Professional Documents
Culture Documents
Topic 3 - Fundamental Liberties (Art 5,6,7) (Part 1)
Topic 3 - Fundamental Liberties (Art 5,6,7) (Part 1)
INDIVIDUAL
(ART 5, 6 & 7)
UCL1622
Introduction
- The general assumption is that every constitution must
grant a certain amount of rights and liberties to its citizens.
- The extent of these rights could vary from country to
country. Governmental policies, religions and other factors
influence the existence and the degree of freedom granted.
- It must be noted that no country grants absolute freedom
to its citizens.
- For academic purposes, the term ‘liberty’ is given a very
narrow interpretation. It means the state of being free from
any form of captivity, slavery, imprisonment and despotic
control.
- A ‘right’ on the other hand is considered as a privilege
granted under a particular law.
Position in the UK
■ Issue of civil liberty has been greatly debated not only in Malaysia, but
also in the UK.
■ Because UK has no codified constitution, rights and liberties are not
expressly protected by any form of higher laws.
■ The UK government nevertheless signed the European Convention of
Human Rights (ECHR) in 1951 and as such, the UK citizens were
given the right to appeal to the European Courts of Human Rights in
Strasbourg.
■ UK’s records with the European Courts of Human Rights was rather
not satisfactory and the citizens demanded more protection of their
liberties.
■ The UK government finally incorporated the European Convention of
Human rights into UK law by virtue of the Human Rights Act 1998.
■ Note that the HRA 1998 is just an ordinary Act of Parliament.
– As such, does it give sufficient protection?
Substantive rights under the ECHR
■ Article 1: the right to protection of all convention rights within domestic legal systems.
■ Article 2: the right to life
■ Article 3: the right to freedom from torture or inhuman or degrading treatment
■ Article 4: freedom from slavery
■ Article 5: freedom of the person
■ Article 6: the right to a fair trial
■ Article 7: freedom from retrospective criminal liability
■ Article 8: the right to respect for private and family life
■ Article 9: the right to freedom of thought, conscience and religion
■ Article 10: freedom of expression
■ Article 11: Freedom of peaceful assembly and association
■ Article 12: the right to marry and found a family
■ Article 13: the right to an effective remedy for the breach of convention rights
■ Article 14: the right to enjoy rights and freedom under the convention without
discrimination
Substantive rights under the ECHR
■ Articles 3,4,7 and 9 provides absolute rights.
■ The other Articles contain qualifying criteria.
■ Limitations take two forms:
1) Legitimate aims of the state which may restrict the protection of rights:
i. the interests of national security, public safety or the economic well being
of the country.
ii. the prevention of disorder or crime.
iii. the protection of health or morals, the protection of the rights or freedoms
of others.
iv. the prevention of disclosure of information received in confidence.
v. maintaining the authority and impartiality of the judiciary.
i. Different Offence
– Nadarajan a/l Somasundram
■ Held: different offence could be based on the same set of facts as were
relied upon in the first trial.
ii. Technical Errors
– Datuk James Wong Kim Min
■ Plaintiff was detained in West Malaysia under a law that applied only in
Sarawak.
■ A writ of habeas corpus was issued to order his release.
■ But this release did not bar a subsequent detention order which was
properly made out under the correct law.
Exceptions to Art 7(2) of FC
see: Document of Destiny p 256-259
v. Appeals
– If a person is acquitted and the prosecutor files an appeal under S 5 of Court of
Judicature (Amendment) Act 1976, there is NO double jeopardy.
vi. Preventive Detention
– PP v Musa // Yeap Hock Seng @ Ah Seng v Minister
vi. Disciplinary Proceedings
– Mohamed Yusoff Samadi v AG
vii. Multiplicity of Proceedings
– Teh Cheng Poh v PP
viii. Re-trial
– PP v Munusamy
■ Appellate criminal courts have power to order a new trial.
– PP v Ooi Khai Chin & Anor
■ Federal Court had jurisdiction to entertain the appeal by prosecution.
Sources:
■ Document of Destiny
■ https://www.freemalaysiatoday.com/category/nation/2020/09/24/prosecut
ion-to-appeal-against-acquittal-of-woman-freed-of-murdering-maid/
■ https://www.freemalaysiatoday.com/category/nation/2020/09/22/prosecut
ion-files-appeal-against-siti-kasims-acquittal/
Thank you
Next Week – Topic 4: FL [Part 2]