The Book of Prof Shad.docx

Iii in a preventive detention order under the

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(iii) In a preventive detention order under the Dangerous Drugs Special Preventive Measures Act 1985 (DDA) the detainee must, at the time of the service of the order, be furnished with the statement containing the grounds and allegations of fact on which the detention was directed. In Kumareshan Subramaniam v Dato Chor Chee Heung [2003] 4 MLJ 384, habeas corpus was issued because the grounds on which the detention was directed were disclosed after service of the order and not at the time of the service of the order. However, it must be noted that the right in Article 5(3) can be deprived under the authority of emergency laws: Tee Yam @ Koo Tee Yam v Timbalan Menteri [2005] 5 MLJ 645; Kam Teck Soon v Timbalan Menteri [2003] 1 MLJ 321 Ahmad Fairuz, CJ (Malaya) held that section 3(1) of the Public Order Prevention of Crime Ordinance 1969 (POPO) requires the arresting officer to have “reason to believe that there are grounds”. It does not require the grounds to be informed to the arrested person”. The inconsistency with Article 5(3) is excused by Article 150(6). There was a learned dissent from Abdul Malek, FCJ that in the absence of an express recital contravening Article 5(3), it could not be lightly assumed that the basic and elementary right to know the grounds of arrest was ousted. LEGAL REPRESENTATION The second limb of Article 5(3) requires that every arrestee shall be allowed to consult and be defended by a legal practitioner of his choice. The right to legal representation is available at two stages – first, after the arrest and second, at the trial or judicial proceedings. After arrest: Through judicial interpretations, this constitutional right has become ineffective. 26
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(i)In Ooi Ah Phua v Officer In-charge Kedah/Perlis [1975] 2 MLJ 198 and Hashim Saud v Yahya Hashim [1977] 2 MLJ 116, the courts have held that consultation with a lawyer in a police lock-up can be postponed pending police investigation: Ramli Salleh v Inspector Yahya Hashim [1973] 1 MLJ 54; Theresa Lim Chin Chin v IGP [1988] 1 MLJ 293. But in Abdul Ghani Haroon v Ketua Polis Negara (No. 3) [2001] 2 CLJ 709 the High Court was persuaded that malice was present and habeas corpus was issued. What is also remarkable is that the learned judge held that the guarantees of Article 5(3) apply even in ISA detention cases. These rights are not automatically displaced by the ISA unless the law says so explicitly. Contrast this with Tee Yam @ Koo Tee Yam (ii)In Tee Yam @ Koo Tee Yam v Timbalan Menteri [2005] 5 MLJ 645 it was held that the right to legal representation is not violated by the presence of police officers in sight and hearing at meetings between a detainee and his counsel because of the Internal Security (Detained Persons) Rules 1960. Tee Yam is in direct conflict with Ramli Salleh v Inspector Yahya Hashim [1973] 1 MLJ 54 in which Syed Agil Barakbah had ruled that “in order to render such interview effective it should be held not within the hearing of any member of the police for under the law communication between the solicitor and client is privileged. It should, however, be within the sight of the police”. The unfortunate implication of the
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