conducted by the EPF in the magistrate court was null and void.