Loh Kooi Choon v. Government of Malaysia
Encyclopedia
Loh Kooi Choon v. Government of Malaysia (1977) 2 MLJ 187
is a case decided in the Federal Court
of Malaysia concerning the rights and freedoms guaranteed by the Constitution
, and also involving the extent to which Parliament
can amend the Constitution. The decision was delivered by Federal Justice Raja Azlan Shah.
under a warrant issued under the provisions of the Restricted Residence Enactment 1933 (RRE). Article 5(4) of the Constitution specified that any person arrested "be produced before a magistrate and shall not be further detained in custody without the magistrate's authority" — guaranteeing the right of habeas corpus
. Loh was denied this right, and sued
the Police for damages
. However, his claim was rejected on the grounds that the Police had acted in compliance with a warrant issued by a competent authority. Loh appealed to the Federal Court, which heard his appeal four years after the original case.
Before his appeal was heard, however, Parliament
amended Article 5(4), adding a provision stating:
(ISA), that allegedly encroach on human rights. This part of the judgement in Loh has been described as "no more than judicial rhetoric".
Legal scholars have suggested that the decision in Loh made Article 4(1) insufficient with regard to ensuring the constitutionality of laws passed by Parliament, as:
Tun Mohd Suffian Hashim, Justice Wan Sulaiman, and Justice Syed Othman, who unanimously agreed, in the words of Lord President Suffian:
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
is a case decided in the Federal Court
Courts of Malaysia
The Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.-History:...
of Malaysia concerning the rights and freedoms guaranteed by the Constitution
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
, and also involving the extent to which Parliament
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
can amend the Constitution. The decision was delivered by Federal Justice Raja Azlan Shah.
Background
Loh had been detained by the Royal Malaysian PoliceRoyal Malaysian Police
The Royal Malaysia Police is a part of the security forces structure in Malaysia. The force is a centralised organization with responsibilities ranging from traffic control to intelligence gathering. Its headquarters is located at Bukit Aman, Kuala Lumpur. The police force is led by an...
under a warrant issued under the provisions of the Restricted Residence Enactment 1933 (RRE). Article 5(4) of the Constitution specified that any person arrested "be produced before a magistrate and shall not be further detained in custody without the magistrate's authority" — guaranteeing the right of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. Loh was denied this right, and sued
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
the Police for damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
. However, his claim was rejected on the grounds that the Police had acted in compliance with a warrant issued by a competent authority. Loh appealed to the Federal Court, which heard his appeal four years after the original case.
Before his appeal was heard, however, Parliament
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
amended Article 5(4), adding a provision stating:
Case
Before the Federal Court, Loh's counsel argued against the amendment and its retrospective effect on the grounds that it was not permissible for the Constitution to be amended in such a way that its "basic structure" was destroyed. Loh referred to Article 4(1), which specifies that the Constitution is "the supreme law of the Federation", and Indian authorities, to argue that the amendment had contravened the spirit and basic structure of the Constitution by invalidating the right of habeas corpus.Decision
Federal Justice Raja Azlan Shah rejected the argument of the appellant, stating that although Article 4(1) declared that any unconstitutional law passed after independence would be void, this did not apply to the Constitution itself — the Constitution could not be internally inconsistent. In his judgement, he stated that law made under ordinary legislative power, and law in the form of Constitutional amendments, were two different things, and as such constitutional amendments were not subject to the inconsistency clause of Article 4(1):Criticism
The case has been criticised by legal scholars, who have argued that it effectively gave the government free rein to pass unconstitutional laws. One part of Raja Azlan Shah's judgement, which stated that "the individual has certain fundamental rights upon which not even the power of the State may encroach" was subjected to criticism for "hardly (holding) substance" in light of certain legislation, such as the RRE and the Internal Security ActInternal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
(ISA), that allegedly encroach on human rights. This part of the judgement in Loh has been described as "no more than judicial rhetoric".
Legal scholars have suggested that the decision in Loh made Article 4(1) insufficient with regard to ensuring the constitutionality of laws passed by Parliament, as:
Legacy
The decision concerning the "basic structure" of the Constitution in Loh was reaffirmed in the 1980 case of Phang Chin Hock v. Public Prosecutor. In Phang, the case was heard by Lord PresidentLord President of the Federal Court
The title of Lord President of the Supreme Court was formerly the title of the head of the judiciary in Malaysia, until 1994 when the office was renamed "Chief Justice of the Federal Court"....
Tun Mohd Suffian Hashim, Justice Wan Sulaiman, and Justice Syed Othman, who unanimously agreed, in the words of Lord President Suffian: