Constitutional Law - Fundamental Liberties


Fundamental liberties are essential conditions for a free and democratic way of life.

1. According to Hobbes rights are granted by the sovereign. Thus there is a contract between the people and the sovereign. People pull their rights with a promise to submit to sovereign and the sovereign promise to protect these right. However in Butcher Co. v Cresent City Co a case from US court, it was held that Fundamental Rights is not the product of the Sovereign or the Parliament or the Congress but it was bestowed on man by the Creator, therefore man must protect it.

2. The conscious of human rights arose in Europe after the renaissance. In 1688 Bills of Rights were enacted which leads to the independence of America.

3. In fact in 600 years before the Magna Carta, Islam has established fundamental liberties of human rights. The basic 5 fundamental rights which must be protected are mind, body, property, religion and lineage. The first Constitution in the world Sahifa Medina shows clearly, the contract between man and state and man and man. In Islam saving a man is saving the entire humanity and killing a man is destroying the humanity.

4. A scheme of fundamental rights are incorporated in the Federal Constitution based on the British experience. Being a pluralistic society, Fundamental Right were incorporated with an intent to protect the rights without prejudice.

Article 5(1) of Federal Constitution

No one shall be deprived of his life or personal liberty saves in accordance with law (qualified in nature)

Meaning of Life

Basically it is difficult to define ‘life’. Whether it includes sperm, fetus etc.

1. Munn v State

‘Life’ according American context is not merely animal existence.

2. Francis Carolie v Union Territory of Delhi

Right to life means right to live with dignity and including all that goes about within it i.e shelter, clothing and nourishment.

3. Mukti Morcha v Union of India

Right to life includes protection of health and strengthen of the workers (male/female and children’s growth)

4. State of HP v Umed Rao

Right to life means an access to quality of life.

5. Tan Tek Seng v Suruhanjaya Perkhidmatan Pelajaran

Right to life is not only mere to animal but includes any limbs of life which cannot be deprived from any person.

Is Death Sentence/Life Imprisonment Violate Right To Life

There are numbers of Statutes provide death penalty and life imprisonment i.e ISA and DDA. Whether this violate Article 5(1) of Federal Constitution.

1. PP v Lau Kee Hoo

Accused convicted under Section 57 ISA. Mandatory death sentence is constitutional.

2. Che Omar Che Soh v PP

Involved mandatory death penalty under DDA. Held that mandatory death sentence is constitutional. Article 3 of Federal Constitution does not include Islamic Law as the law of the federation.

3. PP v Yee Kim Seng

ISA was a perfectly valid law passed by parliament and the accused is not going to be deprived of life … except in accordance with law.

4. Che Ani b Itam v PP

The term of ‘life imprisonment’ under Section 4 Fire Arms (Increase Penalty) Act does not infringed the fundamental rule of natural justice.

Personal Liberty

One of the protection granted by Article 5(1) of Federal Constitution is personal liberty.

1. PP v Tengku Mahmud Iskandar

Personal Liberty has been interpreted as ‘limited to actions taken against the person or body of an individual’. It means restriction to the physical body of person.

* Whether Personal Liberty covers Freedon of Movement

2. Govt of Malaysia v Loh Wai Kong

The Article 5(1) of Federal Constitution does not confer on a citizen a fundamental liberty to leave country nor does it confer a fundamental right to travel overseas. It does not confer the right to a passport. It is on the discretion of the government whether to issue or not.

3. Karam Singh v Menteri Hal Ehwal Dalam Negeri

A detainee of ISA challenge the validity of detention order under ISA on the ground that Executive acted mala fide without giving proper consideration to the matters and all the allegations are baseless and right to represent was deprived. Federal Court held the detention is lawful because Article 5(1) of Federal Constitution authorized that probation of personal liberty in accordance with law.

Parliament can make law restricting personal liberty.

Saves In Accordance With Law

1. Basically there are two interpretations to the word ‘Law’.

i. ‘Law’ means any statute passed by Parliament so that no statute will be contrary to Article 5(1) even it deprive the life and personal liberty of a person.

ii. ‘Law’ which must includes within it fundamental rules of natural justice. Thus a statute can be struck off under Article 5(1) of Federal Constitution if it goes against these rules.

Before 1981, the courts ruled that as long as the legislature is competent to enact a law in exercising its legislative power, the affected person cannot question it’s as unreasonable.

Indian Cases

1. Gopalan v State of Madras

2. Maneka Gandi v Union of India

Before 1981

1. Arumugam Pullai v Govt of Malaysia

2. Karam Singh v Menteri hal Ehwal Dalam Negeri

After 1981

1. Re Tan Boon Liat & Anor

2. Ong Ah Chuan v PP (Singapore)

3. Che Ani b Itam v PP

See also Federal Constitution.
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