Constitutional Law IIPrepared by:Nur Afiqah Norman 1070856Nursyuhada Matwi 1070852Ma Kalthum Ishak 1070850Instructor- Mdm. Intan Nadia Ghulam Khan
Question 2‘there have been occasions where detainees have not beenconferred the basic fundamental right that are contained within theframework of the constitution which include the non-conferment ofthe fundamental right to be informed of ground of arrest and theright to be produced promptly before the Magistrate. This appearsto be either because of legal provisions which specifically oust suchright or the different interpretation of the law or as a result of theoccasional imperfect implementation of the law by the detainingauthorities.’HUMAN RIGHTS COMMISSION OF MALAYSIA,REVIEW OF THEINTERNAL SECURITY ACT, SUHAKAMExplain the above quatation by referring to relevant legal andconstitutional provision
What is SUHAKAM????• Human Rights Commission of Malaysia(Malay: Suruhanjaya Hak AsasiMalaysia)• Suhakam is a human rights watchdog inMalaysia• It was established by theMalaysian Parliament using the HumanRights Commission of Malaysia Act1999, Act 597
Do we have freedom of liberty?Art 5(1)- no person shall be deprived ofhis life or personal liberty except inaccordance with lawArt 5(3)- informed the ground of arrest- to have legal representationArt 5(4)- within 24 hours of his arrest,he shall be produced before theMagistrate
Subversion???Definition - subversion: (among others,) prejudicing the maintenance ofany supply or service to the public order or national security.Purpose - empowers Parliament to create laws to combat subversion.Extent - will be valid, even if they violate certain fundmantalliberties/rights that is also under the FC. Duration - Previously, 1 year.Now, indefinitely.Exercise - The government.Procedure - When approving the creation of a law such as ISA forexample, only a simple majority in Parliament is required to vote for it.51%, and not two thirds majority. Neither the King, nor the Conferenceof Rulers (the Club of Sultans of various states), need to be consulted
Continue…Generally, subversion is defined in paragraph (a) to (f) ofArticle 149 the Federal Constitution. The matter dealt with bythe provision as it also includes various threats such as;organized violence;the excitement of disaffection against the Yang di PertuanAgong(YDPA) and the government;the promotion of ill-will and hostility between races;alteration of anything legal through unlawful means;prejudicing the maintenance or functioning of supply orservice; andprejudicing public order and security.In the case of Theresa Lim Chin Chin v Inspector-General of Police,there is nothing in law to suggest that subversion is confined to thecommunist threat.
What make A149 of Federal Constitution so special?A law under Article 149 can only be made by parliamentwhich means that can only be passed after a debate.The legislative power under Article 149 is availableirrespective of whether there is an emergency or not.Any provision of the law under A149 designed to stop orprevent that action is valid, regardless of inconsistency withany of the provisions of Article 5, 9, 10, 13.(e.g.: Internal Security Act 1960 (ISA 1960), Dangerous Drug(Special Preventive Measure) Act 1985).Action taken under Article 149 must be bone fide for thepurpose of stopping or preventing subversion.
Continue…Laws enacted to combat subversion have no time limits and donot cease to operate even if the threat ceases to exist.Article 149 powers are independent of Article 150(Teh Cheng Poh, Privy Council noted that Article 149 is quiteindependent of the existence of a state of emergency; indeed itis not even a requirement that such action should be continuingat the time the Act of Parliament is passed; all that is required isthe recital referred to in Clause (1); and the power includespower to make laws providing not only for suppressingsubversion but also for preventing its recurrence).
Continue…Violation of rights must be explicitly authorizedLee Mau Seng v Minister for Home Affairs, the guaranteesof Article 5, 9, 10, 13 continue to apply unless explicitlyexcluded by the anti subversion law.Abdul Ghani Haroon v Ketua Polis, nothing in the ISAexplicitly excludes a detainee’s right in Article 5 (3) toconsult & be defended by a legal practitioner of his choice.Legislation under Article 149 and Article 150 must notviolate the safeguards to preventive detainees entrenchedin A151.
Do the court has the jurisdiction to reviewarticle 149?Malaysia apply subjective test andprocedural review’s approach.Subjective test- other person cannotevaluate or question the decision.Procedural review- referred to theprocedure of the case.Case: Karam Singh v Menteri HalEhwal Dalam Negeri Malaysia
Karam Singh’s caseHeld: The burden of proof is on the detainee toshow that the detention is illegal. Thedetention is not illegal just because theallegation of fact is insufficient.In fact, although the detainers has to prove thelegality of the detention, but they simplywould be able to discharge that by simplyproducing the order of the detention withgood faith and it is sufficient.
Continue….The truth is, it is hard to prove the badfaith or mala fide on the part of thegovernment when they detainedsomeone.Other case: Theresa Lim Chin Chin &ors v Inspector General of Office
ISA????Is derived from article 149arbitrary powers to detain without trialavailable to the Executive.Depends on the discretion of thedetaining authority.ISA is contrary to fundamentalprinciples including the right to liberty ofthe person.
Continue…The ISA has been used to suppresspeaceful political, academic and socialactivities, and legitimate constructivecriticism by NGOs and other socialpressure groups.Although the legality of the ISA hadbeen challenged in the court, but thecourt agreed that the law is valid byvirtue of article 149.
continue…Court cannot review the ministerialdiscretion.Except:Male fide of the minister.Procedural requirement in ISA.Case: PP v MusaNoor Ashid bin Sakib v KetuaPolis Negara.
PP v MusaA minister order a person to berestricted.Subsequent to that restriction, thatperson had been detained.The minister could extend the detentionperiod up to 2 years and don’t have tomake a fresh detention order.
Noor Ashid bin Sakib v Ketua PolisNegara.The court’s jurisdiction to review onlywith regard to the question relating tothe procedural requirement in the ISA.
Legitimacy of the minister’s order.The minister’s order is illegitimate if itfall on the ground of mala fide of thedetaining authority.Karpal Singh v Menterithis case had made an outstandingcontribution on the question of mala fideor bad faith on the part of thegovernment.
Continue….Held: mala fide does not mean at allmalicious intention. It normally meansthat a power is exercised for a collateralor ulterior purpose or for a purposeother than for which it is professed tohave been exercised.Other case? Tan Sri Khalid Raja Harun
Conclusion…We do have our fundamental right.But we must not exceed the limit.We must not take advantage on thefreedom that had been given to us.It is because, there is legal provisionthat will oust such right.
“thank for lending your ears”Do your best, let Allah dothe restGood luck for your finalexamination