federal constitution

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14.  Applicant averred that he was charged under
Section 41(5) of RTA before a Magistrate in Johor
Bahru on the 5.12.2002 and that the learned
Magistrate had ordered suspension of the
Applicant's driving license until the Court makes
a final decision on the charge.
 The Applicant further avers in paragraph 8 that
the provision of Section 41(5) of RTA contravenes
the Applicant's fundamental right as enshrined
under Article 8(1) of the Federal Constitution
namely, the right to be heard before the
suspension of license and the right to livelihood.
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15.  41(5) of RTA - Causing death by reckless or
dangerous driving.
 Held
 When a law is challenged as offending
fundamental liberties, it must show the
enactment or the exercise of the power under
it is arbitrary and unsupportable.
 On the issue of violation of Article 5(1) of the
Federal Constitution it is settled law that the
allegations on which the violation of a
constitutional provision is based must be
specific, dear and unambiguous and must
contain sufficient particulars.
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16.  Hence it is imperative that the Applicant's
affidavit must provide specific, clear and
unambiguous particulars and basis to
support the averment of unconstitutionality
of Section 41(5) RTA that violate of Article
5(1) of the Federal Constitution.
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17.  Wong Chiou Yong v. Pendaftar Besar/Ketua
Pengarah Jabatan Pendaftaran Negara, High Court
of Ipoh, 2005 (upholding a decision of the
National Registration Department refusing to
amend or change the birth certificate and
national registration identity card of the plaintiff,
a transgender man).
 However the Court observed that ultimately the
issue needed to be addressed by Parliament and
should be informed by expert medical evidence.
Until Parliament acted, however, the
determination was for the courts. In the cases
that followed Corbett, courts “had expressed
sympathy with the victim trapped in such
predicament and regretted they could not assist”.
In this case, stated the Court, when medical
evidence has established that the gender of the
plaintiff was other than the biological sex, it was
the duty of the Court to grant relief.
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23. recognized in law. 23

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26.  The courts are interpreting the word “life” in
Article 5 to include the right to livelihood.
Employment is, therefore, a fundamental
right within the expression of Article 5(1). In
Nor Anak Nyawai v Borneo Pulp [2001] 6 MLJ
241 it was held that native customary rights
can be considered as “right to livelihood”.
“Life” includes reputation and deprivation of
reputation would be a violation of Article 5(1)
as in Lembaga Tatatertib Perkhidmatan v Utra
Badi a/l K Perumal [2000] 3 MLJ 281. 26

27.  The plaintiff, a hospital attendant, was an employee
of the second defendant.
 A sample of urine taken from him was tested positive
for morphine.
 The first defendant requested the plaintiff to show
cause why disciplinary action should not be taken
against him on the ground that he was a drug addict.
 The charge was made under general order 26 of the
Public Officers (Conduct and Discipline) (Chapter D)
General Order 1980 which contained two alternative
punishments against him, namely to dismiss or to
reduce in rank.
 The plaintiff gave his explanation on the charge
extended against him. The first defendant dismissed
the plaintiff.
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28.  The plaintiff’s appeal to the Appeal Board was rejected. The
plaintiff applied for a declaration that his purported
dismissal was null and void.
 Gopal Sri Ram JCA held : Now, it cannot be refuted that any
sort of punishment imposed upon a public servant has
serious consequences. It carries with it a discredit. It
tarnishes reputation. The authorities are now well settled
that the punishment of dismissal deprives a person of his
livelihood and therefore of his 'life' within the meaning of
that expression in art. 5(1) of the Federal Constitution.
 Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan &
Anor[1996] 2 CLJ 771 followed.
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29.  Hong Leong Equipment v. Liew Fook Chuan &
Another Appeal [1997] 1 CLJ 665
 In this case the defendant had dismissed the
plaintiff from his employment and the court has
declared that the dismissal is null and void and
since the law is that employment is a
fundamental right within the expression of art.
5(1) of the Federal Constitution, it is imperative
that the function of the court is to ensure that
the plaintiff gets back his job and together with
his arrears of salaries and all other emoluments.
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30. Limb 1,right to be informed the grounds of
his arrest asap
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31.  Article 5 (3) ‘Where a person is arrested he
shall be informed as soon as may be of the
grounds of his arrest and shall be allowed to
consult and be defended by a legal
practitioner of his choice.’
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32.  Rights of an Arrested Person in Art 5(3) Article 5
(3) contains three distinct rights that are related
namely: 1. The right to be informed of the
grounds of one's arrest. 2. The right to consult
counsel. 3. The right to be defended by a legal
practitioner of one's choice.
 Exception to the Rights in Art 5(3) Exception to
the three rights stated in Article 5 (3) is
mentioned in 5 (5). ‘ Clauses (3) and (4) do not
apply to an enemy alien.’
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33.  5(3): The right to be informed of the grounds
of arrest The arrested person may be
informed orally of the grounds of his arrest.
Re P.E. Long @ Jimmy [1976] 2 MLJ 133
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34.  5(3): The right to be informed ‘Where a
person is arrested he shall be informed as
soon as may be of the grounds of his arrest.
Abdul Rahman v Tan Jo Koh [1968] 1 MLJ 205
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35.  This was an appeal on a claim for damages for assault
and false imprisonment brought by the appellant, a
carpenter, against the respondent police constable.
 According to the respondent he met the appellant in the
course of his rounds at a coffee shop. From the
appellant’s behaviour the respondent suspected the
appellant of carrying a concealed weapon upon his
person and the respondent asked the appellant whether
he carried any. The appellant denying possession of any
weapon.
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36.  The appellant refused to go to the police
station immediately and thereupon the
respondent arrested the appellant.
 He was searched in the presence of two
police constables who witnessed the recovery
of a knife from the fold of his sarong.
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37.  Held
 the appellant’s great reluctance to go to the
police station with the respondent was due to the
fear of what the respondent had told the
appellant in the coffee shop regarding what the
respondent suspected the appellant was carrying.
There was no reason to disagree with this
conclusion. The appeal should therefore be
dismissed with costs. Christie v Leachinsky
[1947] AC 573 .
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38.  Police officers appealed against a finding of false
imprisonment. The plaintiff had been arrested
under the 1921 Act, but this provided no power
of arrest .The officers might lawfully have
arrested the plaintiff for the offense of stealing a
bundle of cloth, which they had reasonable
grounds for suspecting.
 Held: Police officers must at common law give a
detained person a reason for his arrest at or
within a reasonable time of the arrest.
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39.  If the police fail to inform him, the arrest will
be held to be unlawful.
 The person arrested cannot complain that he
has not been supplied with the above
information as and when he should be, if he
himself produces the situation which makes it
practically impossible to inform him, e.g., by
immediate counter-attack or by running
away.
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40.  In Lee Gee Lam v Timbalan Menteri Hal Ehwal
Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265,
the order of detention stated few grounds on
which the supposed detainee was apprehended
with the word ‘or’ and not ‘and’ in between. The
court held that the statement in regards of the
grounds in the alternative form denied the
detainee the right to know the reason for his
arrest, a constitutional right, for the record.
Which type of offence has appellant committed –
not clear. The decision of the court was in line
with the Article 5(3) of the Constitution.
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41.  5(3): The right to be informed Aminah v
Superintendent of Prison, Pengkalan Chepa,
Kelantan [1968] 1 MLJ 92 " ...the words 'as
soon as may be' … means as nearly as is
reasonable in the circumstances of the
particular case"
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45.  . 5(3): The Right To Consult Counsel ‘ Where a person is
arrested he shall… as soon as may be … allowed to
consult … a legal practitioner of his choice.’
 5(3): The Right To Consult Counsel CRIMINAL PROCEDURE
CODE Section 28A (2) (b) A police officer shall before
commencing any form of questioning or recording of any
statement from the person arrested, inform the person
that he may communicate or attempt to communicate and
consult with a legal practitioner of his choice.
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46.  Ramli bin Salleh [1973] 1 MLJ 54 Syed Agil
Barakbah J.:
 (1) The right of counsel begins right from the
day of his arrest even though police
investigation has not yet been completed.
 (2) The right should be subject to certain
legitimate restrictions which necessarily arise
in the course of police investigation, the main
object being to ensure a proper and speedy
trial in the Court of law.
 (3) Such restrictions may relate to time and
convenience of both the police and the
person seeking the interview and should not
be subject to any abuse by either party.
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47.  Article 5(3) requires that “where a person is
arrested he shall be … allowed to consult and be
defended by a legal practitioner of his choice”.
 Judicial enforcement of this right has not always
been consistent. In a string of cases like Ooi Ah
Phua (1975) and Hashim Saud (1977), the courts
have held that consultation with a lawyer in a
police lock-up can be postponed for a
reasonable period to facilitate police
investigations
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48.  However, in Theresa Lim Chin Chin (1988), it
was held that in order to show breach of
Article 5(3), the detainee must show that the
police have, with bad faith, obstructed a
detainee from exercising his right.
 The officer is required to give the arrestee
“reasonable time” for the consultation to take
place.
 In Ramli Salleh (1973), Syed Agil Barakbah
ruled that “in order to render such interview
effective it should be held not within the
hearing of any member of the police for,
under the law, communication between the
solicitor and client is privileged. It should,
however, be within the sight of the police”.
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49.  It was believed that preventive detention laws,
enacted under Article 149 (dealing with
subversion) or Article 150 (dealing with
emergency), automatically exclude the Article
5(3) procedural safeguard of right to see a
lawyer.
 However, in a number of worthy decisions
including Abdul Ghani Haroon (2001), the courts
held that the guarantees of Article 5(3) apply
even in ISA detention cases.
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50.  Muhamad Abdullah v PP [1982] 2 MLJ 201
 If an accused person is not represented by
lawyer it does not invalidate the proceeding.
It does not meant judicial proceeding cannot
be committed.
 The right is limited and can be exercised so
long it is subject to greater right of the
community to have peace and tranquility of
the society.
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51.  Article 5(4) Where a person is arrested and not
released he shall without unreasonable delay, and in
any case within twenty-four hours (excluding the
time of any necessary journey) be produced before a
magistrate and shall not be further detained in
custody without the magistrate's authority.
 In the case of an arrest for an offence which is triable
by a Syariah court, references in this Clause to a
magistrate shall be construed as including references
to a judge of a Syariah court.
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52.  Rights of an Arrested Person Art 5(4) Clause (4) of
article 5
 -requires the detaining authority to produce the
arrested person before a magistrate, or as the case
may be a shariah court judge, without unreasonable
delay within 24 hours of his arrest, and –
 prohibits further detention of the accused without the
magistrate’s / shariah court judge’s authority.
 Exception to the Rights in Art 5(3) and Art 5(4) -
rights not available to detainee under RRE, aliens,
immigration law
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53.  In Abd Ghani Haroon v KPN (2001) 2 CLJ 709,
the cardinal principle is that every detention
is prima facie unlawful and the burden of
proof is on the detaining authority to justify
the detention.
 Ooi Ah Pua was detained as there was
reasonable suspicion that he is involved in
arm robbery. He applied for Habeas Corpus in
magistrate court but was rejected because his
detention was lawful
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54.  Art 5(2) appears to be putting the burden of
prove on the detention detaining autho.
 However Sufian FJ held in Karam Singh that such
a burden can simply be discharge by producing
the order of detention as long as done in good
faith.
 But Hishamuddin J in Abd Ghani Haroon v KPN
(2001) 2 CLJ 709 that the law affecting
fundamental right should not be enforce blindly.
It must be interpreted as humanely as possible.
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55.  On the Police's denial of visits by families or legal
counsel:
 `Not allowing access to one another is cruel, inhuman
and oppressive, not only to the detainees but also to their
family members.
 What harm would the visits of the family members bring?
 The visits can be closely monitored.
 This court does not understand such reasoning.
 It is violation of the detainees' constitutional rights. It is
unlawful to deny them (their rights).'
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56.  On habeas corpus:
 There were no affidavits filed by applicants
because for 40 days they were denied access to
their lawyers.
 If applicants truly believe that they were framed
and their detention was unjust, it is their right to
file habeas corpus as guaranteed under Section
5(2) (of the Constitution
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57.  It is refreshing to see such statement but in
Uthayakumar Ponusamy his Habeas corpus
was rejected even though he was denied
proper medication.
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58.  Habeas corpus can be granted in various
circumstances
 1. Thamilvenen a/l Kandasamy
 - there was technical deficiencies –
 gap between the dates of detention order and
its commencement
 2. Kok Wah Kuan
 – applicant guilty and convicted under 302
Penal Code –
 hg crt in dismissing the HC affirmed long
standing prin that HC cannot be granted to a
person serving a lawful sentence.
 HC is not an appeal vs sentence but a release
vs unlawful arrest.
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59.  Federal court in Sejahratul Dursina
 – held that HC was only available to who is
being detained unlawfully but not available to
person detained under Restricted Residence
Enactmant (Tahanan Keselamatan)
 The scope of habeas corpus - is only
available for those who are wrongfully
detained and not to those lawfully detained.
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