The Book of Prof Shad.docx

The concept of personal liberty does not extend to a

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The concept of personal liberty does not extend to a speedy and expeditious trial. Nor does it permit kissing or hugging in a public park: Ooi Kean Thong, Siow Ai Wei v Pendakwa Raya [2006] 3 MLJ 389. MEANING OF ‘IN ACCORDANCE WITH LAW’ The language of Article 5(1) implies that the functionaries of the state have no inherent power to deprive any person of his life or liberty or to interfere with a person except in accordance with a known law. Freedom is inherent. It is power that needs legal justification. Any arrest of a person or any order to him to stop and submit himself to a breathlyser test or to a search or to a questioning or to a hair cut or to an order to show up at the police station must be derived from a valid law. In Andrew s/o Thamboosamy v Supt of Pudu Prisons [1976] 2 MLJ 156 Suffian LP said: “any form of detention does violence to (Article) 5(1) of the Constitution … and hence power given by the law to detain must be construed strictly and in cases of doubt or ambiguity the court should lean in favour of the subject”. Of course, a plethora of laws like the Penal Code, Police Act, 14 Criminal Procedure Code, 15 Arms Act and Road Transport Act empower law enforcement agencies to interfere with personal liberty. 14 Ss. 3(3), 20(3) 23
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Substantive or procedural law? In earlier years there was an issue whether the words ‘in accordance with law’ refer merely to substantive law (the law relating to rights, powers and duties) or whether the words also encompass procedural law? In Karam Singh v Minister [1969] 2 MLJ 129, an arrest under a valid preventive detention law was challenged on the ground that the procedural requirements of Article 5(3) were not complied with. The Federal Court brushed aside the arguments with the words that “the errors, if any, were of form, not of substance”. Fortunately, a torrent of cases beginning with PP v Koh Yoke Koon [1988] 2 MLJ 301 and culminating in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidkan [1996] 1 MLJ 261 have affirmed that ‘law’ in Article 5(1) refers to both substantive and procedural law so that a detention in violation of procedures will be a nullity. Lex or jus? Does the word ‘law’ in Article 5(1) refer to ` lex ’ (i.e. a valid law no matter how unjust) or to jus and recht (i.e. a law that is just and right)? This issue is relevant in determining whether the protection of Article 5 works only against executive arbitrariness or whether it also applies against oppressive laws by the legislature? Natural law approach : In India the courts have held that where there is a procedure established at law, that procedure, to be constitutionally valid, must be just, fair and reasonable 16 . In Ong Ah Chuan v PP [1981] 1 MLJ 64, a case from Singapore, the Privy Council held that ‘law’ refers to a system of law which incorporates fundamental rules of natural justice. In Cheow Siong Chin v Timbalan Menteri [1986] 2 MLJ 235 at 238 Harun J held that “law” in Article 5(1) includes principles of natural justice so that the requirement of a prior enquiry must be read into the Restricted Residence Enactment.(Harun J was later
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