The Book of Prof Shad.docx

Harun j was later overruled by the federal court this

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requirement of a prior enquiry must be read into the Restricted Residence Enactment.(Harun J was later overruled by the Federal Court). This natural law approach was also approved in Mat Shuhaimi bin Shafiei v Kerajaan [2014] 2 MLJ 145 (later overruled); Mohammad Hilman Idham v Kerajaan [2012] 1 MLRA 134; and Sivarasa Rasiah v Badan Peguam [2012] 6 MLRA 375. The term law’ does not refer to any enacted law. The enacted law must be (i) constitutional and (ii) reasonable. Positivist approach : The expansive, idealistic view of personal liberty has, however, found no general support in Malaysian courts. 17 The prevailing view is that Article 5(1) does not import the American concept of “substantive due process” which enables the courts to examine the reasonableness of legislative measures. In Comptroller General of Inland Revenue [1973] 1 MLJ 165, Nallakaruppan v Ketua Pengarah Penjara [1999] 1 MLJ 96 and Ooi Kean Thong, Siow Ai Wei [2006] 3 MLJ was observed that ‘save in accordance with law’ refer merely to enacted law and not to general concepts of law such 15 Ss. 23, 28, 103-105, 107-120 16 Maneka Gandhi v Union of India AIR 1978 SC 597 17 Despite this enlightened view of the concept of law, the Privy Council found that a law creating a presumption of trafficking against any possessor of drugs was not unconstitutional. 24
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as natural justice. Thus in Che Ani Itam [1984] 1 MLJ 113 and Lau Kee Hoo [1984] 1 MLJ 110 it was held that a mandatory life sentence is not inconsistent with Article 5(1). In Singapore in the case of Lim Meng Suang v AG [2014], s. 377A of the Penal Code on homosexuality was held to be constitutional. In PP v Yee Kim Seng [1983] 1 MLJ 252 the constitutionality of the Internal Security Act was upheld. In AG v Chiow Thiam Guan [1983] 1 MLJ 51 and PP v Lau Kee Hoo [1983] 1 MLJ 157 the legality of a death sentence was upheld. “Whether or not the death sentence is morally right or wrong is a matter not for the courts but for Parliament to decide”. In Ong Ah Chuan a statute creating a presumption of guilt in drug cases was held to be within the definition of ‘law’. In Haw Tua Tau v PP [1981] 2 MLJ 49 the abolition of the right of the accused to give unsworn testimony was held not to be unconstitutional. In PP v Haji Kassim [1971] 2 MLJ 115, it was held that the constitutionality of provisions of the Evidence Act relating to the admissibility of evidence cannot be challenged under Article 5(1). In Su Yu Min v Ketua Polis [2005] 6 MLJ 768 the court brushed aside the argument that Article 5 gave to the applicant the right to a prior hearing before an order of restricted residence. The court based its decision on the fact that the applicant was given an opportunity to make representations to the Minister within 14 days of his arrest. With all due respect, the hearing within 14 days is hardly a justification for denial of natural justice at the pre-decisional stage. Hearing where applicable, must be prior, not post- decisional.
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