torts, constitutional Law
Assignment 1
Constitutional Law (LAW437)
Question
Habeas Corpus is a remedy to secure personal liberty in Malaysia. Discuss with reference to some decided cases.
1.1 INTRODUCTION The main provision of the Constitution which is relevant is Art. 5(1):”No person shall be deprived of his life or personal liberty save in accordance with law.” This most fundamental of all fundamental-rights provisions is given to all persons, not just citizens. Art. 5 goes on to provide for the right to habeas corpus1, the right of arrested persons to be informed of the grounds of their arrest and to legal representation2, and to be produced before a Magistrate within 24 hours of arrest.3 Art. 5 is, however, like the other fundamental-rights provisions, curtailed in its practical operation by emergency powers and powers against subversion under Arts. 150 and 149, where this power include the power, whether during an emergency or during peace-time, to enact legislation which overrides fundamental rights. For this reason legislation such as Internal Security Act 1960 is constitutionally valid, even though it gives power to the Government to detain persons without trial. However, it is clear from case law Art. 5 rights will be read into, or implied into, statutes, and this principle has been applied even to preventive-detention laws passed under Arts. 149 and 150, with the result that persons detained under such security legislation, as well as persons arrested under the ordinary criminal law, enjoy many of the rights contained in Art. 5.4
The difference is that legislation may be inconsistent with Art.5 and yet remain constitutionally valid. The law relating to preventive detention is of such importance for personal liberty in Malaysia that it is dealt with separately below.
The phrase “save in accordance with law” in Art.5(1) is puzzling and has led to some difficulty of interpretation. Provisions of this kind are not uncommon in constitutional law and give rise to two
Constitutional Law (LAW437)
Question
Habeas Corpus is a remedy to secure personal liberty in Malaysia. Discuss with reference to some decided cases.
1.1 INTRODUCTION The main provision of the Constitution which is relevant is Art. 5(1):”No person shall be deprived of his life or personal liberty save in accordance with law.” This most fundamental of all fundamental-rights provisions is given to all persons, not just citizens. Art. 5 goes on to provide for the right to habeas corpus1, the right of arrested persons to be informed of the grounds of their arrest and to legal representation2, and to be produced before a Magistrate within 24 hours of arrest.3 Art. 5 is, however, like the other fundamental-rights provisions, curtailed in its practical operation by emergency powers and powers against subversion under Arts. 150 and 149, where this power include the power, whether during an emergency or during peace-time, to enact legislation which overrides fundamental rights. For this reason legislation such as Internal Security Act 1960 is constitutionally valid, even though it gives power to the Government to detain persons without trial. However, it is clear from case law Art. 5 rights will be read into, or implied into, statutes, and this principle has been applied even to preventive-detention laws passed under Arts. 149 and 150, with the result that persons detained under such security legislation, as well as persons arrested under the ordinary criminal law, enjoy many of the rights contained in Art. 5.4
The difference is that legislation may be inconsistent with Art.5 and yet remain constitutionally valid. The law relating to preventive detention is of such importance for personal liberty in Malaysia that it is dealt with separately below.
The phrase “save in accordance with law” in Art.5(1) is puzzling and has led to some difficulty of interpretation. Provisions of this kind are not uncommon in constitutional law and give rise to two