Exploring The Right To Life: A Malaysian Spectacle

The right to life is the cornerstone of all fundamental human liberties. As Emeritus Prof. Shad Saleem Faruqi eloquently put it: In the constellation of human rights, life and personal liberty are the most precious of entitlements. If they are deprived, all other freedoms suffer eclipse as well.

Thus, it can be observed that the right to life is exalted onto the mightiest of pedestals. And this is rightly so, for: it encapsulates the essential belief that a human being has a right –– to live [1] By this right, a human has an entitlement, in law, to not be killed by another human being.

The right to life and personal liberty enjoy international recognition by virtue of Arts. 3 and 9 of the Universal Declaration of Human Rights. Which, when read together, provide that a human person has the right to life, liberty, security, and shall not be arbitrarily arrested, detained or exiled.

Similarly, the Federal Constitution of Malaysia posits in Art. 5(1) –– a basic constitutional provision guaranteeing personal liberty––that no person is to be deprived of their life or personal liberty, save in accordance with law.

1. The Scope and Ambit of The Right to Life under Malaysian Law

“Life”: First, the concept of “life” as provided for under Art. 5(1) is examined to determine its true nature and extent.

In the case of Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan[2] the Court of Appeal through Gopal Sri Ram JCA opined that: the true objective of Art. 5(1) can only be achieved if the expression “life” under Art. 5(1) is accorded a broad and liberal meaning.

To this end, in Tan Teck Seng, it was concluded that “life” under Art. 5(1) does not refer to mere existence; it includes all matters that are an integral part of life, and those that concern the quality of life. As expressly remarked by the appellate court, the right to life would extend to, for example: the right to live in a reasonably healthy and pollution free environment.

Progressively, in Lembaga Tatatertib Perkhidmatan Awam v Utra Badi [3] the Court of Appeal through Gopal Sri Ram JCA went further once again by holding that “life” under Art. 5(1) incorporates the right to reputation as well. This was because “life” was extended further to include a life with dignity and a deprivation of reputation was seen to be a deprivation of a “life with dignity”.

The Federal Court then in 2009, through Gopal Sri Ram FCJ, in Lee Kwan Koh v Public Prosecutor[4]pursued in the footsteps of Tan Teck Seng and entrenched that “life” under Art. 5(1) refers to more than mere animal existence, and includes the right to livelihood and a quality life.

“Personal Liberty”:

Second, the meaning of “personal liberty” under Art. 5(1) is brought to examination.

Indian jurisprudence, for example in Maneka Gandhi v Union of India [5] has always adopted the stance of interpreting “personal liberty” widely. In Maneka Gandhi, it was said that personal liberty does not merely mean liberty of the physical human body. It includes all other forms of lawful human conduct –– such as socialising at will, or even sleeping at one’s will.

However so, unfortunately, unlike the Indian courts, the Malaysian courts have not accorded a wide definition to personal liberty. The Malaysian judicial trend in interpreting “personal liberty” can be categorised into two phases:

A. Pre-1996 Era:

In the 1979 case of Government of Malaysia v Loh Wai Kong [6] the Federal Court construed personal liberty under Art. 5(1) to be restricted to matters concerning only the physical body of an individual. On the facts of Loh Wai Kong, it was held that personal liberty thus does not include a right to travel abroad. This decision was vehemently criticised for rendering Art. 5(1) devoid of its purpose.

B. Post-1996 Era:

From 1996 onwards, beginning with Tan Teck Seng, the Court of Appeal began taking its cue from Indian jurisprudence. It began interpreting Art. 5(1) very liberally in favour of the people.

Accordingly, in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah[7]the Court of Appeal through Gopal Sri Ram JCA held that “personal liberty” under Art. 5(1) ought to be construed in an equally broad and liberal fashion as “life”. On the facts of Sugumar, it was opined that “personal liberty” thus includes access to courts and judicial relief.

However so, this broad interpretation was short-lived. On appeal [8] in Sugumar, the Court of Appeal’s decision irked the Federal Court. The apex court consequently overturned the appellate court’s decision for not adhering to the apex court’s stare decisis in Loh Wai Kong.

In essence, the apex court reaffirmed Loh Wai Kong in that: “personal liberty” is restricted to matters concerning the physical body and should not be broadly interpreted any further.

Thus, till today, “personal liberty” remains confined to matters of the physical body.

2. The Exception Encapsulated Within Art. 5(1) On the Right to Life

The exception that will be examined hereunder is the expression “save in accordance with law” found within Art. 5(1).

Too Wide: The construction of the words “save in accordance with law” is now visited. In chief, the brief discussion here centers the raison d’etre as to why it is said that this exception is far too wide.

According to constitutional law expert Prof. Dr. Abdul Aziz Bari, the word “law” in Art. 5(1) could mean any law passed by Parliament, irrespective of whether such law is moral, just, fair, or otherwise. [9]

In his view, this situation worsens, as Malaysian courts do not question the morality of laws passed by the legislature. They solely concern themselves with the administration of the law as found in statutes which is truly bad.

This may however be attributed to the fact that a large majority of judges read law in England, and are thus influenced by a heavy dose of English positivism. In that, they only interpret laws, and do not question them.

Be that as it may, in 2017 recently, in PP v Gan Boon Aun, [10] the Federal Court progressively accorded a truly expansive and liberal construction of “law” in Art. 5(1). “Law” was held to include the concept of the rule of law, the doctrine of the presumption of innocence, judicial decisions, rules of natural justice, and all else that bears the force of law.

Gan Boon Aun thus to a certain extent, remedies the concerns above of the good professor. It has now opened for argument that, for example, a law that defeats an accused’s presumption of innocence, before any trial, cannot be law depriving a person of their liberty under Art. 5(1).

Law: The subsequent issue that arises is whether does “law” only encompass substantive law, or procedural law as well? The significance of this is understood below.

In Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia11, an ISA detention was challenged. The reason being –– the procedural requirement within Art. 5(3) requiring a detainee be informed of the grounds of his arrest: was not complied with. As such, it was prayed that the detention was null, as it was not ‘in accordance with law’, given that “law” under Art. 5(1) included procedural law.

However, the Federal Court in Karam Singh held that “law” under Art. 5(1) did not include procedural law. Thus, a detention in violation of procedures; would still be lawful.

Nevertheless, this atrocity was very fortunately cured in Tan Teck Seng, whereby the Court of Appeal opined that “law” under Art. 5(1) included both procedural and substantive law. Thus, a detention in violation of procedural law would today, end in nullity.

In the upshot, from the examination above, it can be appreciated that the position of Malaysian law on the concept of “right to life” is expansive and wide. Nevertheless, the exception allowing this right to be deprived appears far too wide and arbitrary as well. But, with the liberalising attitude of the Malaysian courts today towards constitutional interpretation, it may be said with conviction that the right to life of Malaysians –– rests well and safe, in the Judiciary’s cradle.

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