Article 5(1)Article 5(1)

‘Personal liberty’

-Right to Personal Liberty-

‘‘Personal liberty’Personal liberty’

Government of Malaysia v Loh Wai Kong [1979] 2 MLJ 33

“Personal liberty means a personal right not to be subjected to imprisonment, arrest or physical coercion in any manner that does not admit legal justification”

Loh Wai Kong applied to the Court to issue an order of Mandamus,

directing the Government to issue a Malaysian passport to him.

He contended that he had a fundamental right to travel abroad and that the refusal of a passport violated this right.

‘In construing 'personal liberty' in art 5(1) one must look at the other clauses of the article, and

in doing the court is convinced that the article only guarantees a person, citizen or otherwise, except any enemy alien, freedom from being 'unlawfully detained';

the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer;

the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and

the right not to be further detained in custody without the magistrate's authority.’

‘It will be observed that these are all rights relating to the person or body of the individual, and

do not include the right to travel overseas and to have a passport.’

‘The government has a discretion whether to issue or not to issue, delay the issue of or withdraw a passport.’

‘‘Personal liberty’Personal liberty’

Indian Constitution

Article 21. Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

‘‘Personal liberty’Personal liberty’Gopalan AIR 1950 SC 27

“…'personal liberty' means liberty relating to or concerning the person or body of the individual,

and 'personal liberty' in this sense is the antithesis of physical restraint or coercion.”

‘According to Dicey … 'personal liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.’

‘‘Personal liberty’Personal liberty’Contrary to

Maneka Gandhi v Union of India [1978] SC 597

“ The expression ‘personal liberty’ in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man ….”

‘‘Personal liberty’Personal liberty’Contrary to

Satwant Singh Sawhney v D Ramarathnam

AIR 1967 SC 1836, 1840, 1843

The citizen has a right to a passport and to refuse him one violates article 21.

The expression 'personal liberty' in Art. 21 takes in the right of locomotion and to travel abroad...

Under Art. 21 no person can be deprived of his right to travel except according to procedure established by law.

Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105

Sugumar was a Negeri Sembilan-born Malaysian who went to Sabah.

As he was not a person belonging to Sabah he was required to obtain a pass to enter and remain in Sabah. He practiced law in the state since 1985 under a work pass issued to him.

About six weeks before the expiry entry permit he was served with a notice by the Director of Immigration Sabah cancelling his entry permit.

Sugumar Balakrishnan [2002] 4 CLJ 105

The Federal Court disagreed with the Court of Appeal that the words “personal liberty” in art. 5(1) of the Constitution should be generously interpreted to include all those facets that are an integral part of life itself and those matters which go to form the quality of life.

Other matters which go to form the quality of life has been similarly enshrined in Pt. 11 of the Constitution under “Fundamental Liberties”.

Sugumar Balakrishnan [2002] 4 CLJ 105

The entry permit only allows the respondent to enter and reside in Sabah, but ipso facto does not confer any right to livelihood upon the respondent.

As the respondent was not a person belonging to the State of Sabah, he could not have been accorded any right to earn a livelihood in that state.

Sugumar Balakrishnan [2002] 4 CLJ 105

The entry permit only allowed the respondent to enter and reside in Sabah for two years lawfully and did not confer any right to livelihood upon the respondent.

Neither the personal affairs relating to his family nor his legal practice were accrued rights conferred by the entry permit.

YII HUNG SIONG V PUBLIC PROSECUTOR [2005] 6 MLJ 432

The words 'personal liberty' in art 5(1) do not I pso facto confer on a person who has been

issued with a driving licence any right to livelihood.

HARMENDERPALL SINGH A/L JAGARA SINGH V PUBLIC PROSECUTOR

[2005] 2 MLJ 542Art 5(1) confers constitutional protection of life and

personal liberty which does not extend to the applicant's right to livelihood.

‘Life’

Right to Life

Tan Tek Seng @ Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan & Anor.

[1996] 2 CLJ 771

•The appellant, a senior assistant attached to a primary school, was charged before the Sessions Court with two counts of criminal breach of trust and was convicted.

• Pursuant to that, the Johor Education Department wrote to the Education Service Commission, the disciplinary authority, for disciplinary action be taken.

• Consequently the appellant was dismissed from service.

• The appellant sought a declaration that his dismissal was null and void and argued that inter alia that the dismissal was harsh, unfair and unjust.

Tan Tek Seng @ Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan & Anor.

[1996] 2 CLJ 771

The expression “life” appearing in art. 5(1) of the Federal Constitution does not refer to mere existence.

It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life.

In this case the right to life encompasses the right to continue in public service subject to removal for good cause by resort to a fair procedure.

Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors and other appeals

[1997] 3 MLJ 23

The respondents are three of the 10,000 natives living in that part of Sarawak where the Bakun Hydro-Electric Project is situated.

The respondents claimed that inter alia the Project would adversely affect their fundamental rights in that their livelihood would suffer from the resulting impact on the environment.

The Court of Appeal They and their ancestors have, from time

immemorial, lived upon and cultivated the land in question.

It is common ground that the project will deprive them of their livelihood and their way of life.

Their ancestral and customary rights will be extinguished.

The State Government of Sarawak seeks to deprive the livelihood and way of life of all those affected by the project.

The action however is valid because it was made in accordance with the provisions of law.

Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors[1998] 2 MLJ

158

The people live from the hunting of animals in the jungle and the collection of jungle produce, and these are the only source of their livelihood and income.

The plaintiffs have rights of free access into Linggiu valley and to harvest the fruits of the jungle.

These rights were unchallenged and recognized in law.

The defendants later entered into an agreement with the Government of Singapore and built a dam in the Linggiu Valley.

The building of the dam deprived the plaintiffs from the freedom of entering Linggui valley and consequently of their right to livelihood.

The Court of Appeal:

The plaintiffs were entitled to be compensated for the deprivation of their livelihood.

Where state action has the effect of unfairly depriving a citizen of his livelihood,

adequate compensation is one method of remedying the harm occasioned.