HAPPY CHINESE NEW YEAR

WISHING ALL OUR CHINESE STUDENTS A HAPPY AND PROSPEROUS NEW YEAR!!! REACH HOME SAFELY AND RETURN TO UM CAMPUS SAFELY.-vj

ADMINISTRATIVE LAW-April/Mei 2010

Critically analyse the following from the perspective of public law:

(a) Whenever a death occurred mysteriously to a detainee who was in the custody of a detaining authority.

(b) In the most recent case of Borhan bin Hj Daud & Ors v Abdul Malek bin Hussin, the Court of Appeal reversed the earlier High Court decision on the same both in terms of findings of fact and damages.

(15 marks)

"Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:

(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan

(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.

...............................................................................................................................................................................................................

ABD MALEK HUSSIN v.BORHAN HJ DAUD & ORS

HIGH COURT MALAYA, KUALA LUMPUR

HISHAMUDIN MOHD YUNUS J

[CIVIL SUIT NO: S3(S5)-21-20-1999]

18 OCTOBER 200

Briefly, the plaintiff alleges that he was unlawfully arrested without a warrant of arrest by a group of Special Branch officers led by the first defendant at about 10 o’clock at night on

25 September 1998. The arrest occurred in front of his house, as he was returning home and after he had just alighted from a car driven by a friend. He was not clearly told by the first defendant of the reason for the arrest. He was only vaguely told that he was arrested under the Internal Security Act. The plaintiff alleges that at the time of arrest he was handcuffed and given a hard slap thrice by the first defendant when he was unable to show the first defendant the location of his car. After the arrest, the first defendant and his men entered the plaintiff’s house without a search warrant and seized several documents and items. He was then blindfolded and taken to the Ibupejabat Polis Kontinjen (‘the IPK’), Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel. The ordeal lasted until 4 in the morning. He was denied medical treatment for several days. Only on 29 September that he was taken to see a doctor, Dr. Vasantha (SD7).

...........................................................................................................................................................................................................................

TYPES OF INTRODUCTION

 Constitutional law defines govermental power in it's three branches of legislative,executive and judicial  power and the interrelationship  one with another. Administrative Law is concerned with controls of such power, in particular - Judicial control of executive power.

Dont be carried away by JR alone- remember the bottom line is this- It is the Executive which is elected -not the Judiciary.

 In one of the worst  crossfire between the Executive and the Judiciary in Malaysia  -Dr. Mahathir  told the head of the Judiciary, the then YAA Salleh Abbas..." If you  disagree with the Executive- then  resign and stand for election... and find out for yourself if anybody would vote for you!"

Tun Haji Mohamed Salleh bin Abas is a former Lord President of the Federal Court of Malaysia. He was dismissed from his post during the 1988 Malaysian constitutional crisis.

MR.SACHPAL SINGH

On Jan 25, 2011, at 9:33 PM, Sachpal Singh wrote:

Jackass Lawyers easily forget they were once chambees/Legal Assistants/too. Ego grows larger not with recognition, rather with the dreaded but human need for power but respect, respect comes to those who least seek it. It is very convenient indeed for lawyers to have complaints too, wasn't the same said at the height of the all revolutions? Treat everybody with respect, the lowly chambees, clerks, despatch boys and cleaners alike and even with unideal working conditions productivity would increase ten fold, I would bet my soul on it.

SUZANA MD IDRIS V DSP ISHAK HUSSAIN & ORS- 1 CLJ 226 [2011]

THIS WEEK'S TUTORIAL DISCUSSION - 26/27  JANUARY 2011

CONSTITUTIONAL LAW- FUNDAMENTAL LIBERTIES- PERSON DEPRIVED OF MEDICAL CARE AND ATTENTION  & CONSEQUENTLY DIED WHILE IN POLICE CUSTODY

FEDERAL CONSTITUTION- PART II- UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948,  ARTICLES  3 & 5

STRIKE THE SHEPHERD AND THE SHEEP WILL SCATTER

Trouble can often be traced to a deceitful or a bitter unforgiving individual-the stirrer, the camaflouged snake, the poisoner of goodwill.These animals are not in Courts to get justice- they are there with a personal vendetta-and they are smart at  outsmarting lawyers.If you allow such people to operate, others will succumb to their influence.Do not wait for the troubles they cause to multiply, do not try to negotiate with them-they are irredeemable.Neutralize their influence by serving a subpoena and dragging them from the shadows. Destroy their credibility by cross examination in open Court.Strike at the source of the trouble and half the case is solved.

HUMAN RIGHTS COMMISSION OF MALAYSIA ACT 1999

PART III POWERS OF INQUIRY OF THE COMMISSION
12. Commission may inquire on own motion or on complaint

(1) The Commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of person.

(2) The Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which---

(a) is the subject matter of any proceedings pending in any court, including any appeals; or
(b) has been finally determined by any court.

(3) If the Commission inquires into an allegation under subsection 12(1) and

during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the Commission shall immediately cease to do the inquiry.

Procedure where infringement is not disclosed or is disclosed

 Date of Royal Assent ···.27 August 1999 Date of Publication in the Gazette ···.9 September 1999

BE SELF RELIANT

There is nothing more worse than feeling dependant on other people. Dependancy makes you vulnerable to all kinds of destructive emotions- betrayal, anger, frustration, helplessness...sadness.. the  feeling of being disrespected.Being self reliant is critical. Make a decision to stand on your own feet.

PS. Observe this rule and you won't be doing what the handsome guy in the picture is doing.

KNOW WHO YOU ARE DEALING WITH- DO NOT OFFEND OR DECEIVE THE WRONG PERSON

 There are many different kinds of  people  in the  world , and you must never assume that everyone will react to your type in the same way. Remember this- if you deceive or outmaneuver the wrong people, they will spend the rest of their lives seeking revenge. They are the snakes in the grass.The green grass looks peaceful and calm- but there is a dangerous snake lurking there.Don' be deceived by your Clients or others lawyers peaceful and loving exteriors. You might have a heart attack if you knew what is hidden from the public view. Choose your clients and opponents carefully-then never offend or deceive the wrong person.Heed this advice or pay the price.

INFECTION- AVOID THE UNLUCKY & UNHAPPY

You can die from someone else misery.Emotional states are as infectious as deadly diseases. You may feel that you are only helping the drowning lawyer in Court but you are actually precipating your own disaster. If you feel like helping the unfortunate, than join a charitible group to express your compassion. But you are a litigation lawyer in Court and you represent your Clients interests. The unfortunate not only draw misfortune on themselves by their inertia- they will also draw it on you. Have you ever noticed that some people are unhappy or depressed most of the time? Some are unhappy all their lives. Like something within is bothering them down.Keep your friendships outside the Courtroom-you are in Court to get justice for your Client.All other considerations will have to take a back seat. This is the reality for lawyers.

TIPS FOR LITIGATION LAWYERS- STIR UP THE WATERS TO CATCH THE FISH

Anger and emotion are conterproductive in a Court of law. It really is no point to "tunjuk perasaan" in the heat of battle.Stay calm and objective. But if you can make the Opposing Counsel angry while staying calm yourself, you gain a decided advantage. Put the other lawyer off- balance. Find the chink in their armour through which you can rattle and hold the strings.Once they are disoriented and confused the legal issues- its time to bring out the axe and the chopping block.

INDICTMENT- DEFINITION

a formal written statement framed by a prosecuting authority and found by a jury charging a person with an offense

TIPS FOR NEW LITIGATION LAWYERS- DESPISE THE FREE LUNCH

Everything has a price tag- and they are oftentimes invisible price tags. What is offered for free is dangerous- usually from opposing counsel and sometimes from your own devious clients.It usually involves a bait or a hidden agenda.( mati ikan kerana umpan). What has worth is worth paying for.By paying your own way-you stay clear of gratitude, guilt or feeling a sense of obligation to anyone.It is often wise to pay the full price- and guard your sense of independence.You can only be free when you owe no one anything.When you fall into debt in this area-then you  have to take your place with the other "slaves-to-their Clients"- within the legal profession.Ingore this advice at your own peril.

TIPS FOR NEW LITIGATION LAWYERS- SEEM DUMBER THAN YOUR MARK

No one likes  feeling stupider than the next person- and this is especially true for the Malaysian lawyer .This knowledge gives you tremendous room to maneuver.The trick, then is to make the other senior lawyer look smart-and not just smart, but smarter than you are.

FOUQUET- LAWYER IN THE ANCIENT ROMAN COURT

You  cannot succeed at litigation unless you are good at deception. In the midst of a legal battle you must be able to lure people into traps they cannot get out.For this, you must take a distance approach to yourself- to be many different people  wearing the mask that the day and the situation require with different lawyers and their dishonest witnesses.Playing with appearances and mastering the art of deception in the Law  Courts  are among the most aesthetic pleasures in my life.When you are about to give the finishing blow to a very angry opponent-  do not raise your voice to match his- reduce it to a gentle whisper- he is already barbeque meat.                                            Fouquet
                                                                               
The legal effect:- the earlier defence that their Client is of a quiet and gentle disposition has crumbled to the dust.Counsel can now sit down with the words " No more questions, My Lord."

Whispers from the Ancient Courts

GUIDANCE FOR FUTURE LAWYERS

TIPS WHILE CHAMBERING [ office politics]

1.NEVER OUTSHINE YOUR SUPERIORS.

 Always make the lawyers  above you comfortably superior. You are a new arrival- and your new colleagues will remind you (not openly)of  your position in a thousand subtle ways in the office.In your desire to please or impress them do not go too far in displaying your intellectual knowledge or talents OR you might accomplish the opposite - trigger off fear and insecurity.If you become the victim of your colleague's envy-, remember this-you have only yourself to blame. Make your superiors appear more brilliant than they are and and  no one will bother you. In fact sometimes they will come around to see how you are coping.
2. NEVER APPEAR TOO PERFECT
Appearing better than others is always dangerous, but most dangerous of all is to appear to have no faults or moral weakness.Envy creates silent enemies.It is smart to occasionally display defects and to admit to harmless vices in order to deflect envy and appear more human and approachable.Only the gods and the dead can seem to be without any problems. On the other extreme- don't appear stupid in the office. They will use you like the  office help- "photostat or type this or that..."tah pau lunch for me"... and the list is endless.

APPEARANCE IN COURT.

1. Always check your Case No. with the Court interpreter first whether it is listed. Then you can go and sit down and wait for the Court to begin session. Do not be in a dreamlike state when Court is in session. When your Case no is called- be ready with your file papers.[ The Judge may want to ask you some questions, and if you start fumbling with your file then- it is a sure sign of an imcompetent, ill prepared lawyer]
 Two Situations

(a) When the Defence lawyer is present. This is how you must adddres the Court  [ contoh]

" Dengan Izin Yang  Arif . Ali Imran untuk Pihak Plaintif dan rakan bijaksana saya Encik  Jeganath untuk pihak Defenden. Hari ini sebutan pertama. YA. Saman telah diserahkan  pada ...................dan Afidavit Penyampaian taleh difailkan pada .................Pihak Defenden telah memasukkan Notis Kehadhiran. Hari ini kami memohon dari Mahkamah ini satu tarikh untuk memfailkan 'Ikatan Dokumen' ( or untuk arahan mahkamah- Summons for Direction)


From the Bench: Yang Arif directs Court Interpreter..................... Court Interpreter gives you the next date.
(b) When the Defence is not present and not filed anything.

 " Dengan Izin Yang  Arif . Lee Kar Kheng  bagi Pihak Plaintif  dan saya percaya pihak Defenden tidak menghadiri sebutan ini.Saman telah diserahkan  pada ...................dan Afidavit Penyampaian taleh difailkan pada .........Memandangkan pihak Defenden tidak menghadiri untuk menjawab atau mempertikaikan tuntutan ini, saya memohon dari Mahkamah yang mulia ini untuk merekodkan satu Penghakiman Ingkar terhadap pihak Defendan.

From the Bench the YA will order- Penghakiman Ingkar.   

Be ready with a draft copy of the Penghakima Ingkar and give it to the  Court interpreter.You will get the Sealed Order  between 3-4 weeks. If you have not prepared a draft copy,then  you have to go back and draft it and come back another day to file it at the Courts Registry.( Court Interpreter will not accept) Time -3- 6 months.

From the desk of VJ

CONSTITUTIONAL REVIEW-[ HOW TO EXPLAIN THIS CONCEPT]

My Dear Students- the future Peguambela & Peguamcara of Malaysia, I have written this article only as a guideline. Do not attempt to "copy & paste" as it  called plagiarism and to say the least- very unprofessional. Happy studying. Vijay

Introduction
In most of the Commonwealth countries,the Constitution is the supreme law of the land. ( With the exception of England, Israel & New Zealand) which does not have a written constitution, but only statutory legislation and case law). In the Malaysian context, Art 4 (1) of the Federal Constitution states in no uncertain terms that the supreme law of the land  is the Federal  Constitution .

As  Malaysia cleared itself  of  British  rule and their influence,and to safeguard  itself from any possible ambiguities, interpretations or whatever British influence they left behind, the Federal Constitution went on to state that " any law passed after Merdeka which is  inconsistent with the Constitution, is to the extent of the inconsistency null and void. And Article 162(6) further provides that a Court is empowerd to amend any pre-Merdeka law which is inconsistent with the Constitution to bring the relevant law in line with the Federal Constitution.

But the matter is far from simple- in fact, it is very complex arena. This is due to the  doctrine of Dicey.Albert Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. He laid out his three principles of the rule of law in his 1885 book An Introduction to the Study of the Law of the Constitution . Briefly summarized, they are as follows:-

1.everyone is equal before the law
2.no one can be punished unless they are in clear breach of the law
3.there is no set of laws which are above the courts

The Conflict- Constitutional Review
Although few would argue with the first two principles, the third principle is extremely contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the courts. But Dicey has stated that  there is no set of  laws which are above the Court!"
 
It is proposed to discuss the third point of Diceys legal proposition as it has presented a great difficulty- as it has reference to Constitutional review. The Supremacy of the Parliament and the Constitution are intact but the  Courts are the final interpreters of the law even to the extent reviewing the decisions of the elected Executive- that all  Goverment bodies act within the framework of the law.
 
Constitutional Review- its meaning within the legal context.
So when a citizen  of the Federation claims that his fundamental rights have been affected in some way by the Goverment or a tribunal he has to take his case  to a Court of law to challenge the Goverments's decisions that has affected him.( Sugumar Balakrishnan v Pengarah Imigresen Negeri  Sabah  & Ano [1998] 3 MLJ 289) In this context the Court has to hear the case and to decide as to whether  his Constitutional rights have indeed been violated. In other words - has the citizens rights been affected in any way that is  guaranteed in the  Federal Constitution? There is no such thing as an uncontrolled power .When the Judiciary is engaged in reviewing the decisions of Goverment bodies or tribunals, the process is also known as Judicial review.

 In Pangarah Tanah & Galian v Sri Lembah Enterprise[1979] 1 MLJ  the Court that,
" Every legal power must have legal limits ...otherwise there is a dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression.'

Judicial Review

There are many ways that a citizens  fundamental right can be affected. Since the scope of the question is wide, it is proposed to discuss the different contentious areas that has appeared before the Malaysian Courts. It seems appropriate to quote here the words of  Hishamudin Yunus J, in the case of Abdul Ghani  Haroon v Ketua Polis Negara & Anor [2001] 2 CLJ , a case relating to habeas corpus.

"The police officers responsible for the detention of the applicants must wake up to the fact that supreme law of this country is the Federal Constitution and not the ISA."

 Students need to explain the brief facts and the outcome of these cases.
Constitutional Review  of rights relating to religious freedom

Fatimah bte Sihi & Ors v Meor Atiqulrahman [2005] 2 MLJ 25

Constitutional Review  of  arrests and detention

Karam Singh v  Menteri Hal Ehwal Dalam Negeri Malaysia 2 MLJ 129 [1969]

Constitutional Review of  decisions of tribunals

Beatrice Fernandez v Sistem Pernerbangan Malaysia [2005] 2 CLJ 713

Constitutional Review in respect of   Goverment decisions


Minister of Home Affairs v Persatuan Aliran Kesedaran Negara [1990] 1 MLJ 351

[ students must elaborate on more cases above]

Judicial Control

Judicial control over the legality of  administrative actions may be excercised in the following ways. Briefly stated if  any Goverment body exceeds the jurisdiction  coferred on it, an action my lie by way of judicial review.

Inherent Supervisory Jurisdiction of the Court.

Traditionally the grounds of review those  laid down in Associated Provincial Picture Houses v Wednesbury Corporation.These grounds have since been repostulated by the House Of Lords in the case of CCSU as procedural impropriety,irrationality, illegality with proportionality as an additional ground of review in the future. These principles were fully endorsed by the Malaysian Courts in the following cases:-

Minister of Home Affairs v Kesatuan Aliran Kesedaran Negara [1990] 1 MLJ , Ramachandran v Industrial Court of Malaysia.[1997] 1 MLJ145

 Powers of the Federal Court under  Article 128 of the federal Constitution.

The FC has the jurisdiction to determine the validity of any State law or Federal law on the ground that the impunged law was ultra vires the law making  power of the State

Article 130- Read this section

Section 84 CJA 1964- important questions of law can be referred to the Federal Court for a final interpretation and ruling.

Furher the Federal Court has the powers under Rule 37 of the Rules Of the Federal Court 1995 in very limited and exceptional circumstances  to re-open, rehear and re-examine its previous judgment, decision or order which has been obtained by fraud or suppression of material evidence or due to lack of quorum or as a result of the clear breach of the law  or where bias has been established.

Dato Seri Anwar bin Ibrahim v PP [2004] 3 MLJ 517 FC 

Grounds of  Judicial  Review : CCSU and the position thereafter

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case was an English administrative law which held that the Royal Prerogative was subject to judicial review. In 1984 the British government under Margaret Thatcher decided that employees of the Government Communications Headquarters (GCHQ) would not be allowed to join a trade union for national security reasons. This was enforced through an Order-in-Council, an exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring this matter to court through judicial review, first to the High Court of Justice, which ruled the Order-in-Council was invalid. The case then went to the Court of Appeal, which decided that the national security issues trumped any problems of propriety.


From there the case went to the House of Lords, where it was decided on 22 November 1984. In their decision, the Lords found that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case served to identify that the application of judicial review would be dependent on the nature of the government's powers, not their source

Note:- students need to point out that this case was the first to encroach on the Royal Prerogative. Prior to this case prerogative powers were not subject to Judicial Review.


Procedural Impropriety
 This refers the breach of any of the rules of natural justice.

Sarawak Electricity Supply Corp v Wong Ah Suan [1980] 1 MLJ 65

Irrationality

It is a decision that no reasonable authority or person will ever make that kind od decision.  -also known as "Wednesbury unreasonableness."

Kruse v Johnson [1998] 2 QB 91
Air India v Nergesh Meerza 1981 SC

Illegality

refers to abuse  of discretion -

male fide- Kamari bin Kassan v MMA [2000]  5 MLJ 84
ignoring relevant considerations- Tan Tek Seng v SPM & Anor [1996] 1 MLJ  261 (CA)
taking into account irrelevant considerations- Padfield v Minister of Agriculture & Fisheries [1968] 1 All ER 694
improper purpose- Pengarah Tanah &  Galian , WP  v Sri Lembah Enterprise [1979] 1 MLJ 135 (FC)
non- exercise of discretion- P Patto v CPO, Perak [1986] 2 MLJ 204

Proportionality 

briefly stated- this refers to prohibiting excessive punishment or fine

R v  Barnsley MBC , exp Hook [1976] 1 WLR - excessive punishment
R v Northumberland Compensation Appeal tribunal ex parte Shaw [1952] 1 All ER 122-excessive fine

 Observation of the Malaysian position.
From the above discussion, it appears that Malaysia is still caught up with the legal principles that were formulated in Associated Provincial Picture Houses v Wednesbury Corporation.  But the glaring fact is this- Wednesbury's case relied upon cases that were decided somewhere in the early 1900's- prior to the two major world wars!!!! Whereas other Countries have moved on with  the times, Malaysia is still caught up in the time warp of the first world war.  A further point to note is this- the legal position  in reference to Judicial review is rather narrow and most three of it is phrased negatively. These grounds are narrow and rigid  in terms of evaluating the decisions of inferior tribunals.

Take for example-the  decisions of tribunals may be reviewed on the basis of errors of law in the Anisnimic sense. Anisminic v Foreign Compensation Commission [1969] 2 AC 147 ( this landmark case is said to have abolished the distinction betwen errors of law that went to jurisdiction and those that did not)

This has been the legal position ever since the case of Syarikat Kenderaan Melayu Kelantan v Transport Workers Union [1995] 2 MLJ  317. Generally, all errors of law now go to jurisdiction and hence open to judicial intervention  on the application of  Judicial review.

It is submitted that it time for the  Malaysian legal system to sttudy from other systems and perchance emulatate those systems. Most notably the administrative law in South Africa is more dynamic  when compared to to other constitutional systems of the world . In year 2000 the SA Parliament enacted the Promotion of  Administrative Justice Act 2000 with a view to revamping the Judicial review process.This happened in the post apartheid era.One of the most powerful  Articles in the SA Constitution is the entrenchment and safeguarding of fundamental rights in Article 33.Whereas  in Malaysia procedures realting to fundamental rights are only found in statues (Criminal Procedure Code, Internal Security Act) in Soth Africa- they are safeguarded in the Contitution itself.

Of course, those safeguards became imperative, given the bloody history of the nation  it is submitted that Malaysia need not wait for a gross violation of human rights before it  decides to act.The system in India has been updated  too,  prior to which India had one of the worst violations of human rights in the world.  Article 226 is the cornerstone of human rights in India.

Conclusion

 The inquest into the mysterious death of Mr. Teoh and the Court's verdict have now been broadcast around the world.It is submitted that Dicey's third concept that the Courts are the final arbiters of the law has now become even more imperative but in the Malaysian context it has become somewhat of a joke. The Judiciary is the only avenue to safeguard the fundamental liberties of the citizen in any jurisdiction- by way of constitutional review of the decisions of  Goverment bodies- as a defender of the rights of its citizens.But if the Courts become weak and are unable to fullfill its mandate then a whole revamp of the system becomes necessary.

As the famous English maxim put it- "Justice must not only be done, it must seem to be done." There are already winds of dissatisfaction blowing against the Judiciary and the Executive- it is the authors view that the next election will have even more surprises than the previous one.The  author of this paper concludes this paper with a famous quote again from,

Pengarah Tanah dan Galian,WP v Sri Lembah Enterprise "Unfettered discretion is a contradiction in terms.....Every legal power must have legal limits,otherwise there is a dictatorship....The Courts are the only defence of the liberty of the subject against departmental aggression"
...............................................................................................................................................
( For students who want to score above average answers)
Proposols for Reform
( if any student wishes to earn an above average mark- fill in the gaps here:-Clue- research and imagination must go together. Bye.)
HUMAN RIGHTS COMMISSION OF MALAYSIA ACT 1999PART III --POWERS OF INQUIRY OF THE COMMISSION

An Act to provide for the establishment of the Human Rights Commission of; to set out the powers and functions of such commission for the protection and promotion of human rights in Malaysia; and to provide for matters connected therewith or incidental thereto:-Commission may inquire on own motion or on complaint

12. (1) The Commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of person.

(2) The Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which---
(a) is the subject matter of any proceedings pending in any court, including any appeals; or
(b) has been finally determined by any court.

(3) If the Commission inquires into an allegation under subsection 12 (1) and during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the Commission shall immediately cease to do the inquiry.

Human Rights vs. National Security

 Human Rights vs. National Security [ for eg.National SecurityAnti-terrorism legislation. Within the Malaysian context- Emergency Regulations & Internal Security Act]

With the exception of non-derogable human rights (international conventions class the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws as non-derogable),the UN recognises that human rights can be limited or even pushed aside during times of national emergency – although “ the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure ”
United Nations.

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.

CONSTITUTIONAL REVIEW

 It has become plain now that the Professor would like to see students write on at least  one current affair in the Malaysian Judiciary.  Just a suggestion below but remember you must cover  all other areas reasonably well before you  start commenting on current affairs. A clue here- was justice done in Teoh's case? It can go either way - 1. was there a proper investigation? 2.was the outcome legally satisfactory?  Give your views as a law student and refrain commenting political or moral opinions.( for eg. life is so unfair... God  will send those murderers  to hell ... OR WORSE STILL ...the Judge must be shot!!! )    Remember you are in a law class- not a philosophical class.)

Teoh’s family

The coroner’s verdict today only succeeded in prolonging the nightmare for the Teoh’s family members who were already traumatised by the tragedy. In the week of his untimely death, Teoh was to have registered his marriage with his then two-month pregnant fiance Soh Cher Wei. She is now a single mother to a newborn son.

WINNERS

Coroner Azmil Muntapha Abas

Azmil fared considerably well despite being in the hot seat in presiding over the highly-publicised inquest. The coroner notably cut through all the fluff in the case, ignored political considerations and delivered a decision that, while inconclusive, had been based on all the evidences provided before him during the inquest.

Prime Minister Datuk Seri Najib Razak

The Prime Minister kept out of the political rhetoric that Teoh’s death had generated but scored points when he gave his word that he would leave “no stone unturned” in the case.

Questions remain now however on whether the premier will honour his words on the formation of the Royal Commission of Inquiry to further probe the incident. He had earlier claimed that the Cabinet had agreed to forming the RCI.

Thai pathologist Dr Pornthip Rojanasunand

Already an acclaimed and well-celebrated forensics expert, Dr Pornthip will always be remembered for the stir she had caused when she first suggested the possibility that Teoh’s death could have been caused by murder.

She was also the star of the trial particularly when examined by MACC’s Abdul Razak where she questioned the lawyer’s credentials and defended her impartiality in the case by saying:  “You have to understand. I work for the rights of the dead, not for the Selangor, or for the Malaysian or for the Thailand governments.”

THE MOST FAMOUS PERSONALITY FOR THE PROSECUTION

MACC prosecution chief Datuk Abdul Razak Musa

Probably the most famous personality from the inquest is Abdul Razak who had suggested that Teoh could have strangled himself and even proceeded to demonstrate the act to the court.

His antics were uploaded on the Internet and within minutes, the senior lawyer’s stand-off with Dr Pornthip during cross-examination earned the former much ridicule from online viewers from around the world.

In one comment on broadcast site YouTube.com, a viewer suggested that the video be used in law schools as lessons on “how to fail your law exam”.

THE BIG QUESTION :-If a finding of a tribunal is perverse, what is the appropriate action that needs to be taken by the affected party?

[ Just a little reference to the procedure relating to inquests S 339, 341 & 323 Crminal Procedure Code- do not elaborate too much on this - this is an AL paper)

CONSTITUTIONAL REVIEW-DICEY

A.V Dicey comment on the rule of law  [ students intending score above average marks on Constitutional Review) need to revisit Dicey's concept.- especially the third principle- Judicial Decisions

Dicey summarised the rule of law under three heads.

1.No man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law.

 2.Secondarily...No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land.

3.There is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person.

A SMALL CONVERSATION IN THE UM GYM

PG- here are some new material on AL for an update.
VJ- Thanks PG-I will read it......just a small question... Constitutional Review, in your mind, does it refer to Constitutional Amendments by Parliament or the Courts reviewing the decisions of tribunals and Govermental bodies??

PG-Of course, it refers to Courts reviewing Goverment decisions.

(After that we discussed Lee Kwan Woh's case ( fundamental liberties & right to fair hearing - a case that comes under the purview of Constitutional review).

PS. Before I left I also learnt how to do a flying kick that can take down 2 people at once. SO STUDENTS WHO FAIL AL BETTER WATCH OUT!!!

S33 SOUTH AFRICAN CONSTITUTION

33. Just administrative action

(1)Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.


(2)Everyone whose rights have been adversely affected by administrative action has the right to be given
     written reasons.

(3)National legislation must be enacted to give effect to these rights, and must

(a)­ provide for the review of administrative action by a court or, where appropriate, an independent and
     impartial tribunal;

(b)impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration.

For UM students exams purposes, note that although Article 5 of the Malaysian  Federal Constitution  safeguards one aspect of the citizens fundamental liberties,it appears only to be drafted in general terms. The SA Constituion is more extensive and specific. Another point to note is that although the Malaysian case law makes reference to "Illegality,procedural impropriety , irrationality and proportionality" (origin from CCSU case) in respect of JR- all these factors are framed in the negative sense- whereas the SA Constitution is framed in the positive sense-(LAWFUL,REASONABLE AND FAIR) ( will be discussed in class next week) -- Cheers and study well.--VJ

CLASS TUTORIALS - 2 [ we have gone through this in class before]

About nine months ago, some twenty farming families had their crops destroyed and livelihood deprived when they were forcefully evicted from their farms which they had occupied and toiled for the past 50 years. The affected farms occupied an area of agricultural land measuring some 20 hectares. Each farming family occupied about one hectare of land. The land is situated along Batu 9, Jalan Merbuk in the district of Gong Badok, Kelantan. The raid was conducted by some officials and staff from the local Land Office with the aid of some police officers.

The affected land was quickly cleared for a housing project for the rich. The project is undertaken by a government-linked company.

The affected farmers stay nearby in Kampung Gajah. The village headman, Mr. K, informed the press that the affected farmers suffered a combined estimated loss of some RM150,000 arising from the crops and properties destroyed.

During the raid, there was a tense standoff between the affected farmers and the raiding party. The farmers tried to negotiate with the Land Office officials, but the officials concerned were in no mood to compromise. They moved in quickly by force. They destroyed everything including shelters and farm equipments. Also present in the raiding party were some heavily armed policemen. They threatened the farmers with arrest and detention if they resisted. The village headman, Mr. K, was taken into custody during the raid when he interfered with the demolition work.

According to Mr. K, prior to the ugly incident, a huge notice board was erected at the affected land notifying the farmers of the need to move out of the land quickly. This happened a couple of months before the raiding party descended on the farms.

Prior to the demolition, the Land Office, as usual, collected the Temporary Occupation Licence (TOL) renewal fee from the affected farmers. But they were told to wait for the approval because their applications for renewal were pending consideration by the relevant authority.

The plight of the farmers began some two decades ago when there were occasional rumours about acquisition of the land concerned. Worried about the loss of livelihood and the little piece of land where each toiled for his daily livelihood, the farmers’ representatives began visiting the Land Office and also meeting with their elected representatives. Each time they were told to wait and be patient. But they did not give up. They continued the process of engaging the relevant authorities from time to time lest they forgot about their plight. Over the years, the affected farmers had, through their village headman, applied several times for land titles or at least long leases with the knowledge and support of their elected representatives. Election after election, they were told and reminded to vote for the Barisan Nasional component parties’ candidates, which they faithfully complied, on the promise that their plight would be looked into and resolved. But the promises remained unfulfilled.

After the eviction, the affected farmers desperately pleaded with the authorities, including their elected representatives, to be relocated to any site nearby in the district where they could continue to earn their livelihood as farmers. Unfortunately, their pleas fell on deaf ears. Nearly all the affected farmers are jobless after the eviction.

Frustrated with the fruitless process of engaging the authorities and fully aware of the total lack of commitment and sincerity on the part of the authorities concerned, the affected farmers turned to the High Court and commenced a class action against the Land Office and the State Government in tort and trespass and also for breach of promises. They also claim damages for loss of livelihood as well as any other appropriate consequential relief. Also included in the application is a prayer for an order to be issued to the State Government to relocate the affected farmers to a suitable piece of land in the district where they reside so that they can continue to earn their living as farmers.

The State Legal Adviser applied to the court to strike out the application of the affected farmers on the ground that it has no basis in law. This is because TOL licensees acquire no interest whatsoever in the land they occupy. They must gracefully leave the land they occupy once the licence expires. He also seriously doubted whether the applicants have any locus standi to bring their dispute with the Land Office to the High Court.

Advise the affected farmers accordingly.

(30 markah/marks)

UM CLASS TUTORIAL- CASE STUDIES 1

Buletin berita berikut telah dilaporkan dalam suatu surat khabar tempatan baru-baru ini. Ia berbunyi seperti berikut:

“UNIC, sebuah syarikat yang dipertugaskan untuk mengendalikan perkhidmatan bas di kampus UUM, menaikkan tambang pada 17hb Jan, 2009 dan mengenakan suatu peraturan baru yang tidak membenarkan pelajar-pelajar memindahkan baki kredit ke semester hadapan.Choo dan kawan-kawannya (pelajar-pelajar di UUM) berasa bahawa yuran-yuran baru itu adalah tidak munasabah. Mereka juga tidak puas hati bahawa UUM tidak meminta pandangan pelajar sebelum menandatangani perjanjian dengan UNIC.

Choo menganjurkan suatu petisyen secara online pada 12hb Jan, 2009 dan berjaya memungut sebanyak 509 tandatangan daripada kalangan pelajar-pelajar. Lebih ramai lagi mungkin turut serta jika mereka menyedari tentang kempen tersebut.

Seorang jurucakap untuk pelajar-pelajar tersebut mengatakan bahawa apabila kumpulan pelajar tersebut berjumpa dengan Timbalan Naib Canselor UUM (Hal Ehwal Pelajar dan Alumni) pada 19hb Jan, 2009, beliau berjanji memenuhi beberapa desakan mereka.

Akan tetapi, Choo menerima sepucuk surat tunjuk sebab beberapa hari kemudian daripada lembaga tatatertib UUM, menuduh beliau kerana menganjurkan petisyen tersebut secara haram.”

Choo bingung atas tindakan tatatertib yang diambil oleh pihak universiti terhadapnya. Nasihatkan beliau dengan sewajarnya.

..........................................................................................................................................
The following news bulletin was reported in a local newspaper recently. It reads as follows:

“UNIC, the company in charge of the bus services in UUM, increased its fare on Jan 17th, 2009 and imposed a new rule that disallowed the students from transferring their remaining credit to the next semester.

Choo and his friends (who are students at UUM) felt that the new fees were unreasonable. They were also not pleased that UUM had not sought the students’ views before signing the agreement with UNIC.

Choo organised an online petition on Jan 12th, 2009 and managed to collect 509 signatures from among the UUM students. Many more could have joined in if they had been aware of the campaign.

A spokesman for the students said that when the group met the Deputy Vice-Chancellor (Students Affairs and Alumni) of UUM on Jan 19th, 2009, he promised to meet some of their demands.

However, Choo received a show cause letter a few days later from the UUM disciplinary board, charging him with organising the petition unlawfully.”

Choo is at a loss over the disciplinary action taken by the university against him. Advise him accordingly.