TUTORIAL QUESTIONS

1) Briefly explain the various rights provided under the European Convention of Human Rights.

Answer:

Introduction;

- Why protect HR? to ensure arbitrariness and inequality not procured during governing
process
- What is ECHR? –a treaty of Council of Europe; organization of 21 member states;drafted
and signed in 1950 enforceable in 1953
- Foundation for Human Rights Act 1998

Body

- Basically have 3 sections; Part I, Part II, Part III

- However the most important Part is Part I; dealing with Rights and Freedom.
- Part I have 18 provisions. – some rights are specific, many are in line with UNDHR
- Among the important provisions ;
o Article 2; Right to Life
▪ Life protected by law
▪ No one should be deprived from this right except execution by penalty of a
court
▪ Interestingly, also highlighted circumstances where the rights is not
deprived;
● In defence of any person
● In order to prevent escape of lawful arrest
● Quelling riot or insurrection
▪ Reflection of Article 5 in Malaysia
o Article 4; prohibition of slavery
▪ No one should be a slave or servitude
▪ No force labour
● Exclusion:
o Detention
o Military service
o emergency
o normal civic obligation
▪ Similar to Article 6 of FC, but more comprehensive
o Article 5 ; Right to liberty and security
 ▪ No one should be deprived from liberty except (among them) :
● Lawful detention after conviction
● Lawful detention because refuse to comply with court order
▪ Should be informed promptly; like s.5
▪ Should promptly bring to judge
o Right to fair trial – Article 6; new; we don’t have specific rights in the consti:
▪ We used to have ISA, detention without trial
o Article 10; Freedom of Expression
▪ Limitation; state still can issue license – regulate
▪ Restriction allowed
● Health, moral
● Public safety
● Protection of other reputation ; harassment; defamation
o Article 11 – Freedom of assembly (must be read together with A.10)
▪ In Malaysia its under one Article – A.10, in ECHR, separated
▪ Can place restrictions ; health, morality etc
o Article 12 – Right to marry
▪ Gays? Homosexuals?
▪ Subject to National law; not absolute
o Article 14 – Prohibition of Discrimination
▪ No discrimination:
● Sex, color, gender, language, religion, opinion, national, property,
birth
● Sexual orientation?
o Article 15; Derogation during Emergency
▪ During Emergency, can waived rights
▪ But must consistent with international law
▪ Specific, no derogation on
● Art 2 – except war
● Art 3,4, and 7
Conclusion: more conclusive; updated rights. But several not in line with UNDHR

2) Briefly explain the application of the Human Rights Act 1998 in the UK and the many problems
associated with the implementation of the Act.

Intro:
 - HRA? Adaptation of ECHR; treaty council of Europe
- Hr claim? Need to go to European court in Strasbourg
- Why HRA? Before Hr in UK poor, not constitutionally protected

Content:

- Parliamentary sovereignty; judges compelled to construe and comply with Acts of

Parliament – s3; need to make sure compatibility ; declaration of incompatibility s4/10
- The legal status is questionable – s3 compatibility
o Which one is more supreme? UK or ECHR?
o Will it can be supplement to CL?
o Will rights better protected under statute? Dicey; rule of law; better under CL
- The implementation might be problematic;
o Rights are unlimited and evolving; statute, stagnant!
o So need to amend constantly?? Costly.
- No guidelines to judges. Have the same mindset, public interest will be triumph over
personal one
o Example: limitation of Press Freedom to protect security?
o Assembly?
- UK is one of the most frequent violater of rights for ECHR in the last 50yrs, how do we
expect them to comply if they can’t follow it voluntarily?
Conclusion:

- Anything relevant
3) Briefly compare the rights provided under the European Convention of Human Rights (as
incorporated by the Human Rights Act in UK), with the Malaysian Federal Constitution. Are there
any significant differences?

4) Critically evaluate the phrase ‘save in accordance with law’ under Article 5 of the Federal
Constitution.

Intro:

- Article 5 is on liberty of person; constitutionally guaranteed

- 5 subsections
- The most relevant for this question is 5(1)
Content

- Article 5 (1) has two limbs:

o It upholds the individual’s right to freedom
o justified deprivation under the phrase … ‘save in accordance with law’.
 - How to interpret ‘save in accordance with law?’ 2 views :
o Before the case of Che Ani Che Itam v PP
▪ The interpretation was made literally; where any law passed to limit your
liberty is valid because it was passed by competent body; the Parliament.
▪ Therefore by this interpretation, the Parliament can remove your rights as
long as the Constitution is not being altered.
o Law pass must be in line with the rule of natural justice. (after)
▪ As the interpretation made in the case of Che Ani Bin Itam v PP
▪ follow Ong Ah Chuan v PP ; must follow common law principle; not
contravene with natural justice
▪ In Che Ani Bin Itam; the constitutionality of mandatory life sentence under
Firearms (Increased Penalty) Act 1974 was challenged. Raja Azlan Shah LP
held; such punishment was not “arbitrary, fanciful and oppressive – not
against natural justice.
- In PP v Lau Kee Ho the Federal Court held that the death sentence under the Internal
Security Act 1960 was not contrary to Article 5 (1) of FC.
- Generally, the courts in Malaysia have held the term ‘law’ in Article 5(1) does not import the
notions of due process; that the word ‘law’ in Art. 5(1) is any law passed by competent
legislature in exercising its jurisdiction.
- Thus in Attorney-General, Malaysia v Chiow Thiam Guan ; it was held that “the law may be
harsh but the role of the court is only to administer the law as it stands”.
- Therefore, as per Ajaib Singh in PP v Yee Kim Seng ; the law mentioned could mean any law
passed by Parliament, irrespective of whether such laws are morally right or otherwise.
Judges in Malaysia are not willing to question the morality of the laws passed by Parliament
as they feel that they are just ‘concerned with the administration of the law as is found in
the statute books’.
- As such, the term ‘law’ in Article 5(1) has no real impact as far as the testing of the
constitutionality of legislations is concerned.
- Malaysian Courts apparently preferred literal and pedantic approach on the issue.
Conclusion

-Anything relevant

5) Do you think that Article 5, as a whole, sufficiently protects a person’s right to liberty?

- Nope
- Reform should be made
o Is Article 149 for Legislation against subversion is necessary to be restrictive
mechanism
▪ Article 5(3); ground of arrest not available for arrest under A149 & 150 - In
Kam Teck Soon case
o Application of Article 150; should have check and balance
o Article 5(1)“Save in accordance to law”? Justified? Should be amended?
o Article 5(2) : Habeas Corpus: should not be ambigious