The Book of Prof Shad.docx

In india but not in malaysia the right to travel

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In India, but not in Malaysia, the right to travel abroad is part of personal liberty 12 . In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] 3 MLJ 289 it was held that Article 5(1) includes a person’s right to seek judicial review. In Muhammad Juzaili bin Khamis & Ors v Govt of NS [2015] MLJU 65 those suffering from GID have a right to cross-dress under article 5(1) (life and personal liberty). Additionally under articles 8(1) and 8(2) they have a right to equality and non-discrimination. The law failed to recognise that the Appellants were not similarly situated with other “Muslim men”. Under article 9(2) they have freedom of movement. The Appellants could never leave their homes without risk of arrest and prosecution. Under article 10(1) they are entitled to freedom of expression. Clothing and dress formed part of freedom of expression and the Appellants were therefore denied this right in violation of article 10(1)(a). Though the case was overruled on procedural grounds the CA’s activist interpretation left its mark. In Re JG, JG v Pengarah Jabatan Pendaftaran [2006] 1 MLJ 90. 13 it was held that personal liberty includes a person’s right to change reference to her gender in her Mykad after successful reassignment surgery from male to female. But note contrary view in Wong Chiou Yong (P) v Pendaftar Besar [2005] 1 MLJ 55. In Lim Hai Sun [1992] 3 CLJ 1602 an order to reside at a drug rehabilitation centre was held to constitute a denial of liberty. 9 Kharak Singh v State of U.P. AIR 1963 SC 1295 10 Govind v State of M.P. AIR 1975 SC 1379; State of Maharashtra v Mandulkar Narain AIR 1991 1 SC 207 11 State of Maharashtra v Prabhakar Pandurang AIR 1986 SC 424 12 Satwant Singh v Assistant Passport Officer AIR 1967 SC 1836; Loh Wai Kong v Government of Malaysia [1978] 2 MLJ 175 13 For a contrary view see Wong Chiou Yong (P) v Pendaftar Besar [2005] 1 MLJ 551 22
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Such a holistic, prismatic and innovative approach to constitutional jurisprudence breathes life into the static clauses of the Constitution and confers on citizens many rights, which although not enumerated in the Constitution, are implicit in the basic charter’s scheme of things. There is no avoiding such a prismatic approach because life is always larger than the law. Narrow approach; The Malaysian approach in Government v Loh Wai Kong [1979] 2 MLJ 33 is much narrower. ‘Personal liberty’ does not include the right to travel overseas nor the right to own a passport. It merely means ‘liberty relating to or concerning the body of the individual.’ Personal liberty is freedom from unlawful arrest and detention, It is protection against bodily punishment and suffering: PP v Tengku Mahmood Iskandar [1973] 1 MLJ 128. As long as there is no arrest or detention there is no deprivation of rights, life or personal liberty: Aminah v Superintendent of Prison [1968] 1 MLJ 92.
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