CASE OF THE WEEK
Section 41(5) of the Road Transport Act 1987 - Whether inconsistent with Article 5(1) and Article 8(1) of the Federal Constitution
DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DI DALAM NEGERI JOHOR SAMAN PEMULA NO. [MT-1] 24-2828-2002
ANTARA
HARMENDERPALL SINGH A/L JAGARA SINGH
...PEMOHON
DAN
PENDAKWA RAYA
...RESPONDEN
DI DALAM KAMAR
DI HADAPAN Y.A. TUAN SYED AHMAD HELMY B. SYED AHMAD
PESURUHJAYA KEHAKIMAN
GROUNDS OF JUDGMENT
By an Originating Summons dated 20.12.2002 [Enclosure 2], the Applicant seeks the following declaratory reliefs:-
i. a declaration that Section 41(5) of the Road Transport Act 1987 (hereinafter called the RTA) is Inconsistent with Article 5(1) and Article 8(1) of the Federal Constitution; and
ii. an order that the Magistrate's order to suspend the Applicant's license be set aside.
The application was supported by the affidavit of the Applicant, Harmendepall Singh a/l Jagara Singh affirmed on 17.12.2002 [Applicant's Affidavit].
In paragraphs 2 and 6 thereof, the Applicant averred that he was charged under Section 41(5) of RTA before a Magistrate in Johor Bahru on the 5.12.2002 and that the learned Magistrate had ordered suspension of the Applicant's driving license until the Court makes a final decision on the charge.
The Applicant further avers in paragraph 8 that the provision of Section 41(5) of RTA contravenes the Applicant's fundamental right as enshrined under Article 8(1) of the Federal Constitution namely, the right to be heard before the suspension of license and the right to livelihood.
Learned Counsel for the Applicant En. Gobind Singh Deo in advancing the applicant's case submitted that the provisions of Article 8(1) of the Federal Constitution includes and incorporates the fundamental rules of natural justice namely the rule against bias and the right to be heard - Che Ani bin Itam v Public Prosecutor (1984) 1 MLJ 113. It is his contention that in the context of the provisions of Section 41(5) of the RTA which makes it mandatory for the Magistrate to order suspension of a person's driving license the very moment he is charged for an offence under the section and the suspension is to remain in force until the conclusion of the trial is unconstitutional and offends Article 8(1) Federal Constitution in that not only no discretion is vested in the Magistrate but the applicant is not given an opportunity to be heard prior to the making of the suspension order. The unconstitutionality of Section 41(5) is further reinforced, it is strenuously argued by Learned Counsel, by the provisions of Section 41(3) and Section 32 of the RTA which provides for the suspension of the driving license upon disqualification. It is his argument that since the effect of disqualification is suspension, to suspend one under Section 41(5) of the RTA imposes upon the applicant before trial and conviction that very punishment which he is to face upon conviction under Section 41(3) of RTA and hence would lead to the dismal and unconstitutional position of condemning him by punishment before being heard.
Since the provision which the Applicant sought to impugn is Section 41(5) RTA it is only appropriate to reproduce same hereunder:-
"41. Causing death by reckless or dangerous driving.
(5) Notwithstanding anything in any written law for the time being in force, the court before which a person is charged with an offence under this section shall order the immediate confiscation of the driving licence of that person and shall order the suspension of the licence commencing from the date the charge is first read to that person and such suspension shall have effect-
(a) until the court makes a final decision on the charge; and
(b)as if the suspension is the suspension referred to in section 32
It is an established and recognized canon of construction that there is always a presumption in favour of the constitutionality of a particular piece of legislation and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
In Datuk Haji Harun bin Haji Idris v PP (1977) 2 MLJ Suffian LP. after summarizing the relevant principles that can be deduced from Indian authorities cited in the course of the proceedings stated:-
"In considering Article 8 there is a presumption that an impugned law is constitutional, a presumption stemming from the wide power of classification which the legislature must have in making laws operating differently as regards different groups of persons to give effect to its policy".
A further illustration of the applicability of this presumption is the case of PP v Su Liang Yu (1976) 2 MLJ 128 where Hashim Yeop A. Sani J said:-
"When a law is challenged as offending the guarantee of protection and equal protection of the law the court ought prima facie, to lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the Court to show either the enactment or the exercise of the power under it is arbitrary and unsupportable."
In the light of the presumption of constitutionality the burden invariably rest on the Applicant to show that Section 41(5) of the RTA is unconstitutional and as it transgresses Articles 5(1) and 8(1) of the Federal Constitution and it behoves upon me to determine whether from the evidence adduced and the legal arguments presented the Applicant has discharged the burden aforesaid.
On the issue of violation of Article 5(1) of the Federal Constitution it is settled law that the allegations on which the violation of a constitutional provision is based must be specific, dear and unambiguous and must contain sufficient particulars - see Bank of Baroda v R. Nagachaya Devi A.I.R. 1989 S.C 2105.
Hence it is imperative that the Applicant's affidavit must condescend to providing specific, clear and unambiguous particulars and basis to support the averment of unconstitutionality of Section 41(5) RTA in violation of Article 5(1) of the Federal Constitution, which upon a careful perusal, I find lacking. In any event Article 5(1) confers constitutional protection of life and personal liberty which does not extend to the Applicant's right to livelihood. Personal liberty in the constitutional context has been defined by Suffian L.P. in Government of Malaysia & Ors. v Loh Wai Kong (1979) 2 MLJ 33 where he stated at page 34:-
"Article 5(1) speaks of personal liberty, not of liberty simpliciter... It is well settle that the meaning of words used in any portion of a statute and the same principle applies to a constitution depends on the context in which they are placed, that words used in an Act take their colour from the context in which they appear and that they may be given a wider or more restricted meaning than they ordinarily bear if the context requires it. In the light of this principle, in construing "personal liberty" in article 5(1) one must look at the other clauses of the article, and doing so we are convinced that the article only guarantees a person, citizen or otherwise, except any enemy alien, freedom from being Unlawfully detained"; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate's authority. It will be observed that these are all rights relating to the person or body of the individual, and do not, in our judgment, include the right to travel overseas and to have a passport. Indeed freedom of movement is dealth with specifically in article 9 which, however, only guarantees citizen (but not the non-citizen) the right to enter Malaysia, and, subject to the special immigration laws applying in Sabah and Sarawak and to other exceptions set out therein, to move freely within the Federation and to reside anywhere therein."
The definition aforesaid was adopted and followed by the Federal Court in Pihak Berkuasa Negeri Sabah v Suguman Balakrishnan (2002) 4 CLJ 105 where Mohamed Dzaiddin F.CJ. stated at page 137:-
"We therefore disagree with the Court of Appeal that the word "personal liberty" should be generously integral part of life itself and those matters which form the quality of life. We are of the view that other matters which go to form the quality of life have been similarly enshrined in Part II of the Constitution under FUNDAMENTAL LIBERTIES...
We agree that the learned State Attorney General that the entry permit only allows the respondent to enter and reside in Sabah, but ipso facto the entry permit does not confer any right to livelihood to the respondent."
Based on the authorities aforesaid and coupled with the Applicant's failure to provide specific clear and unambiguous particulars and basis in his affidavit, I have come to the conclusion that the applicant's challenge over the unconstitutionality of Section 41(5) in depriving him of his personal liberty in violation of Article 5(1) Federal Constitution is without merit.
I shall now turn to address the central issue on whether the right to be heard is a fundamental right guaranteed under Article 8(1) of the Federal Constitution and if so, whether Section 41(5) of the RTA which denies such a right to be heard is inconsistent with and in violation of Article 8(1) of the Federal Constitution.
In determining the issue aforesaid it is pertinent to allude to the decision of our apex Court, the Federal Court in Danaharta Urus Sdn. Bhd. v Kekatong Sdn. Bhd., which through a landmark written decision delivered on 27.1.2004 held that the common law right to be heard is not absolute and can be restricted by statute law - the reasoning being premised that the common law which is applicable in Malaysia by virtue of Section 3(1) of the Civil Law Act 1956 continues to operate "save where no provision has been made."
The Federal Court in construing Section 72 of the Danaharta Act held that it had crystallized the common law right. The Federal Court reasoned that "as the continued integration of the common law right of access to justice Into Article 8(1) is dependant on any contrary provision that may be made by any written law as provided by Section 3(1) it cannot amount to a guaranteed fundamental right. However though the Federal Court ruled that the access to justice can be accordingly restricted nevertheless it reaffirms that the restriction must meet the equality protection demands of Article 8.
In holding that Section 72 of the Danaharta Act can be accommodated by Article 8 as it falls squarely within "reasonable classification" the Federal Court applied and affirmed the doctrine of reasonable classification as propounded by Datuk Haji Harun bin Haji Idris v Public Prosecutor (1977) 2 MLJ 155; Malaysian Bar & Anor v Government of Malaysia (1987) 2 MLJ 165.
The equality protection through the doctrine of reasonable classification is I must emphasize the only method of determining whether a law applied alike to all persons who are similarly circumstanced.
The doctrine of classification has been judicially accepted as an integral part of the equal protection clause as decided in the case of Malaysian Bar & Anor (supra) where Salleh Abas LP. at page 166 stated:-
"The requirement for equal protection of the law does not mean that all laws passed by a legislative must apply universally to all persons and that the laws so passed cannot create differences as to the persons to when they apply and the territorial limits within which they are in force....Since the legislation can create differences the question is whether these differences are constitutional. The answer is this, if the basis of the difference has a reasonable connection with the object of the impugned legislation the difference and therefore the law which contains such provision is constitutional and valid. This is known as the doctrine of classification which has been judicially accepted as an integral part of the equal protection clause."
The manner of ascertaining whether a classification is reasonable or otherwise was succinctly explained by Suffian LP. in the celebrated case of Datuk Haji Harun bin Haji Idris v Public Prosecutor (supra) where at pages 165 -166 he stated:-
'In India the first question they ask is, is there classification? If there is and subject to other conditions, they uphold the law. If there is no classification, they strike it down.
With respect we would agree with the Solicitor-General's submission that the first question we should ask is, is the law discriminatory, and that the answer should then be - if the law Is not discriminatory, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void.
In India discriminatory law is good law if it is based on 'reasonable' or 'permissible' classification, using the words used in the passage reproduced above from the judgment in Shri Ram Krishna Dalmia Ors v Shri Justice S R Tendolkar& Ors AIR 1958 SC 538, provided that:
(i) the classification is founded on an intelligible differentia which distinguished persons that a grouped together from others left out of the group; and
(ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.'
Where therefore the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law there will be no violation of Article 8(1) (see Ong Ah Chuan v Public Prosecutor (1981) 1 MLJ 64). Thus if a law deals equally with all persons of a certain well-defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no discrimination amongst equals (see Charanjit Lal v union of India AIR 1951 SC 41). A law would be regarded as discriminatory only if it discriminates one person or class of persons against others similarly situated and denies to the former the privileges that is enjoyed by the latter (see State of WB v Anwar AH AIR 1952 SC 75). As stated in Lindsley v National Carbonic Gas Co (1911) 220 US 61 it is only when a law is without any reasonable basis can it be termed as arbitrary.
It must be noted that there is always a presumption that Parliament understands and correctly appreciated the needs of Its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds (see RamPrasad v State if Bihar AIR 1953 SC 215). A court cannot, in the nature of things, be a better judge than Parliament itself in a matter of this kind (see Asiatic Engineering Co. v Achhru Ram AIR [1951] ALL 746). Equal protection violations are always examined with the presumption that the State action is reasonable and just, and unless it can be shown that the discrimination that has been resorted to or the power to discriminate that has been given is without reason, it cannot be said that there is unequal treatment (see Sagir Ahmad v Government of UP AIR 1954 ALL 256).
In approaching the question of infringement of Article 8 and the application of the two tier test to determine reasonable classification it is imperative that policy underlying the statute which purports to infringe the equality provision and the object intended to be achieved by the Statute concerned has to be ascertained - Basu's Commentary on the Constitution of India 6th Ed. Vol. B. page 171 -
The objective of the law is ascertainable from the preamble of the Road Transport Act 1987 which says it is an Act to make provision for , amongst others,
'the protection of third parties against risks arising out of the use of motor vehicles'.
Having ascertained the policy and object of the Act the Court must now apply the two-tier test of whether the provision of Section 41(5) of RTA falls under the doctrine of reasonable classification as laid down by Hashim Yeop A. Sani J in PP vSu Lian Yu (1976) 2 MLJ 128 at page 133:-
"The settled law now is that for the test of permissible classification to be satisfied two conditions must be fulfilled namely (1) the classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question."
Thus it is settled law that Article 8(1) of the Federal Constitution does permit and permits reasonable classification if and only if it is founded on intelligible differentiation having a rational relation or nexus with the policy or object sought to be achieved by the statute or statutory provision in question.
Hence the question which has to be asked by the Court is:-
In addressing the questions aforesaid it must be reiterated that where the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law that there will be no violation of Article 8(1) (per Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64.
In addressing the first question Learned Federal Counsel Alice Loke submitted that the differentia in Section 41(5) is that the mandatory suspension of licence only operates against those charged under the said provision due to the gravity of the offence charged and hence the classification was founded on an intelligible differentia by the legislature to address the particular concern.
On the second question the Learned Federal Counsel submitted that the rational relation between the differentia and the object or nexus sought to be achieved lies in the fact that it is in the public interest or in the legitimate governments ultimate interest that the road is managed and regulated in an orderly manner to ensure safety of road users and their protection from irresponsible drivers causing death by reckless or dangerous driving.
In the context of the RTA it cannot be disputed that the classification of persons who drive recklessly or dangerously are classified into a separate class, for whom provisions are made under Section 41 and Section 42 of the RTA. As I have already set out the relevant portions of Section 41 it is only appropriate for completeness to reproduce Section 42 which reads as follows:-
"42. Reckless and dangerous driving.
A close scrutiny of Sections 41 and 42 of the RTA would reveal that the only difference between the two sections lies in the factum of death resulting to third parties as a result of such driving.
Under Section 41 of RTA where death arises, sub-section (5) provides for immediate confiscation of the driving license pending trial whereas such a provision does not appear in Section 42 RTA.
It follows therefore, in my view that Section 41 of RTA stands to provide for a class of its own and may be regarded as classification in its own right and the question thus arises whether there is intelligible differentia justifying such a classification bearing in mind that the differentia must have a rational relation to the object sought to be achieved by the RTA.
My response would be to answer it in the negative.
To my mind if the purpose or object of the Act, as set out in the preamble is to make provision for the protection of third parties against risks arising out of the use of motor vehicles, then why are those persons accused of careless driving in which serious injuries or even injuries alone/and or occuring to third parties not subjected to suspension pending trial as well?
It is obvious that the sting of the object or social object sought to be achieved by the Act is to protect third parties against 'risks' (i.e. all risks) culminating from those who drive recklessly or dangerously. What is the rationale then for discriminating against those in whose case (sometimes, if not almost always, unfortunately) a third party dies but not where the third party is seriously injured?
Hence the invariable conclusion that the factor which the legislature adopted as constituting the dissimilarity in circumstances between Section 41 and Section 42 (i.e. death alone) becomes purely arbitrary and unreasonable in relation to the social object sought to be achieved by the Act which, as stated above, is to protect third parties from risks and not death alone in the case of reckless and dangerous driving.
It cannot be denied that persons charged under Section 42 of the RTA include those who drive recklessly and dangerously and cause serious risk and injury to third parties but unfortunately or rather fortunately these people, who form the very group from which the Act intends to protect third parties, are not discriminated against and subjected to a depravation of a right to be heard before their licenses are suspended.
Surely such a classification cannot be based on intelligible differentia and would offend the equality provision of Article 8(1) of the Federal Constitution?
As was stated by Augustine Paul JCA in Danaharta's case (supra) at page 42:-
"A law would be regarded as discriminatory only if it discriminates one person or class of persons against other similarly situated and denies to the former the privileges that are enjoyed by the latter (see State of WB v Anwar Ali AIR [1952] SC 75).
This reference provides of a classic example of a situation where one class of persons who are similarly situated namely those who drive dangerously and recklessly, but the applicant being in a category within the class is denied the privilege of being heard, before his licence is suspended because of the factum of death of the third party whereas those who drive dangerously and recklessly but do not cause death by so doing do not suffer the same fate. This, to my mind, is unreasonable and is of no relation to the actual object sought to be achieved by the RTA. In the circumstances it is the Courts' duty to guard the Constitution, jealously if I may add, and strike down such provision which is discriminatory in nature.
As Justice Ajaib Singh said in Ong Ah Chua's case (supra) if any particular piece of legislation gives so much as a hint that it violates the constitution, the court must unhesitatingly declare it null and void and of no effect. On the other hand if the impugned legislation is not inconsistent with or does not in any way violate the Constitution, it is equally the duty of the court to uphold its validity and give effect to it.
For the foregoing reasons the application herein is allowed with costs.
[SYED AHMAD HELMY B. SYED AHMAD]
JUDGE
HIGH COURT MALAYA
JOHOR BAHRU
DATED: 15th SEPTEMBER 2004
LAWYERS
Mr. Gobind Singh Deo, [Zamri Idrus with him] -
Tt. Karpal Singh & Co., Advocates & Solicitors, Johor Bahru - for Plaintiff.
Pn. Alice Loke - Peguam Kanan Persekutuan,
Jabatan Peguam Negara, Putrajaya - for Defendant.