Constitutional Law (LAW437)
Habeas Corpus is a remedy to secure personal liberty in Malaysia. Discuss with reference to some decided cases. 1.1
The main provision of the Constitution which is relevant is Art. 5(1):”No person shall be deprived of his life or personal liberty save in accordance with law.” This most fundamental of all fundamental-rights provisions is given to all persons, not just citizens.
Art. 5 goes on to provide for the right to habeas corpus1, the right of arrested persons to be informed of the grounds of their arrest and to legal representation2, and to be produced before a Magistrate within 24 hours of arrest.3
Art. 5 is, however, like the other fundamental-rights provisions, curtailed in its practical operation by emergency powers and powers against subversion under Arts. 150 and 149, where this power include the power, whether during an emergency or during peace-time, to enact legislation which overrides fundamental rights. For this reason legislation such as Internal Security Act 1960 is constitutionally valid, even though it gives power to the Government to detain persons without trial.
However, it is clear from case law Art. 5 rights will be read into, or implied into, statutes, and this principle has been applied even to preventive-detention laws passed under Arts. 149 and 150, with the result that persons detained under such security legislation, as well as persons arrested under the ordinary criminal law, enjoy many of the rights contained in Art. 5.4 The difference is that legislation may be inconsistent with Art.5 and yet remain constitutionally valid. The law relating to preventive detention is of such importance for personal liberty in Malaysia that it is dealt with separately below. The phrase “save in accordance with law” in Art.5(1) is puzzling and has led to some difficulty of interpretation. Provisions of this kind are not uncommon in constitutional law and give rise to two kinds of interpretation. First, “law” could mean any statute passed by Parliament, so that no statute can be contrary to Art.5(1); on this view Art.5(1) merely states a general principle which is unpacked, or given content, in the remainder of Art.5, and any deprivation of life or personal liberty, however arbitrary, is required by Art.5(1) only to satisfy such statutory requirements or principles of common law as are applicable. Second, “law” could mean a higher standard than mere statute law, other words the fundamental requirements of due process or natural justice; on this view a law could be struck down under Art.5(1) as not complying with those requirements. The Privy Council, interpreting Art.9(1) of the Constitution Singapore, which is none other than the Malaysian Art.5(1) continued in force in Singapore after the separation, has held in two 1981 cases that “law” in contexts such as those mentioned above means:- ‘a system of law which incorporates those fundamental rules of natural justice that had formed part of the common law of England and was in operation in Singapore at the commencement of the constitution. It would have been taken for granted by makers of the Constitution that the “law” to which citizens could have recourse for the protection of fundamental liberties assured to them by the constitution would be a system of law that did not flout those fundamental rules. In Che Ani Bin Itam v Public Prosecutor the constitutionality of the mandatory life sentence under the Firearms (Increased Penalties) Act 1971 section 4 was challenged as violating Art.5(1). Raja Azlan Shah LP, delivering the judgment of the Federal Court, referred to the principle laid down by the Privy Council as ‘now firmly established’ even though it ran counter to previous Malaysian Authority. It is to be hoped that this will continue to be the view of the Malaysian Judiciary, otherwise Art.5(1) already in adequate to protect personal liberty, would become mere verbiage. The...
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