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Malayan Law Journal
[2017] 1 MLJ
chapter III, are expressed in general and abstract terms which invite the participation
of the judiciary in giving them sufficient flesh to answer concrete questions. The
framers of the Constitution would have been aware that they were invoking
concepts of liberty such as free speech, fair trials and freedom from cruel punishments
which went back to the enlightenment and beyond, And they would have been
aware that sometimes the practical expression of these concepts what limits on
free speech are acceptable, what counts as a fair trial, what is a cruel punishment
had been different in the past and might again be different in the future. But
whether they entertained these thoughts or not, the terms in which these
provisions of the Constitution are expressed necessarily co-opts future
generations of judges to the enterprise of giving life to the abstract statements of
fundamental rights.
A
B
C
…
…
[12] The third principle is this. A court when interpreting the other provisions of
our Constitution, in particular, those appearing in Part II thereof, must do so in the
light of what has been correctly referred to as ‘the humanising and all pervading
provisions of art 8(1)’ …
D
[33] It was clear therefore that the appellant was not precluded in advancing
or of building up their case as set out in the suit for appropriate intervention by
the courts. The circumstances under which art 5 of the Federal Constitution
could be availed of for the assistance of an aggrieved person was not shut, (as
affirmed by the Federal Court in Lee Kwan Woh’s, and it was well within the
powers of the court to give ‘flesh’ to those abstract statements in concrete life
situations as they emerge, like for instance in this fact scenario where there has
been a delay in the carrying out of the death sentence coupled with the
appellant’s adverse mental condition. The pleadings filed, as shown above, also
sufficiently adverted to the relevant facts and the nature of the relief prayed for
by the appellant. It was open to the courts to consider all relevant issues and
allow or dismiss the appellant’s complaint.
E
F
G
[34] We were of the view that the court was therefore clearly and definitely
seized with the needful jurisdiction to judicially determine the issues raised by
the appellant in the suit.
H
[35] On the question of whether the contentions of the appellant had any
arguable basis or foundation, suffice for us to refer to certain pertinent
observations of the Supreme Court of India in the Shatrughan Chauhan. That
case revolved around the reach of art 21 of the Indian Constitution, which was
in the following terms:
I
Article 21. No person will be deprived of his life and liberty except in accordance
with procedure established by law.
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