DEFINE THE MEANING OF ‘LIFE’ UNDER ARTICLE 5(1)

PREPARED BY:

PI005U07

SAHIDATUL ZULFA BINTI MOHD ZAKI (2019274852)

NUR ATHILIA BINTI ABDULLAH (2019433604)

NURUL LIANA BINTI KHALILI (2019213074)

PREPARED FOR

MOHD SAFRI BIN MOHAMMED NA’AIM

ASSIGNMENT SUBMITTED IN FULFILMENT OF THE REQUIREMENT FOR

LAW084 – INTRODUCTION TO MALAYSIAN SYSTEM OF GOVERNMENT
CENTRE OF FOUNDATION IN LAW
Chapter 1 : Introduction
In the Federal constitution, it stated in part II of fundamental liberties which analyse
briefly the rights that the citizens of Malaysia are entitled to under the supreme law of the
land which are inclusive of Article 5 and merely about life and personal liberty. Under article
5(1) had enunciated that
“no person shall be deprived of his life or personal liberty save in accordance with law”
In the constellation of human rights, life and personal freedom are the foremost valuable
of all privilege. If they are deprived, all other freedoms suffer an eclipse as well. The word
life does not refer merely to the animal existence of breathing and living. It covers the right to
life with human dignity. The idea of dignity as part of life becomes relevant if a prisoner
complains of torture or inhuman condition of detention like solitary confinement 1. In India it
has been held that life includes such necessities as adequate nutrition, clothing shelter
facilities for reading and writing protection against torture, mutilation and amputation, grant
of minimum wages to workers and the right to livelihood. Even the handcuffing of prisoners
when handcuffing is not sensibly essential can bring about judicial censure because arrestees
have a right to dignity. Plus, the person in this section refers to citizens as well as non-
citizens. It may conceivably, even include artificial persons like ships or aircraft on whom the
law can confer legal personality.
However, there is a contentious issue in some jurisdiction is whether the right to life
includes the right to terminate one’s life through suicide or active euthanasia. There are
currents and cross-currents which exist through the interpretation of this article. The meaning
of life under article 5(1) will be discussed thoroughly in this paper supported with few
relevant authorities and case laws for further understanding.

Chapter 2 : Tan tek Seng V Suruhanjaya Perkhidmatan Pendidikan &

Anor (1995) 2 MLJ 476
1
Shad Saleem Faruqi, Our Constitution, 2019, Sweet & Maxwell, p 101
(Judgement from the High court) 2
Material Facts :
The case concerned the allegedly wrongful dismissal of Tan Tek Seng, the plaintiff, a
senior assistant of a primary school, was arrested and charged with two counts of criminal
breach of trust by a public servant under s 409 of the Penal Code (FMS Cap 45). The sessions
court convicted the plaintiff and sentenced him to six months' imprisonment. On appeal, the
High Court bound over the plaintiff conditionally upon his entering into a bond to be of good
behaviour for a period of three years under s 173A(ii)(b) of the Criminal Procedure Code
(FMS Cap 6) ('the CPC') in the sum of RM5,000 without sureties. The defendant, the
Education Service Commission, then decided to dismiss the plaintiff because with the said
conviction, the plaintiff had lowered the reputation of the civil service, an offence under para
4(2)(d) of the Public Officers (Conduct and Discipline) Chapter 'D' General Orders 1980.The
dismissal was effected under orders 33 and 35(1) of the GO. The plaintiff subsequently wrote
to the Commission asking for a lesser punishment but the Commission confirmed that its
decision was final.
Legal Issues :
Whether the binding over order made by the High Court under section 173A(ii)(b) of
Criminal Procedure Code could be construed as conviction under orders 3, 33 and 35 of the
GO
Ratio :
(1) While no conviction is recorded when a court orders a binding over under article
173A(ii)(b) of the CPC, the court before so ordering must first find that the charge has been
proved. which fell within the ambit of the definition of 'conviction' in order 3 of the GO.
Consequently, the Commission was correct when deciding to dismiss the plaintiff under
orders 33 and 35 of the GO.
(2) No objection could be taken against the words 'with the said conviction' used by the
Commission because once the court found that the charge against the plaintiff had been
proved, the Commission was entitled to proceed under orders 33 and 35 of the GO to order
the plaintiff's dismissal. There appeared to be no necessity for the court to record a conviction
before the plaintiff could be dismissed on the ground of conduct in respect of which a
criminal charge had been proved or for conducting himself in such manner as to bring the
public service into disrepute or to bring discredit thereto.
(3) By virtue of the proviso to art 135(2) of the Federal Constitution, the fact that the plaintiff
was not given a reasonable opportunity of being heard and of no consequence as he had been
dismissed on the ground of conduct in respect of which a criminal charge had been proved.

Decisions :

2
Case analysis Tan tek Seng V Suruhanjaya Perkhidmatan Pendidikan & Anor (1995) 2 MLJ 476 High Court
Judgement Lexis Nexis.
 Abdul Malik Ishak j in his judgement finding that the charge was proved under s
173A(ii)(b) of the CPC was tantamount to a finding of guilt but the court would not be
inclined to record a conviction before binding over the plaintiff conditionally thereto. And
since there was a finding of guilt, it would squarely fall within the ambit of the definition of
the word 'conviction' in para 3 of the GO and, consequently, the Setiausaha, Suruhanjaya
Perkhidmatan Pendidikan, Malaysia was correct when he decided to dismiss the plaintiff. The
dismissal against the plaintiff was part the dismissal of the plaintiff was perfectly legitimate
and effected according to law. Claim dismissed

(Judgement from the court of appeal) 3

Legal issues arise:
(1) Whether the respondents (the second respondent being the Government of Malaysia) were
entitled to summarily dismiss the appellant in reliance per se of the finding of guilt, and if
not, whether they were obligated to take into account the particular circumstances of the case
and impose a lesser punishment upon him.
(2) Whether in opting for the dismissal the first respondent had applied and adopted a fair
procedure.
(3) Whether the punishment of dismissal, as imposed, was proportionate to the misconduct
found to have been committed by the appellant, and if not, whether a lesser punishment ought
to be opted for.

Ratio Decidendi:
Per Gopal Sri Ram JCA (Ahmad Fairuz J concurring)
(1) . The expression “law” appears in art. 5(1) and 8(1) of the Federal Constitution includes
procedural law, and in particular, any procedure prescribed by written law. If a particular
procedure prescribed by written law is found to be arbitrary or unfair or the procedure
adopted in a given case is held to be unfair, then, it must be struck down as offending art.
(2) the protection afforded by art. 135 had been lost to the appellant, and so, the learned
Judge, Johor Bahru High Court, was also correct in holding that the appellant was not entitled
to a hearing before his dismissal herein. Under General Orders 33 and 35 a member of the
public service who has been bound over under s. 173A, the disciplinary authority must
peruse the record of the criminal proceedings and take into account the relevant
circumstances, including any departmental report or recommendation

(3) The interest of justice is to consider the new point raised by the appellant that the
dismissal was open to challenge for being harsh and unfair. This is particularly so when there
was no objection taken by the other party. There was also no new evidential point raised In
3
Case analysis Tan tek Seng V Suruhanjaya Perkhidmatan Pendidikan & Anor (1995) 2 MLJ 476 Court of
Appeal Judgement Lexis Nexis
his judgment, Gopal Sri Ram held , when discharging their duties as interpreters of the
supreme law, adopted a liberal approach in order to implement the true intention of the
framers of the Federal Constitution. Such an objective may only be achieved if the expression
'life' in art 5(1) is given a broad and liberal approach. Since Tan was deprived of gainful
employment without a fair hearing, under this broad interpretation of Article 5, his dismissal
was wrongful and unconstitutional.

Judgement gain through majority decision :

The Court of Appeal held that Articles 5 and 8 of the Constitution, which protect
personal liberty and equality under the law, must be read with a liberal and not literal
approach. Since Tan was deprived of gainful employment without a fair hearing, under this
broad interpretation of Article 5, his dismissal was wrongful and unconstitutional.
Discussion :
Definition of life under article 5(1)in the case Tan Tek Seng V Pesuruhjaya
Perkhidmatan Pendidikan refers to substantive law and procedural law based on affirmation
by Gopal Sri Ram JCA. The expression “law” which appears in article to art 5(1) includes
procedural law and in particular any procedure prescribed by written law. If a particular
procedure prescribed by written law is found to be arbitrary or unjustifiable or the procedure
adopted in a given case is held to be unfair, then it must be struck down as offending art. The
expression “life” appearing in art 5(1) of the Federal constitution does not refer to mere
existence and It incorporates all those facets that are fundamental itself and those matters
which go to form the quality of life. In this case, it enunciate the right to life encompasses the
right to continue in public service subject to removal for good cause by resort to a fair
procedure
When a person is deprived of his reputation, it would amount to a deprivation of life
within article 5(1). In this case, it combined with article 8(1) every person shall be equal
under the law and have equal protection of law. The combined effect of articles 5(1) and 8(1)
is to demand fairness both in procedure and in substance whenever a public law decision has
and adverse effect on any of the fundamental of a person’s life. Among these facets are a
person’s livelihoods and his reputation. Procedural fairness demands not only the right in a
public servant to make representation on the question of punishment. Due fairness process
means that statutes may not be defined or enforced in any unreasonable capricious or
arbitrary manner. People charged with criminality have a right to be notified, to be heard and
to defend themselves against the charges. Due process refers to other constitutional
guarantees before, during and after criminal trials. 4

Other issues arise in this case is whether the principle of administrative law can be used
to interpret Malaysian constitutional law such as Article 5(1). This ideal can be achieved by
strengthening the remedies and reliefs against the administration which an individual can
invoke when he is adversely affected by a particular administrative action. This is a constant
quest and improving the redressal process against the administration is a dynamic process. It
4
Zulkarnain Bin Luqman ,Fundamental Liberties in Malaysia,2010,p.63
has come to be realised that the traditional system of judicial review has severely lacunae and
is now hardly adequate in view of the expanding powers of the administration and therefore
some extra judicial mechanism of control to supplement judicial review is very much the
need of the day. A strict demarcation between constitutional law and administrative law may
not be possible as the two are interrelated. Although certain topics are discussed under
constitutional law, and certain under administrative law, there is some common ground
between the two.5Administrative law, it may be said justifiably, deals with authorities and
administration at a lower level, while constitutional law deals with the three top organs of the
state, although some aspects of functioning of these organs are relevant to administrative law
as well but it depends in a matter of convenience and choice as to what discussed.

Chapter 3: Public Prosecutor V Lau Kee Ho [1983] 1 CLJ6

Material Facts:

5
Nature and Scope of Administraion Law,p.17
6
Case analysis Public Prosecutor V Lau Kee Ho [1983] 1 CLJ Federal Court Judgement Lexis Nexis
 In this case, Lau Kee Ho as the respondent was being charged for having under his
control in a security area without lawful authority. He was charged under Section 57(1) of
Internal Security Act 1960 that can lead to mandatory death sentence. At the beginning of the
trial, Mr. Karpal Singh as the respondent counsel raised a preliminary point that death penalty
was unconstitutional. Also the defendant raised up that death penalty under Section 57(1) of
Internal Security Act 1960 was ultra vires and contravene with the Article 5(1), Article 8(1)
and Article 121(1) of the Federal Constitution.
Legal issue of the case:
Whether the mandatory death sentence provided under Section 57 (1) of the Internal
Security Act 1960 is ultra vires and violates Article 5 (1), 8 (1) and 121 (1) of Federal
Constitution
Legal provision of the cases:
The legal provisions in this case is Article 5(1) of Federal Constitution, Article 8(1) of
Federal Constitution and 121 (1) of Federal Constitution
-Article 5(1) of Federal Constitution under Liberty of the person stated:
(1) No person shall be deprived of his life or personal liberty save in accordance with law
-Article 8(1) of Federal Constitution under Equality stated:
(1) All persons are equal before the law and entitled to the equal protection of the law
-Article 121(1) of Federal Constitution under Judicial power of the federation stated:
(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely-
(a) One in the States Of Malaya, which shall be known as the High Court Of Malaya and
shall have its principal registry at such place in the states of Malaya as the Yang-Dipertuan
Agong may determine; and
(b) One in the States of Sabah and Sarawak, which shall be known as the High Court in
Sabah and Sarawak and shall have its principal registry at such place is Sabah and Sarawak as
Yang-Dipertuan Agong may determined;
(c) (repealed)

Ratio decidendi of the case :

The mandatory death sentence under the section is not ultra vires and does not violate the
Article 5(1), 8(1) and 121(1). Article 5(1) (a) states the possibility of Parliament providing for
the death penalty, as Article 5(1) provides for deprivation of life according to the law. The
ISA is legislation against subversion expressly authorized by Article 149 and therefore any
provision under that is valid even if it is inconsistent with Article 5. (b) The Court should
decide cases before it in the light of our own Constitution, our own laws and the conditions in
our own country. Article 8(1) concerned with equal punitive treatment for similar legal guilt.
The Attorney-General has complete discretion whether to charge an accused under one or
other law. All that equality before the law requires is that all cases be given unbiased
consideration, uninfluenced by irrelevant factors. Article 121(2) said that there is nothing
unusual in a capital sentence being mandatory. On the other hand, if the law providing for
mandatory capital sentence was unconstitutional, every law imposing a mandatory fixed or
minimum penalty even where it was not capital would be unconstitutional
The judges said that mandatory death sentence under the section is not ultra vires and
does not violate the Articles referred to.
Discussion :
According to the case Public Prosecutor v. Lau Kee Ho, the court determined that the
appeal dismissed. The counsel at the very beginning of the trial affirmed that the mandatory
death sentence are violating the articles 5(1),8(1) and 121 (1) of Federal Constitution. It
make the deputy public prosecutor quite shocked and he asked for postponed his application
to the next morning because he want to consult his senior. However, the judges said that the
mandatory death is not violates to the articles
Referred to. In the Article 5 (1) of Federal Constitution stated that “ No person shall be
deprived of his life or personal liberty save in accordance with law.” This means, that anyone
in this world will not face the sanction unless he or she violated the law that provided by the
authority. In this case, Lau Kee Ho as the respondent was having under his control in a
security area without lawful excuse or authority. His action already breached the Internal
Security Act 1960. Furthermore, his action should be punished according to the laws.
Other than that, The ISA is enactment against disruption explicitly approved by Article
149 of the Constitution this has made the counsel surrendered that the Act was establish that
being so we can't perceive how it very well may be said that the criticized segment is invalid
as being in opposition to Article 5(1) because on the grounds that the Article itself explicitly
gives that any arrangement of law instituted under the Article is substantial "despite that it is
conflicting with Article 5".

Chapter 4 : LEE KWAN WOH V PP 7[2006] 5 CLJ 6318

Material Facts :
On 4 April 2000, the Inspector in charge of this case held an ambush at the scene of
incident which is Jalan Selasar 10, Taman Ipoh Jaya, Ipoh. The appellant was driving a motor
car and parked the car adjacent to house No. 52. He went out of the car and was carrying a
white plastic bag. He attempted to ran away as he was almost accosted by other police
personnels but he failed and eventually placed under arrest. After a chemical examination

7
Case analysis Lee Kwan Woh V PP [1983] 1 CLJ Federal Court Judgement Lexis Nexis
8
being conducted, it was found that the substance inside the white plastic bag was 420 grams
of cannabis. The appellant had been convicted by the High Court in Ipoh of 420 grams of
cannabis trafficking, which is an offense under s. 39B(1)(a) of the Dangerous Drugs Act
1952, with a death penalty. He lodged an appeal to the Court of Appeal, which upheld the
ruling of the High Court. Therefore, the present appeal to the Federal Court. The first ground
was the decision of the trial judge whereby he did not want to hear any submissions in the
appellant’s defence because he was already satisfied that the prosecution had rendered a
prima facie case as needed by s. 180(1) Criminal Procedure Code. It was stated that under
Art. 5(1) of the Federal Constitution ('FC') the defendant had a constitutionally guaranteed
right to a fair procedure, and that the judge's decision had breached that right. The second
ground was that the judge had not interpreted the facts in a judicial way, thereby misdirecting
himself and causing a miscarriage of justice.
Legal Issues :
i. Whether there was a violation of the accused’s right to a fair trial which is in
Article 5(1) of the Federal Constitution
ii. Whether the trial judge had failed to judicially appreciate the evidence
Legal Provision :
The legal provision that had been used in this case was Section 39B(1)(a) of Dangerous
Drugs Act 1952, Article 5(1) of Federal Constitution and Section 180(1) of Criminal
Procedure Code.
i. Section 39B(1)(a) of Dangerous Drugs Act 1952 under trafficking in dangerous drugs
stated:
(1) No person shall, on his own or on behalf of any other person, whether or not such other
person is in Malaysia-
(a) traffic in a dangerous drug;
ii. Article 5(1) of Federal Constitution under liberty of the person stated:
(1) No person shall be deprived of his life or personal liberty save in accordance with law
iii. Section 180(1) of Criminal Procedure Code under procedure after conclusion of case for
prosecution stated:
(1) When the case for the prosecution is concluded, the Court shall consider whether the
prosecution has made out a prime facie case against the accused

Ratio Decidendi :
- Gopal Sri Ram FCJ stated in his judgment that the accused does have a constitutionally
guaranteed right to an unbiased tribunal to seek a fair hearing and a fair verdict on the
evidence. If any of these rights are infringed the accused is entitled to an acquittal. Whether
an unbiased tribunal has passed a fair trial or a fair judgment depends on the facts of each
case.
- The Constitution is a sui generis document regulated by its own interpretative
principles. At the midst of these is the idea that it should view its laws generously and
liberally. A literal construction should not be imposed on its language, in particular those
provisions which guarantee the protection of fundamental rights for individuals. It is the
court's responsibility to take a prismatic approach in defining the constitutional rights secured
by Part II of the Constitution.

DISCUSSION :
According to the case of LEE KWAN WOH V PP [2006] 5 CLJ 631, the court ruled that
the appeal was allowed, the conviction was quashed and the sentence set aside. Article 5(1)
provided that no person shall be deprived of his life or personal liberty save in accordance
with law. When Article 5(1) is read prismatically, other rights contain in the concepts of
“life” and “personal liberty”. In the focus for this discussion about the meaning of “life” in
this particular article, the particular court stated that “life” means more than mere animal
existence and includes such rights as livelihood and the quality of life. When this is applied to
a criminal case, the accused have the rights that is provided by the Constitution to obtain a
fair trial and just decision and the infringement of these rights leads to the acquittal of the
accused.

CONCLUSION
Among all the human rights provided by the Constitution, the rights to life and personal
liberty is one of the most crucial rights. This is due to the impact that it may give to the entire
system of freedom if we were to be deprived of it. Article 5(1) of the Federal Constitution
has provided this vital freedom to be enjoyed by each and every citizen. The word “life” in
this article should always be viewed prismatically and not just literally as it defends people’s
rights to live with dignity. 9 This idea of dignity is very wide that it covers from prisoner’s
rights to even necessities. Judges’ roles in interpreting this article during trials is very crucial
as it may affect the outcome of the case as we can see in Lee Kwan Woh v PP 10[2009] 5 CLJ
631 where the trial judge’s ruling of not allowing the accused to give submission has resulted
in violation of Article 5(1) of Federal Constitution to having a fair trial. In another case of
Tan Tek Seng V Suruhanjaya Perkhidmatan Pendidikan, the expression “law” which appears
in article to art 5(1) includes procedural law and substantive law which people who charged
with criminality have a right to be notified, to be heard and to defend themselves against the
charges, before, during and after criminal trials.

9
Nelfi, A. M. (2014) Article 5 Federal Constitution Malaysia - Liberty of a person. Retrieved from
https://www.slideshare.net/nelfiamiera/article-5-liberty-of-a-peson
10