Awi v Government of Malaysia

In the present case before us, Awi who is my client is the plaintiff. Awi is from a small town
Lojing, Kelantan who was alleged to be having firearms with him during a raid conducted by
the police. He has been charged under the Firearms Act 2018 and has been given a death
penalty.
There are two issues before us in this case which are :
1) Whether the death penalty given to Awi is in breach of Article 5 of the Federal
Constitution
2) Whether Awi as a matter of law hold the land in question under a customary
communal title

1st Issue

The main issue here is whether the death penalty charged against the plaintiff is in violation
of Article 5 of the Federal Constitution.

[1] It was the clear intention of our constitution framers that the Federal
Constitution should be the fundamental law of the land. Thus Article 4 was enacted to declare
that the Federal Constitution is the supreme law of the Federation and all laws passed
thereafter which are inconsistent with it shall to the extent of the inconsistency be void.

[2] However, the question is to what extent has performance matched promise?
Is the Federal Constitution today a living dynamic document that guarantees
the rule of law to all persons and affords them the fundamental liberties
guaranteed by it? As Professor Jain observed ‘a country may have a constitution but not
necessarily constitutionalism’.

[3] Liberty of the Person in all collections of human rights over the world, rights to life and
personal liberty are the most precious among all. The deprivation towards it, will affect the
whole structure of freedoms. Even though there must be restrictions to the rights, however,
the freedom should be as wide as possible. In Malaysia, Article 5 of the Federal Constitution
provides rights to liberty of the person; however, some defects in it should be reformed by
adopting the principle of constitutionalism.
[4] Article 5 (1) of Federal Constitution, can be divided in to 2 parts. First, “no person shall
be denied of his personal liberty.” This limb protects every individual’s personal liberty.
Person in this subsection refers to all persons, not just citizens. It may even include artificial
person such as ships and aircraft which law can be applicable towards it. While, personal
liberty as interpreted in the case of Aminah v Superintendent of Prison, as long as there is no
arrest or detention, there is no deprivation of life and personal liberty. This defines the
narrowness of Malaysian law where it only refers to arrest and detention as a deprivation of
liberty.

[5] Secondly, the phrase, ‘save in accordance with law’ justified deprivation if law allows it
to be. The word ‘law’ than can be interpreted differently. First, ‘law’ could mean any statutes
passed by parliament regardless of its reasonability as long as it complies with the law
making procedure. Secondly, ‘law’ does not mean any law passed by parliament but it refers
to a higher standard of due process and natural justice which conform with the principle of
constitutionalism. Article 5 should be implied into statues and the principle must also be
applied to preventive detention laws under Article 149 and 150. As in Aminah’s case, Article
5 is meant to apply to arrests under any law in force in the country.

[6] Besides, in Andrew s/o Tamboosamy v Superintendent of Pudu Prison, Suffian LP states
that, any form of detention does violate the Article 5 and power given by law to detain must
be interpreted strictly. However, in the case of Kam Teck Soon v Timbalan Menteri Dalam
Negeri, the court held Article 5 does not apply to laws passed under Article 145 and 150. In
interpreting Article 9(1) of the Constitution of Singapore which is similar to Article 5(1) of
FC, Privy Council in Ong Ah Chuan v PP and Haw Tua Tau v PP defines ‘law’ to a system
of law which incorporates fundamental rules of natural justice. It means if the law did not
conform to the standard, court have to strike off the law. However, in some Malaysian court
decision regarding Article 5, it refers merely to enacted laws and not to general concepts of
law such as natural justice.

[7] As in Che Ani bin Itam v PP and PP v Lau Kee Hoo, the mandatory life sentence under
Sec. 4 Firearms (Increased Penalties) Act and the mandatory death sentence under Sec. 57(1)
of Internal Security Act (ISA) is not inconsistent to Article 5(1).

[8] In Che Ani bin Itam v Public Prosecutor, the constitutionality of the mandatory life
sentence under the Firearms (Increased Penalties) Act 1971, s.4, was challenged as violating
Article 5(1). Raja Azlan Shah LP, delivering the judgment of the Federal Court, referred to
the principle laid down by the Privy Council as “now firmly established”, even though it ran
counter to previous Malaysian Authority. It is to be hoped that this will continue to be the
view of the Malaysian judiciary, otherwise Article 5(1), already inadequate to protect
personal liberty, would become mere verbiage

[9] Even, Ajaib Singh in PP v Yee Kim Seng states that the court are obliged to administer
the law as it is found in statues book and whether it is morally right or wrong is a matter of
parliament to decide. In comparison to the European Convention of Human Rights (ECHR),
Article 1 of the 13th Protocol abolishes death penalty. While Article 2 of the ECHR gives
absolute right to life with only 3 exceptions which results from the use of force (1) in defence
of any person from unlawful violence, (2) in order to prevent the escape of a person lawfully
detained and (3) in action lawfully taken for the purpose of quelling a riot.

[10] One of the most important steps a country can take to secure human rights for everyone
under its jurisdiction is to abolish the death penalty be removing the penalty from its laws. If
the country also prohibits the death penalty under its constitution, abolition becomes even
more secure.Out of the 57 countries in the world which have to date abolished the death
penalty for all crimes, 24 have gone on to prohibit the death penalty in their constitutions,
often on human rights grounds.
[11] In legal systems where the constitution is the supreme law of the land; other laws must
not conflict with it, and it is harder to amend than other laws. Enshrining the abolition of the
death penalty in such a constitution is a way of solidifying abolition by establishing an
additional legal basis which can serve as an impediment to any hasty attempt to bring the
punishment back. Often a constitution can be seen as the legal embodiment of a country’s
highest values, extending human rights guarantees to everyone in the country’s jurisdiction.
By enshrining abolition in its constitution, a country shows the importance it attaches to the
decision it has taken to abolish the death penalty.
[12] Therefore, it is my view that the death penalty imposed upon Awi is contradicting with
Article 5 of the Federal Constitution.
2nd Issue
[13] The plaintiff in this case claims that the land belongs to them under a customary
community title. Thus, the Land Acquisition Act 2018 cannot be imposed against them as it
is against their fundamental liberties.
[14] The customary land rights of the Orang Asli have received judicial recognition in a
series of cases. The courts, beginning with the decision of Adong bin Kuwau v Kerajaan
Negeri Johor has established the common law principle of recognition of native title or land
rights, not only of the Orang Asli in Peninsula Malaysia but also the natives of East Malaysia.
It has been affirmed that the Orang Asli have common law rights to their ancestral lands that
they have occupied since time immemorial. These Land rights are proprietary rights with full
beneficial interests in, and to, the land. The land is therefore inheritable, that is, capable of
being passed down from generation to generation.
[15] The most relevant provisions of fundamental liberties that would affect any law
providing for the protection of orang asli customary land rights are Article 5 (particularly, the
right to life), Article 8 (equality before the law) and Article 13 (right to property). These
provisions shall be examined in turn and in the light of other relevant constitutional
provisions. In the words of Gopal Sri Ram JCA (as he then was), 'when interpreting other
parts of the Constitution, the court must bear in mind the all pervading provision of art 8(1).
That article guarantees fairness of all forms of state action'.
[16] The Malaysian courts have described the orang asli as enjoying 'a special position' under
Article 8(5)(c). In holding that the state and federal governments owed a fiduciary duty to the
orang asli claimants, the court of first instance in Sagong bin Tasi & Ors v Kerajaan Negeri
Selangor & Ors held that Article 8(5)(c) is an exception to the equality provision in Article 8.
[17] On appeal, Gopal Sri Ram JCA favoured the liberal interpretation of the Land
Acquisition Act 1960 by the lower court to award compensation for loss of customary land
based on market value. His Lordship said that this approach was merely to give 'full effect to
Article 8(5)(c) of the Federal Constitution which sanctions positive discrimination in favour
of the aborigines'. The courts in these cases are fortified by the views of other higher courts
that a Constitution, being a living piece of legislation, must be construed broadly and in a
pedantic way.
[18] Notwithstanding the judicial method used by the courts, Article 8(5)(c) may be
construed narrowly if it is regarded as a provision derogating from the guaranteed rights
contained in Article 8. There is ample authority to show that provisions of this nature are to
be given a strict and narrow approach, rather than a broad construction.
[19] In Sagong bin Tasi v Selangor, the trial judge held that Article 8(5)(c) is an exception to
the equality provision in art 8. Unfortunately, the court proffered no explanation as to why
Article 8(5)(c) was considered an exception. As there are no local cases on this point, Indian
cases may be instructive in determining whether Article 8(5)(c) is indeed an exception to
Article 8(1). The persuasive value of Indian cases in interpreting the Malaysian Constitution
has been acknowledged by the Malaysian courts. In Karam Singh v Menteri Hal Ehwal
Dalam Negeri (Minister of Home Affairs), Suffian LP held:

Judgments of the Indian Supreme Court are of great persuasive value here,
particularly on the Constitution, because to a great extent, the Indian Constitution
was the model for our Constitution.

[20] The legal position regarding the application of Indian cases to constitutional
interpretation in Malaysia has been aptly summed up by Abdoolcader J:
Our Constitution ... has (have) been primarily drawn from Indian sources, and
accordingly decisions of the Supreme Court of India, and indeed also the High
Courts of her several states, are of great persuasive authority here upon the
borrowed provisions and will be entitled to great weight in interpreting and
considering the relevant local statutory counterparts, subject of course to such
modifications as may be necessary owing to variation in language or context.
The position would therefore appear that where there is a dearth of authority, the
Indian decisions are entitled to the greatest respect and will normally be followed
unless the court has cause to disagree with reasoning of any such decision.
[21] In addition to their constitutional land rights, indigenous peoples’ customary land
rights receive some recognition in statutes namely the Federal Aboriginal Peoples Act
1954. But before looking at the statutes’ provisions, it is important to note that all
indigenous communities in Malaysia have customary rights in land and that an
elaborate body of customs and conventions, termed adat, governs these rights.
[22] Therefore, based on previous decisions by judges, the plaintiffs are entitled to the
land as they have been living there for many years and taking the land away would be
depriving them from their basic needs. Thus, this would be violating Article 8 of the
Federal Constitution.