Unlike favour of citizens based on HRA. For

Unlike in Malaysia, there is an absence of codified
constitution in UK. Therefore, the protection of civil liberties is deemed to
be not comprehensive and effective enough as rights provisions are usually
incorporated in a Constitution. However, UK being part of the European
Convention on Human Rights (herein after referred to as ‘ECHR’), has
incorporated the provisions of ECHR and passed Human Rights Act (hereinafter
referred to as ‘HRA’) in 1998. HRA grants rights to citizens nevertheless.

The passing of HRA allows judges to
play their role  in giving rights to
citizens easier and more straightforward without having to refer to common law
precedents as there is already a concrete document that outlines the rights of
citizens.1  Through this, the protection of civil
liberties is more effective because judges can give their judgment in favour of
citizens based on HRA. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001,
the magazine was to publish a series of photographs of Jones’ wedding. The
court ruled that right to privacy has been given to Jones according to HRA
despite being a celebrity. The magazine lost the right to expression as wedding
is of confidential matters.

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Moreover, judiciary could protect
civil liberties by carrying out judicial review. Judicial review is a process
in the Supreme Courts to examine lawfulness of cases. For instance, in the case
of Christopher Alder,
he died while in police custody. The police officers went on a trial for
manslaughter but subsequently being acquitted. The case was appealed to the
European Court of Human Rights. The court then held that the misconduct of police
officers was against Article 5 of ECHR. Judges can also declare incompatibility
any acts which is ultra vires HRA. In the case of David Miranda, it was a provision under Schedule 7
of Terrorism Act 2000 that travellers are allowed to be questioned to find out
whether they appear to be terrorists. The court decided that schedule 7, as in
force at the time of this incident, did not provide sufficient protection
against the examination of journalistic material as provided under ECHR. In
this way, the judiciary’s ability to reverse executive action by ruling it
beyond its powers provides a very effective protection of liberties in the UK.2

However, it must also be noted that UK
upholds parliamentary supremacy instead of constitutional supremacy. Parliament
seems to hinder the function of judiciary wherein critics see the judiciary
power is too weak to protect civil liberties. Parliament legislate rulings and
all rulings are binding on all bodies. If one ruling is not in favour of the
government, government can then pass a new act to avoid the ruling. This can be
illustrated by a famous UK human rights case – the Belmarsh case. This case was heard before the
House of Lords. It was held that the indefinite detention of foreign prisoners
in Belmarsh without trial under Section 23 of the Anti-terrorism, Crime and
Security Act 2001 was incompatible with the European Convention on Human Rights.
The parliament then decided to replace Part 4 of ATCSA 2001 with the Prevention
of Terrorism Act 2005 which allows anyone of any nationality to be subjected to
a control order. This shows that without an entrench constitution, the erosion
of civil liberties can easily happen.  

Other than that, courts can only be
involved in protecting liberties via appeal. This means that the case must be
challenged or brought before a court to engage in its protective role. Judges
cannot be pro-active to file a case examining the lawfulness of a case. Thus, a
law can stand for years before being called incompatible. For example, in Belmarsh case again, the case
was only brought before the court in 2004 although the ATCSA has established 3
years back.3
This has weakened the ability of judiciary in protecting civil liberties as
judiciary plays a negative role.

In addition to that, judges have no
power to strike down an act but only to declare incompatible to HRA. It means
there is still likelihood the incompatible act would not be changed as it is
subjected to the decision or Parliament. This is because Parliamentary is
always supreme and cannot be challenged. According to A.V. Dicey, ‘The principle of parliamentary sovereignty
means neither more nor less than this, namely that Parliament has, under the
English constitution, the right to make or unmake any law whatever; and further
that no person or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament.’4

In
a brief conclusion, the rights of citizens are effectively protected by HRA.
However, the power of judiciary in interpreting the law is subjected to the
sovereignty of Parliament which may erode the rights of citizens by passing new
rulings.