The Book of Prof Shad.docx

Kim loy 1989 but the arrestee must be told in clear

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Kim Loy , 1989) but the arrestee must be told in clear terms what specific wrong she is suspected of committing: Lee Gee Lam (1993). It is noteworthy that the arresting officer said nothing about the suspicion of releasing information to foreign agents. No details of the allegation or charge were supplied. She is not told what information she supplied and to whom. On this ground Article 5(3) seems to have been violated. 3 Were grounds supplied “as soon as may be”? The law does not provide a time limit. As soon as may be means as quickly as is reasonable in the circumstances: Aminah v Supt (1968); Nik Adli Nik Abdul Aziz v Ketua Polis Negara (2001). It is submitted that grounds were never supplied adequately. For this reason the grounds were also not supplied as soon as may be. 4 Was there deprivation of ‘life’ because of the torture, assault and threats? In Article 5(1) the concept of life is not mere animal existence. Life includes the dignity of life and the necessities of life: Tan Tek Seng; Utra Badi; and Liew Fook Chuan . The provision in Art 5 must be interpreted prismatically and creatively: Sugumar Balakrishnan (1998). Fatimah has been deprived of sleep contrary to Prison Rules. She has been physically assaulted and threatened with rape. Torture is never in accordance with law because no law permits it. Torture is also a violation of the dignity of life. 5 Family was not allowed to be contacted Though no constitutional provision provides for family contacts, the CPC permits a detainee to contact his family. The CPC applies fully to this arrest and on this procedural ground, the detention can be held to be illegal. It is also worthwhile noting that in interpreting the Constitution the courts must take note of implied, non-textual, un-enumerated rights. The right to contact the family should be regarded as part of the right to ‘the necessities of life’. 6 Legal representation was denied. Article 5(3) explicitly permits an arrestee to consult and be defended by a lawyer after arrest and during the trial. Section 28A of the CPC also allow this right. The problem is that Ooi Ah Phua (1975) and Hashim Saud v Yahya Hashim (1977) have held that the right can be delayed pending police investigation. However the burden of justifying the delay is on the police: Ramli Salleh ( 1973). Malaysian judges tend to accept police evidence uncritically though there are a few cases where unreasonable delay has resulted in habeas corpus even in an ISA case like Abdul Ghani Haroon v Ketua Polis Negara No 3 (2001). 6
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7 There was delay in production before a magistrate. Art 5 (4) and the CPC in sections 28 and 117 require the police to produce an arrestee before a magistrate within 24 hours (excluding travel time). There is clear procedural violation of this right as Fatimah was not produced before a magistrate within 24 hours.
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