LIFE & LIBERTY – ARTICLE 5 OF THE FEDERAL CONSTITUTION

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LEX BORNEO 1 – CELEBRATING MERDEKA 50 – LIFE AND LIBERTY

Q: I was born in 1961 which was after 31 August, 1957 ('Merdeka Day'), when the Federal Constitution came into being, and the Federation of Malaya became an independent sovereign state and before Sabah and Sarawak joined the Federation in 1963 under the Malaysia Agreement 1963 and the Malaysia Act 1963 and the Federation was renamed 'Malaysia'. I survived the seceding of Singapore from Malaysia in 1965 and the Indonesian Confrontation and the May 13 riots in 1969. Yet I was mildly embarrassed when my 21 year old son asked me does Malaysia practise the rule of law and I was stumped for an answer. What is the rule of law and does it exist in Malaysia?
NICK MAT

LEX BORNEO: Yes the rule of law is embodied in the Federal Constitution under Articles 5 to 13 of the Federal Constitution. The provisions contained in this Part are meant to protect individual rights of the ‘rakyat’ and other people in Malaysia. Under the concept of the rule of law the individual has certain fundamental liberties upon which even the power of the state cannot interfere with. These fundamental rights under the Federal Constitution are Article 5 (Liberty of the person) Article 6 (Slavery and forced labour prohibited), Article 7 (Protection against retrospective criminal laws and repeated trials), Article 8 (Equality),Article 9 (Prohibition of banishment and freedom of movement), Article 10 (Freedom of speech, assembly and association), Article 11(Freedom of religion), Article 12 (Rights in respect of education) and Article 13 (Rights to property).


In 1997 Raja Azlan Shah FJ put it aptly in this manner 'The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach..... ‘
What does it mean when we say the Federal Constitution is the supreme law of the land. It means that all laws enacted in the Federation of Malaysia must accord with the Federal Constitution and no lawmaker has authority to make law which contravenes the Federal Constitution.The powers of Parliament and of State legislatures in Malaysia is limited by the Federal Constitution, and they cannot make any law they please and if they do then such law may be invalidated by the Court on one of the ground that it is inconsistent with the Federal Constitution .

LIFE & LIBERTY – ARTICLE 5 OF THE FEDERAL CONSTITUTION
In today’s we feature Article 5(1) of the Federal Constitution which reads as follows:- “Liberty of the person
(1) No person shall be deprived of his life or personal liberty save in accordance with law.”

This is a fundamental right that is available to all persons in Malaysia and this includes non-citizens.

MEANING OF LIFE UNDER ARTICLE 5(1)

What is meant by the term “life”?. Is it just biological life or does it encompass more than that?
In a Court of Appeal decision of 2000 the term ‘life’ was defined in the following terms:-
“Similarly, when a person is deprived of his reputation, it would in my judgment, amount to a deprivation of ‘life’ within Article 5(1) of the Federal Constitution. The right to reputation is part and parcel of human dignity. And it is the fundamental right of every person within the shores of Malaysia to live with common human dignity………But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings………The expression ‘life’ does not merely connote animal existence or a continued drudgery through life. The expression ‘life’ has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person … the same can be put in jeopardy only by law which inheres fair procedures. “


NATIVE CUSTOMARY RIGHTS & ARTICLE 5

‘What about the right of livelihood? Is it part of “life” and covered by Article 5(1)?
In Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors, a decision made in the year 2001 in the Kuching High Court, a representative action was taken out by 4 Ibans for themselves and on behalf of ‘all other occupiers, holders and claimants of native customary land in the Bintulu Division.’ The defendants had been issued titles to two parcels of land and had engaged contractors to clear the land and planted trees to feed a paper mill.
The plaintiffs claimed that they have acquired native customary rights over certain part of the land (‘the disputed area’) and that the defendants had trespassed and damaged the disputed area. These native customary rights were described in the Iban language as pemakai menoa, temuda and pulau.
Pemakai menoa is an area of land held by a distinct longhouse or village community, and includes farms, gardens, fruit groves, cemetery, water and forest within a defined boundary ( garis menoa). The pioneers of a longhouse community are usually relatives who banded together in search of a new territory and when this is found, the pioneers would build a longhouse with sufficient rooms arranged in a row, all joined together to accommodate the families. The longhouse will just expand with new families. It is within this territory, called the pemakai menoa, that each longhouse community has access to land for farming, called the temuda, to rivers for fishing and to jungles, called the galau or pulau galau, for the gathering of forest produce. It has boundary separating it from that of another longhouse. The boundary is reckoned by reference to mountains, ridges and rivers or other permanent features on the earth.


Datuk Ian Chin J held that the ‘right to livelihood’ comes under Article 5(1) of the Federal Constitution and that native customary right can be considered as a ‘right to livelihood’. Thus the customary rights of a native which have not specifically been abolished are to be preserved.


In the words of Yang Arif “It has been said that though Sarawak was ceded to James Brooke and with it the proprietorship and sovereignty over the land, he had shown a consistent respect for native customary rights over land (see Anthony Porter — The Development of Land Administration in Sarawak from the Rule of Rajah James Brooke to the Present Time (1841–1965)). In fact, James Brooke had referred to native customary rights as ‘the indefeasible rights of the Aborigines’ (see John Templer — The Private Letters of Sir James Brooke, KCB, Rajah of Sarawak). James Brooke was ‘acutely aware of the prior presence of native communities, whose own laws in relation to ownership and development of land have been consistently honoured’ (see Anthony Porter, p 16).
In my view there is another obvious though unmentioned reason for not attempting to prohibit entirely native customary rights. During the reign of the Rajah he has to contend with rebellions after rebellions of various native groups and he was able to convince one group to go on war expeditions on his behalf against the other. The exploits of Munan Anak Minggat is an example (see Robert M Pringle’s thesis on The Ibans of Sarawak Under Brooke Rule 1841–1941). If the Rajah had abolished all those rights he would have united all the natives and he would have a war against him by a united front made up of all the natives of Sarawak. His head would have been the trophy that would be sought, it being the custom of that time to take the head of an enemy. To put it another way, the Rajah cannot afford to abolish those rights given the ability of the like of Munan to lead his people.”

The learned judge awarded the following remedy to the 4 Ibans :- “As the plaintiffs are entitled to exercise native customary rights over the disputed area there will be and I do make a declaration that the plaintiffs are entitled to exercise native customary rights in the disputed area. Since the defendants are not entitled to enter into the disputed area there will be an injunction against them and their servants or agent not to do so from henceforth.”


The meaning of ‘Liberty”

The meaning of the word ‘Liberty’ under the context of Article 5 came up for decision in 1979 in the Federal Court. The then Lord President Tun Suffian delivering the judgment of the Court first laid down the relevant facts of the case which make interesting reading:-
“Mr. Loh Wai Kong (“applicant” ) was a student in Australia and in January 1966 married. On April, 1975, he left Australia to come back home and, because he had been granted a Resident Visa entitling him to live permanently in Australia, his Malaysian passport was endorsed by the Australian Government with an Authority to Return valid for three years from that date.
On August 2, 1976, he was charged in court in Ipoh with criminal offences. His passport was surrendered to court as a condition of bail.
On March 2, 1977, his passport expired and on June 9 that year it was returned to him at his request. If it was his intention to go overseas, the passport would not have helped, because no airline would accept a passenger without a valid passport.
On a date that is uncertain he applied for a new passport.
It was important that he should get it and quickly so that with it he could travel to Australia and there show the Australian Government the expired passport stamped with the Authority to Return to Australia, and request them to stamp the new passport also with an Authority to Return — which must be done before April 25, 1978, the date of the expiry of the old Authority.
Our Immigration Department refused to issue the applicant a new passport. The criminal charges were still pending.
On March 2, 1978, the applicant applied to the High Court in Penang for an order directing the Government of Malaysia as first respondent, the Minister of Home Affairs as second respondent, the Head of Immigration, Penang, as third respondent, and the Passport Officer, Penang, as fourth respondent, to issue the applicant a passport.
He then contended that:

(1) he had a fundamental right to travel abroad, and
(2) the refusal of a passport violated this right.


Tun Suffian LP then discussed the law as follows:- ‘These arguments raise the following issue: does a citizen have a right to leave the country, to travel overseas, and a right to a passport?
Article 5(1) speaks of personal liberty, not of liberty simpliciter. Does personal liberty include the three liberties? ……in construing “personal liberty” in article 5(1) …. we are convinced that the article only guarantees a person, citizen or otherwise, except an enemy alien, freedom from being “unlawfully detained”; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate’s authority. It will be observed that these are all rights relating to the person or body of the individual, and do not, in our judgment, include the right to travel overseas and to a passport. Indeed freedom of movement is dealt with specifically in article 9 which, however, only guarantees the citizen (but not the non-citizen) the right to enter Malaysia, and, subject to the special immigration laws applying in Sabah and Sarawak and to other exceptions set out therein, to move freely within the Federation and to reside anywhere therein.’

The Federal Court then made the following decision:-

(1) personal liberty in article 5 of the Federal Constitution means liberty relating to or concerning the body of the individual; that Article does not confer on the citizen a fundamental right to leave the country. On the contrary the government may stop a person from leaving the country if, for instance, there are criminal charges pending against him;
(2) article 5 does not confer on the citizen a fundamental right to travel overseas;
(3) article 5 does not confer on the citizen a right to a passport. The government has a discretion whether to issue or not to issue, delay the issue of or withdraw a passport, for instance if criminal charges are pending against the applicant. The exercise of this discretion is subject to review by a court of law, as in the case of other discretionary powers.


The Boundaries of ‘Life and Liberty’ under Article 5(1)

The exact limits of the terms ‘Life and Liberty’ under Article 5(1) are not fixed and are capable of being expanded by the Courts.
In a suit known as Kanawagi s/o Seperumaniam v Penang Port Commission the High Court at Kuala Lumpur extended the definition to include the right of employment. The defendant known as the Penang Port Commission (‘PPC’) was a public authority which engaged the plaintiff as a mobile clerk, in its Traffic Department with effect from 1 May 1975.The plaintiff was dismissed by the defendant in 1985. He filed an action against the defendant seeking for a declaration that the defendant’s action in terminating the plaintiff’s services was ultra vires the Penang Port Commission Act and therefore, null and void and invalid. The High Court declared that the defendant’s dismissal of the plaintiff from his employment was null and void and ordered that the plaintiff back to his job and together with his arrears of salaries and all other emoluments since employment is a fundamental right within the expression of Article 5 (1) of the Federal Constitution.


Raja Azlan Shah FJ (as he then was) made the following pertinent reflections on the Federal Constitution in 1977 'Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands on its own right ... Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from the desire to see how their progress and well-being is ensured by their fundamental law... While the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so as to allow the country's growth ... the power of amendment is an essential means of adaptation. A Constitution has to work not only in the environment in which it was drafted but also centuries later. "The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow ... It is the living, and not the dead, that are to be accommodated’