Cases study for constitution

May 10, 2018 Law

In this case the appellant had been arrested and detained under a warrant issued under the provisions of the Restricted Residence Enactment. The appellant had not been produced before a Magistrate within twenty-four hours of his arrest. He claimed damages but it was held that no action could be brought against the police officer as he was acting in compliance with a warrant issued by a competent authority.

The appellant appealed but before the appeal was heard the Federal Constitution was amended by Act A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to the arrest or detention of any person under the existing law relating to restricted residence and that this amendment shall have effect from Merdeka Day. It was argued that the amendment was unconstitutional. RETHANA v GOVERNMENT OF MALAYSIA [1984] 2 MLJ 52 In this case the applicant was injured while working in a factory and lost her thumb and three fingers.

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Under the provisions of the Employees Social Security Act, 1969 she belonged to a class of employees who were insured against such accidents and accordingly she was awarded a benefit of $ 1. 50 per day giving her a sum of about $ 1,026 over a period of two years. She refused to accept the award contending that it was unconstitutional in that if she were not barred by the Act to sue her employees for negligence she could expect to get much higher damages.

She applied to a Judge of the Federal Court for leave to commence proceedings in the Federal Court for a declaration that the Act was inconsistent with various provisions of the Constitution and further for a declaration that the Act is void to the extent of such inconsistencies. PHANG CHIN HOCK v PUBLIC PROSECUTOR (NO 2) [1980] 1 MLJ 213 In this case the appellant applied by motion for leave to appeal to the Yang di-Pertuan Agong against the judgment of the Federal Court, [See supra, p.

70. ] dismissing his appeal against conviction for an offence under section 57(1)(b) of the Internal Security Act. It was argued that section 13 of the Courts of Judicature (Amendment) Act, 1976, which abolished appeals in criminal cases to the Yang di-Pertuan Agong was invalid because the Conference of Rulers had not given its consent under article 38(4) of the Federal Constitution ASSA SINGH V MENTRI BESAR, JOHORE [1969] 2 MLJ 30

In this case the learned judge at Johore Bahru referred the following question to the Federal Court under section 48 of the Courts of Judicature Act, 1964: “Are the provisions of the Restricted Residence Enactment authorising the detention and/or the deprivation of liberty of movement contrary to the provisions of the Federal Constitution and void? ” The applicant in this case had been arrested and detained by the order of the Mentri Besar of Johore under the Restricted Residence Enactment in exercise of the powers purported to be delegated to him by the Minister of Interior and Justice.

It was argued in this case that the Enactment has no provision: (i) for informing the person concerned of the grounds of his arrest and detention; (ii) for presenting him before a magistrate or for an enquiry at which the detained person could meet the allegations against him; (iii) for review; (iv) for limitation of the period of detention. Because of these reasons it was submitted that the provisions of the Enactment were inconsistent [*31] with the provisions of articles 5 and 9 of the Constitution [1979] 2 MLJ 33

GOVERNMENT OF MALAYSIA & ORS v LOH WAI KONG The respondent had applied for an order directing the appellants 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. The learned Judge rejected the application (see [1978] 2 MLJ 175) but in the course of the judgment made certain observations on the law to which the appellants took objection.

He held in effect that the refusal or delay in granting a passport was tantamount to preventing the appellant from leaving the country and was in violation of his right of personal liberty under article 5(1) of the Federal Constitution. The appellants appealed and the respondent cross-appealed SURINDER SINGH KANDA v THE GOVERNMENT OF THE FEDERATION OF MALAYA [1962] 1 MLJ 169 The plaintiff (appellant on this appeal), an Inspector in the Royal Federation of Malaya Police Force, was first appointed on probation in 1951 and permanently appointed to the rank of Inspector on June 1, 1953.

On July 7, 1958 he was dismissed by the Commissioner of Police. Having exhausted his departmental rights of appeal, he commenced these proceedings on October 1, 1959. He asked for a declaration and other consequential reliefs stating that his purported dismissal on July 7, 1958 was void and inoperative and of no effect and that he was still a member of the said Police Force because, (a) the dismissal had been effected by an authority subordinate to that which at the time of dismissal had power to appoint a member of the Police Force of equal rank and that this was contrary to art.

135(1) of the Constitution, and (b) it was effected without him being given a reasonable opportunity of being heard (at the board of inquiry held by the Police Force) and that this was Contrary to art. 135 (2) of the Constitution and natural justice. In the High Court ( [1960] MLJ 115 ) Rigby J. held that art. 144(1) was to be read with art.

135(1) at the material time and that the power to appoint and consequently the power to dismiss officers of his rank was vested in the Police Service Commission and that the Commissioner of Police was an authority subordinate to the Police Commission and as such he had no power to dismiss him. He also held that even if the Commissioner had power to dismiss the plaintiff his dismissal as actually effected was contrary to natural justice and in breach of the Constitution because the plaintiff was not afforded a reasonable opportunity of being heard.

The learned trial Judge granted the declaration that the purported dismissal was void, inoperative and of no effect and that he was still a member of the said Police Force. The Government appealed to the Court of Appeal [1961] MLJ 121 which by a majority (Thomson C. J. and Hill J. A. , with Neal J. dissenting) allowed the appeal and held that the plaintiff was validly dismissed. From this judgment the plaintiff appealed to the Privy Council.

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