Tuesday, January 18, 2011

CLASS TUTORIAL 3-UM ACADEMIC SESSION -April/Mei 2009 [ Bachelor of Jurispudence/ Bachelor of Law]

“Fifty-one years after Independence and nationhood and with a powerful written Constitution purporting to preserve, protect and defend fundamental rights, the Malaysian Administrative Law on the whole is still at the stage of infancy in terms of commitment to the Rule of Law and good administrative governance. This is a serious deficit particularly in the light of the developments taking place in other common law countries like India, South Africa and Hong Kong particularly in the context of constitutional review.”

With the aid of relevant case law, statutory as well as other developments, discuss and analyse the conclusion and comment made by the paper writer. You are reminded to focus your discussion on the developments of Malaysian Administrative Law ever since Karam Singh. References to the legal position in India, South Africa and Hong Kong must be brief and precise.
(15 markah/marks)

12. Freedom and security of the person

SA CONSTITUTION ARTICLE 11
Everyone has the right to freedom and security of the person, which includes the right ­
(a)not to be deprived of freedom arbitrarily or without just cause;
(b)not to be detained without trial;
(c)to be free from all forms of violence from either public or private sources;
(d)not to be tortured in any way; and
(e)not to be treated or punished in a cruel, inhuman or degrading way.

SA CONSTITUTION ARTICLE 35. Arrested, detained and accused persons
Everyone who is arrested for allegedly committing an offence has the right ­

(a) to remain silent;
(b)to be informed promptly ­
(i) of the right to remain silent; and
(ii)of the consequences of not remaining silent;
(c)not to be compelled to make any confession or admission that could be used in evidence against that person;
(d)to be brought before a court as soon as reasonably possible, but not later than ­
(ii)48 hours after the arrest; or
(ii)the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
(e)at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
(f)to be released from detention if the interests
39. Interpretation of Bill of Rights

 SA CONSTITUTION ARTICLE 39 When interpreting the Bill of Rights, a court, tribunal or forum ­
(a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b)must consider international law; and
(b)may consider foreign law.

(Contrast with the Malaysian position- S 5 of the Civil Law Act foreign law is only applicable (i) where there is a lacuna in the local law (ii)where local circumstances permit

Case Law-Minister of Justice & Constitutional Development v Zealand [2007] SCA 92 (RSA)
PLEASE READ UP THIS CASE
The respondent sued the appellants in the Port Elizabeth High Court in an Aquilian action for damages arising out of his alleged unlawful detention. By agreement, the parties put one defined issue before the court in terms of rule 33(4) of the Uniform Rules of Court, namely whether the respondent’s detention during the period 23 August 1999 to 30 June 2004, or any part thereof, was unlawful.

Constitution of India, 1949

22. Protection against arrest and detention in certain cases.-
1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.


(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

In 2006, the Supreme Court of India in a judgment in the Prakash Singh vs. Union of India case , [2006 (8) SCC 1] ...


ordered central and state governments with seven directives to begin the process of police reform. The main objectives of this set of directives was twofold, providing tenure to and streamlining the appointment/transfer processes of policemen, and increasing the accountability of the police.


Considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation in the country, the Government of India, on 15th November, 1977, appointed a National Police Commission (hereinafter referred to as 'the Commission'). The commission was appointed for fresh examination of the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution.

HONG KONG

Human rights protection is enshrined in the Basic Law and its Bill of Rights Ordinance  By virtue of the Bill of Rights Ordinance, the International Covenant on Civil and Political Rights (ICCPR) is put into effect in Hong Kong. Any legislation that is inconsistent with the Basic Law can be set aside by the courts.

Human rights in Hong Kong occasionally comes under the spotlight by the international community because of its world city status. Commentators claim that this can be used as a yardstick to judge whether the People's Republic of China has kept its end of the bargain of the "One Country, Two Systems" principle granted to the Hong Kong Special Administrative Region by its current mini-constitution, the Basic Law, under the Sino-British Joint Declaration.
BILL OF RIGHTS ORDINANCE
2.9 No arbitrary arrest, detention, imprisonment, search or seizure

2.9.1 Power of arrest
2.9.2 Power to stop, detain and search
Constitutional reviewFurther information: Human rights in Hong Kong


Under the Basic Law, the court of Hong Kong is also delegated with the power to interprete the Basic Law. Thus, it is recognised by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. Like the United States, Hong Kong courts have held that they may review as to whether legislation passed by the legislature are in compliance with the Basic Law. This is different from the situations in UK where the court may have no such jurisdiction under the traditional doctrine of parliamentary supremacy. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.

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