The Book of Prof Shad.docx

That legislation against subversion does not ipso

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that legislation against subversion does not ipso facto exclude the right to legal representation unless such a restriction is clearly mentioned in the legislation. Likewise the right of a detainee under Article 5(4) to be produced before a Magistrate is not automatically ousted unless the legislation under Article 149 says so expressly: Chong Kim Loy v Timbalan Menteri [1989] 3 MLJ 121. In Nasharuddin Nasir v Kerajaan [2002] 6 MLJ 65 (later overruled) it was held that the act of permitting a detainee to meet his 88 Theresa Lim Chin Chin v IGP [1988] 1 MLJ 293; Mohamed Ezam Mohamed Noor v IGP [2001] 2 MLJ 481 89 Chng Suan Tze v The Minister [1989] 1 MLJ 69 85
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family but not his lawyer indicated bad faith. But in Theresa Lim Chin Chin v IGP [1988] 1 MLJ 293, the Supreme Court held that the question of when a person arrested under section 73 of the ISA can be allowed to exercise his right under Article 5(3) “should be best kept to the good judgment of the authority as to when such right might not interfere with police investigation.” In Tee Yam @ Koo Tee Yam [2005] 236 MLJ U1, the Federal Court held that denial of the right to counsel is not a ground for granting habeas corpus. A similar sentiment was expressed in Ahmad Yani Ismail [2005] 4 MLJ 636: If the detention itself is legal and even if the alleged infringement of Article 5(3) can be proved, that does not operate ex post de facto to vitiate the decision. Right to be present at hearing: In Ketua Polis Negara v Abdul Ghani Haroon [2001] 2 CLJ 574, there was a detention under section 73(1) of the ISA. The High Court held that the applicants had a constitutional right to be present at the hearing of their habeas corpus application by virtue of Article 5(2). On appeal, the Federal Court wiped away this great ruling. The Court relied on the dubious argument that the detainee was not in a criminal proceeding for a crime but arrested under an anticipatory measure and hence his right is a limited one. 86
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9. POWER TO COMBAT EMERGENCIES INTRODUCTION When the edifice of the Constitution of Malaya was being built, the dark shadow of communist insurgency lay over the land. For this reason the forefathers of the Constitution armed Parliament and the executive with overriding powers to combat emergencies. Emergency provisions to override the normal operation of the constitutional system are common to most legal systems. In fact the British ruled Malaya from 1948-1957 under an emergency proclamation issued on 13 July 1948. This proclamation continued beyond Merdeka and was ended after 12 years on 29 July 1960 90 . As a result of the 1948 proclamation, regulations were enacted to allow for preventive detention up to two years; establish ‘new villages’ to supervise the rural Chinese population; punish whole communities suspected of harbouring terrorists; impose restrictions on citizens’ movement; order closure of shops and schools; and reduce rice rations 91 . Nothing in post-independence Malaya matches the severity of the restrictions during British rule.
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