Constitutional Law II

( LAC 2083 )

CASE REVIEW

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261

Inspector General of Police v Lee Kim Hoong [1979] 2 MLJ 291

In Re the Detention of R.Sivarasa & Ors [1997] CLJ 471

LECTURER: MDM ADZIDAH BT YAAKOB

TLB 4

SITI NUR JANNAH BT HASANUDDIN 1122051

These cases review are based on four points:

(a) Facts

(b) Argument

(c) Judgment

(d) Commentary

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan

[1996] 1 MLJ 261

(a)

The appellant was a senior assistant of a primary school in Johor. He was entrusted by

Johor Education Department (department) with a sum of money to be paid to the schools’

gardener who had absent from work for several months. When the department asked for

the return of the money, the appellant told them it was already been sent to them. But in

fact the money was kept with him. However, he did send the money to the department

eventually.

The appellant had been charged with breach of trust by a public servant under Section

409 of the Penal Code. He had been convicted and sentenced to six month imprisonment

by Sessions Court. Then, the Muar High Court affirmed the finding of guilt and made an

order which effect the conviction and punishment which the appellant had portrayed good

behavior for a period of three years in the sum of RM 5000 without sureties.

Subsequently, the department wrote to Education Service Commission (first respondent)

recommended the appellant be reduced in rank and salary. However, the fist respondent

decided to dismiss the appellant. The appellant dissatisfied and sought declarations that

his dismissal was null and void. The Johor Baru upheld the dismissal. Then the appellant

appeal to Court of Appeal Kuala Lumpur.

(b)

Appellant: The appellant sought declarations on two grounds which he claimed that his

dismissal was null and void as he had not been given opportunity to be heard before the

decision to dismiss him was taken and communicated to him and asked the court to

declare that he was still a member of public service.

Respondents: The respondents contended that the dismissal of the appellant was on the

basis of Article 135(2) of Federal Constitution and General Orders 33 and 35(1) Chapter

D. The respondents claim that the appellant had committed gross misconduct and it was

reasonable to dismiss him.

(c)

The Court of Appeal held that the expression of “life” in Article 5 of Federal Constitution

includes all facts that integral part of life and matters which form the quality of life. So,

as in this case, it is extended to the right to continue public service. If he is subjected to

removal, then it must be based on good cause and through a fair procedure. Whilst

Article 8 of Federal Constitution which protect personal liberty and equality, it is part of

the rule of the law in a republic. Therefore these articles must be read with a liberal and

not literal approach. Thus his dismissal was wrongful and unconstitutional.

(d)

As Professor Jain stated that ‘a country may have a constitution but not necessarily

constitutionalism’.1

The dynamism of a constitution ultimately revolves around the interpretation given to its

provisions. As Chief Justice Hughes of the US Supreme Court observed a long time ago

‘we are under a constitution but the constitution is what the Judges say it is’2

1 M P Jain, Indian Constitution Law, 4th Edn, 2001, at p 836.2 Ibid, at p 834

It is therefore left to the Judges when interpreting the Constitution to strike the right

balance between the State and the individual and to ensure individual rights are not

sacrificed at the mighty altar of the State.3

This case had illustrated about procedural fairness and constitutional right of a civil

servant facing dismissal situation. In my opinion, I totally agree with the judge, Gopal Sri

Ram, as his decision was wise. Article 5 of the Federal Constitution speaks about no

person shall be deprived of his life or personal liberty except in accordance with law. The

Federal Constitution was silent about the explanation of life and personal liberty. It could

be interpreted in a narrow sense or wider sense.

For me, these two articles should be read in a wider sense as life includes all necessities

and protection. Indirectly, this article may prevent the high authority to arbitrary used

power in the sense of mala fide. In fact, these articles can also be used to avoid the

doctrine of discrimination. If a public servant had committed an offence, and had

received his punishment, he cannot be terminated without having the opportunity for

right to be heard. If this right did not been given, then it breached the principle of natural

justice. As we all know, natural justice is technical terminology for the rule against bias

(nemo judex in causa sua) and the right to a fair hearing (audi alteram partem).4

In the book of Prima Facie by Mohamed Hanipa Maidin5 stated that there was a case in

America about the termination of public servant without hearing, the judge an American

judge stated that” if God can give reasons to Adam (where Adam break the rule of eating

the Khuldi) before he was instructed to left the Heaven, then who are you (employer) that

arbitrary used your power to terminate the employees without giving the reasons”.

3 Dato’ Dr Cyrus V Das, “Life” under Article 5: What Should it be (2002) XXXI No 44 Document of Destiny, p 5045 Mohamed Hanipa Maidin, VI Venture, p91

To sum up, the public servant deserves to be bound by this doctrine as the employer had

derived the benefit from his employee (public servant). Hence, the interpretation of the

law depends on the judges to give literal or liberal approaches. Every judgment might has

it pros and cons just like an Israel judge advice “when you sit to judge, you are indeed

being judged”.6

Inspector General of Police v Lee Kim Hoong [1979] 2 MLJ 291

(a)

The respondent was detained under the Emergency Ordinance 1969. He argued that

the ordinance, not having been laid before the Parliament thus did not have the force

of law. The high court held that the laying requirement is mandatory and the effect of

non compliance is that the ordinance ceases to have effect after Parliament convenes.

Thus, the detention of the respondent was unlawful and he was released. The

appellant dissatisfied and appealed.

(b)

Appellant: The respondent had been arrested and detained for the prevention for the

prevention of crimes involving violence.

Respondent: There is no reason given by the appellant on the grounds of the

respondent being detained. The question arise whether the emergency ordinance and

proclamation has been laid before the House of Parliament.

(c)6 Ibid, p87

The Federal Court held that the ordinance has been presented to both Houses and the

validity of the Ordinance was affirmed. The detention of the respondent was lawful

thus; the Federal Court set aside the High Court decision.

(d)

In my humble opinion, this case shown the requirement that accused is informed of

ground of arrest under the Emergency Ordinance. The issue arose whether the

Emergency Ordinance had been laid before Houses of Parliament.

It should be noted that the court cannot interfere the issues which are recognized to be

part of Parliament’s internal proceedings. It is supported by Article 63(1) along with

Article 53 and Article 62(2) which prevent the court from examining the internal

matters of Parliament. Courts are barred from questioning the validity of the votes

and Proceeding, Register and the Order Paper.

Therefore, the court accepted the evidence which is the records kept by Parliament

that show that the paper had been laid to both Houses. Thus, held that the detention

was lawful as the ordinance was affirmed and quashed the High Court decision

The judiciary system in Malaysia was said to be independent. However, in reality, the

power of the judiciary is limited due to the interference by the Executive and

Legislative. Independence of the Judiciary means that the Judiciary needs to be kept

aloof as far as possible from the other branches of Government and other interest

groups. In other words, Courts should not be subject to improper influence be it from

other branches of the Government, which is the Legislature as well as the Executive,

or from private or partisan interests.

If Judges in a country could decide cases and make rulings in applications before

them according to the rule of law and according to their judicial discretion, even if

they be unpopular and even if they may embarrass powerful vested interests, then we

might say there is Independence of the Judiciary in such a country. But it is

undeniable fact that the core of judicial task of Malaysia’s judiciary is to safeguard

certain values like human dignity, rule of law, constitutionalism and to name a few.

Then we further the discussion about the Emergency Ordinance (EO). It should be

noted that, Malaysia (including when we were Tanah Melayu) has seen 5 state of

emergencies altogether. The 1st time was in 1948 when the communist insurgency

resulted in 11000 people being killed. The 2nd time was in 1964 during the

Indonesian confrontation. The 3rd time was in 1966. This was limited to Sarawak

following the dismissal of the Chief Minister. The 4th time was in 1969 following the

13th May incident. Lastly, it was in 1977, which was limited to the state of Kelantan

to deal with the political crisis there. The last 4 emergencies have been lifted on

November 2011.

The reason the proclamations are lifted is because the emergency situation which

threatens the security, economic livelihood and public order does not exist at the

present moment.7

Unfortunately the proclamation of emergency has lost its credence in the country due

to the number of times it has been called."Common sense will tell us that 'emergency'

cannot be permanent. Otherwise there is something wrong either with the use of the

word or with the country or with the people who rule it. It is also rather odd to have

overlapping declarations of emergency – as if one declaration of emergency is not

sufficient. You all know that in the Malay language, if you repeat the same word

twice, the word loses its seriousness. Similarly, when you have more than one

emergency declaration operating simultaneously over the same area, the effect is lost.

Over the last fifty five years, how many of us thought that we were living under an

emergency? However, the courts had, throughout the existence of the proclamation of

emergency, upheld the validity of the proclamations,"8

7 Prime Minister Najib Tun Razak8 The fifth chief justice, Tun Abdul Hamid Mohamad

Article 150 (6) of the Federal Constitution allows the Parliament to pass any law and

His Majesty the King to promulgate any ordinance during state of emergencies and

those laws and ordinances will be valid even if they are repugnant or inconsistent

with any of the provisions of the Federal Constitution.

In other words, during an emergency, any kind of law would be valid. This means,

the Federal Constitution may be ignored, side-stepped or just plain torn, shredded and

burned. Which finally mean, you and I, citizen of Malaysia, do not have any kind of

recognizable right during an emergency. Various emergency regulations have been

promulgated and used since 1969. These regulations give wide and really draconian

powers to the police and government.

According to the the Universiti Teknologi Mara (UiTM) legal adviser, “People don’t

see it, they think the promise to repeal the ISA was the most important

announcement, but it is the lifting of Emergency Proclamations that would have the

largest impact on the country,” 9

Recently, the case of three youths aged 19 to 22 who were first detained for 60 days

and subsequently banished to Johor, Kedah and Pahang separately for two years,

simply for alleged motorcycle theft.

Syahredzan10 stated that EO detainees may still be required to serve the remaining

term of their detention order even if the EO expires. But Shad Saleem thinks the

federal government should release all detainees and those banished under EO in good

faith once the law expires.

It should be noted that Emergency laws are subject to very few limits compared to

ordinary laws. The government can re-enact the laws that they feel are still needed,

but these new laws will be subject to constitutional limits and human rights protected

under the constitution. Besides emergency laws are considered valid even if they are 9 Constitutional law expert Emeritus Prof Datuk Dr Shad Saleem Faruqi, 10 The Malaysian Bar Council’s Constitutional Law Committee Chairperson, Syahredzan Johan

inconsistent with provisions in the constitution, except for a limited scope of matters,

during Emergency.

These exceptions are only applicable to matters related to religion, citizenship,

language, Malay customs, and native law or customs in Sabah and Sarawak, as

specified in Article 150 (6A) of the constitution. Fundamental liberties such as

freedom of movement, freedom of speech, assembly and association guaranteed

under our constitution can be suspended during Emergency.

For example, the Emergency (Public Order and Prevention of Crime) Ordinance 1969

allows for detention without trial indefinitely. In addition, the federal government can

make laws that are under a state’s jurisdiction such as on land matters during

Emergency, as provided under Article 150 (4) of the constitution.

To sum up, wide powers are vested in the executive when our country is in a state of

emergency. Its end can only be a good thing. It would restore powers take away from

the judiciary and legislature, and bring back checks and balances between the three

branches of government.

In Re the Detention of R.Sivarasa & Ors [1997] CLJ 471

(a)

67 peoples were arrested at Asia Hotel, Kuala Lumpur for allegedly taking part in a

demonstration. A remand order was on obtained under Section 117 Criminal Code

Procedure from 10 November until 13 November 1996. Subsequently an application

for extension of 10 days was made to 10 suspects.

The Magistrate granted the extension on the ground that the detention was too short

and insufficient for the police to complete their investigation. Apparently, the

investigation diary relied by the Magistrate consisted only three sheets of paper. On

revision, it was contended that the Magistrate did not comply Section 117 of the

Criminal Code Procedure.

(b)

The applicants contended that the remand order was fatally defective as it did not

comply with the Section 117 of the Criminal Code Procedure.

(c)

The High Court held that the police have positive duty to transmit to Magistrate a

copy of entries in the diary prescribed under Section 119 of the Criminal Code

Procedure when producing a suspect before the Magistrate. In this case, no copy of

the entries in the diary was transmitted to the Magistrate. Thus the application for

extension of remand was fatal and set aside the remand order.

(d)

In my opinion, the failure to furnish the Magistrate with a copy of the investigation

diary as required under Section 119 of the Criminal Code Procedure was fatal to the

application because it prevented the Magistrate from making a judicial inquiry

whether to order or not further remand under Section 117 of the Criminal Code

Procedure.

In the case of Maja Anak Kus v PP, where Justice Tan Chian Thong said that

whenever a person is arrested without a warrant, the police in the absence of a special

order of a Magistrate, are not authorized to detain the person arrested in custody

beyond 24 hours. If the police are unable to complete the investigation within that

period, the offence becomes a bailable offence. The person arrested must be given

bail, if he is prepared to furnish bail.

Where as in Hashim B Saad v Yahya B Hashim & Anor, Harun J states the purpose of

further detention under Section 117 of CPC is to enable the police to complete

investigation. The detention itself is subject to judicial control requiring the

Magistrate to scrutinize the essentiality of prolonging the detention and must record

his reasons if he prolongs it. Thus, the law puts duty on the police to supply the

Magistrate with a copy of investigation diary which contain all the particulars as

required under Section 119, namely to inform the Magistrate of the progression of the

investigation up to the time of the application and not what they think the Magistrate

need only know.11

It should be noted that an order by the Magistrate, authorizing the detention of an

arrested person beyond the period of 24 hours made under Section 117 is a judicial

act and cannot found a claim for damages against the Magistrate.

Apparently, in application by the police under Section 117 of CPC, may or may not

be noticed by his counsel. Probably, no opportunity was ever given to an accused to

appoint a Counsel. The situation in Malaysia, an arrested person seems to have no

right to inform anyone who might have an interest in his predicaments. It is a practice

of police officers to make the application in Magistrate’s chambers.

Even if the accused have appointed his counsel, no notice is required to be given to

his counsel with the results that such an application would go unnoticed. The officer

who normally decides whether counsel may be allowed is the investigating police

officer. Among the reasons for allowing the counsel to see the arrested person, is that

the person arrested “has been very cooperative”.

It is also suggested that the lawyer should be polite and firm to the police, be smartly

addressed to command more respect from the investigation officer and not to be

confrontational when making a request to the police to see his client.12

11 ( 1197) 1 MLJ 61112 Professor Dr Abdul Rani Bin Kamarudin, Rights of an Arrested Person to Counsel : It is not a case of too little too late?

What is clear is that the police need time to get hold the evidence to prevent

deliberate destruction or removal. This is why detention is necessary. The refusal to

allow the suspect with Counsel at the investigation stage therefore is in accordance

with law.

Hence, it is important to follow the procedure before authorizing detention beyond 24

hours to avoid suspension of tyranny in the minds of the public and breach of natural

justice.