Right to life and personal liberty

• Main Authors: Manikam, Vijiaprabu, Ramalingam, Chithra Latha, Panchalingam, Lahveenya, Ali Mohamed, Ashgar Ali
• Format: Book Chapter
• Language: English
• Published: LexisNexis Malaysia Sdn Bhd 2022
• Subjects: K3165 Constitutional Law
• Online Access: http://irep.iium.edu.my/103961/2/103961_Right%20to%20Life%20and%20Personal%20Liberty.pdf; http://irep.iium.edu.my/103961/; https://store.lexisnexis.com.my/products/constitutional-law-in-malaysia-skuSKUMYCONSTILAWMY#:~:text=It%20covers%20topics%20such%20as,and%20emergency%20powers%2C%20constitutional%20interpretation
• Institution: Universiti Islam Antarabangsa Malaysia

The right to life is often described as a right not to be deprived the life of another human being. This right belongs to a category of human rights that are fundamental to all human beings. It is by virtue of this right one is able to enjoy other rights that are prescribed and guaranteed by several articles of the Constitution and international treaties. However, it is important to note that the right to life is not absolute, and there are circumstances where deprivation of life may be legitimate. This includes situations such as the use of the death penalty, death caused by security forces or death during armed conflict. These exemptions should be subjected to strict control and should apply only in exceptional circumstances. Right to personal liberty on the other hand focuses on protecting a person’s individual freedom. This is an important right because it affects an individual’s physical freedom. It does not however guarantee freedom from arrest or detention. It ensures that arrest and detention will not be arbitrary or unlawful. Any detention or imprisonment must only be done with good reason and in accordance with the procedure established by law. There is no place for arbitrary arrest and detention. In the context of Malaysia, the right to life is protected under Article 5(1) of the Federal Constitution which provides that no person should be deprived of his life or personal liberty save in accordance with the law. It is important to appreciate that the ambit of the article depends on the interpretation given. As stated by Chief Justice Hughes of the US Supreme Court, ‘We are under the constitution but the constitution is what the judges say it is and the judiciary is the safeguard of our liberty and our property under the constitution’. Therefore, there is considerable scope for judicial creativity when it comes to interpreting constitutional provisions. It is left to the judges to strike the right balance between the interest of the state and the rights of an individual and it is important to ensure that individual rights are not sacrificed in protecting the interest of the state. The scope of protection given by an individual via Article 5 ultimately depends on whether a literal or liberal approach is taken in interpreting these constitutional provisions. The literal approach gives effect to the ordinary and natural meaning of the constitutional provisions while in the liberal approach, the judges look beyond the words of the provisions and embrace extra-legal, unwritten, natural law principles to add moral colours to the legal canvas. A liberal and proactive attitude is crucial to ensure that the interpretation of the constitutional provision is up to date with modern trends and the contemporary needs of the people. The Privy Council through its decisions has indicated the proper approach to interpreting provisions concerning fundamental rights in a written constitution based on the Westminster model. The Privy Council in Hinds v. The Queen [1976] 3 AER 356 denounced the approach of interpreting constitutional provisions by applying the principles that are applicable to ordinary legislations. Furthermore, Lord Diplock in Minister of Home Affairs v. Fisher [1979] 3 AER 21 opined that a written constitution based on a Westminster model is a unique document that requires a principle of interpretation of its own. It has to be given a liberal interpretation in order to give individuals the full extent of their fundamental rights and freedom. It is worthwhile adding that article 5(1) of the Federal Constitution is pari materia with Article 21 of the Indian Constitution and therefore the interpretation of the Indian cases is relevant and often quoted by Malaysian Judges when determining cases on Article 5. It is important to note that these Indian cases, like any foreign judgments, are not binding to the Malaysian Court. Despite that, the cases are persuasive in nature especially when the relevant provisions of the law are quite similar to the one in Malaysia. In Yeap Hock Seng @ Ah Seng v. Minister for Home Affairs, Malaysia & Ors [1975] 2 MLJ 279, Abdoolcader J stated: “As it will be necessary to discuss certain Indian cases in the course of my judgment, I should perhaps at this stage deal with the relevance and authoritative value of such decisions. Our Constitution and the laws providing for preventive detention have been primarily drawn from Indian sources, and accordingly decisions of the highest tribunal in India, the Supreme Court of India, and indeed also of 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 to be that where there is a dearth of local authority, the Indian decisions are entitled to the greatest respect and will normally be followed unless the court has cause to disagree with the reasoning of any such decision”.