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FAC News - Wednesday, September 18, 2002 8:19 PM DALAM
MAHKAMAH PERSEKUTUAN
BERSIDANG DI KUALA LUMPUR BIDANG KUASA RAYUAN) MAHKAMAH
PERSEKUTUAN (BIDANG
KUASA JENAYAH) BIL: ( WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH BIL : 44-15-2001) 1. MOHAMAD EZAM BIN MOHD. NOOR - PEMOHON KETUA POLlS NEGARA - RESPONDEN MAHKAMAH
PERSEKUTUAN (BIDANG
KUASA JENAYAH) BIL: 2. RAJA KETUA POLIS NEGARA - RESPONDEN MAHKAMAH
PERSEKUTUAN (BIDANG
KUASA JENAYAH BIL: 3. CHUA TIAN CHIANG - PEMOHON KETUA POLlS NEGARA - RESPONDEN MAHKAMAH
PERSEKUTUAN (BDANG
KUASA JENAYAH) BIL:
(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH BIL: 44-18-2001) 4. HISHAMUDIN
BIN RAIS - PEMOHON KETUA POLIS NEGARA - RESPONDEN MAHKAMAH
PERSEKUTUAN (BDANG
KUASA JENAYAH) BIL:
(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH BIL: 44-19-2001) 5. SAARI BIN SUNGIB - PEMOHON KETUA POLIS NEGARA - RESPONDEN CORAM: MOHAMED DZAIDDIN, CJ WAN ADNAN ISMAIL, PCA STEVE SHIM LIP KIONG, CJ (SABAH & SARAWAK) ABDUL MALEK AHMAD, FCJ STI NORMA YAAKOB, FCJ
JUDGMENT OF SITI NORMA YAAKOB, FCJ My judgment is confined to one aspect of the submissions made in these five appeals before us namely the issue of whether the provisions of Article 5(3) of the Federal Constitution relating to the right of an arrested person to be consulted and defended by a legal practitioner of his choice have been breached and the effect of such a breach. This is the fifth and last issue raised by the Appellants. Article 5 deals with fundamental liberties and in relation to clause (3), it makes the following provisions. “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” It is common ground that the Appellants were denied communication with their solicitors and family members during the whole period of their initial detention under section 73 (1) of the Internal Security Act, 1960 (“the ISA”) despite written requests made for that purpose. We were referred to the first of such requests contained in a letter
dated Case law as well as discourse into the subject have since defined and developed the scope and extent of the right of the arrested person to legal representation. I begin with the case of Assa Singh v Menteri Besar, Johore, (1969) 2 MLJ 30, where a question of law was referred to the Federal Court under section 48 of the Courts of Judicature Act, 1964. The question to be determined was whether the provisions of the Restricted Residence Ordinance authorizing the detention and/or the deprivation of liberty of movement contrary to the provisions of the Federal Constitution are void. In answering that question in the negative, Suffian, FJ, (as he then was) had this to say. “To sum up, in my judgment, the Restricted Residence Enactment is silent as regards the four rights guaranteed by article 5 to a person arrested under the Enactment, namely, the right to be informed as soon as may be of the grounds of his arrest, to be allowed to consult and be defended by a legal practitioner of his choice, and, if not sooner released, to be produced without unreasonable delay and in any case within 24 hours (excluding the time of any necessary journey), before a magistrate and not to be further detained without the magistrate’s order. Such further detention must be in accordance with law, which law need not give him a right to an enquiry. Silence of the Enactment regarding the four rights does not make it contrary to the constitution. Even if the Enactment is contrary to the Constitution, the Enactment is not void. The four rights should be read into the Enactment.” As such, a detainee’s right to be consulted by a practitioner of his choice is to be read into the ISA. Assa Singh was followed by Ramli bin
Salleh v Inspector Yahya bin Hashim (1973) 1 MLJ
54, where Syed Agil Barakbah,
J., had to deal with the question as to when the right to legal
representation under Article 5(3) begin in the case of a person
who has been arrested and remanded in police custody. The learned
judge held that such a right begins from the day of his arrest even
though police investigations have not yet been completed. However
the learned Judge warned that when enforcing such a right it is
subject to certain legitimate restrictions and these may relate
to time and convenience to both the police and the person seeking
the interview and the right should not be the subject of abuse by
either party. For such consultation to be effective it should be
allowed without the hearing of the police though in their presence.
These were the very same safeguards and sentiments that were emphasized
by Modi J., in the case of Moti Bai v The State AIR 1954 Rajanathan 241, where the provisions of Article 22(1) of the
Indian Constitution, which have the same effect as our Article 5(3) were being questioned. That case was cited with approval
by our These restrictions were also recognized in the case of Lee Mau Seng v Minister for Home Affairs, Singapore & Anor (1971) 2 MLJ 137 where Wee Chong Jin, CJ., in interpreting Article 5(3) of the Constitution expressed his opinion that an arrested person is entitled to his constitutional right of legal representation after his arrest and the right must be granted to him within a reasonable time after his arrest. Suffian LP. In Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis (1975) 2 MJ 198 went further to analyse the timing of the exercise of such a right in the following manner. “With respect I agree that the right of an arrested person to consult his lawyer begins from the moment of arrest, but I am of the opinion that that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyer on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them. The interest of justice is as important as the interest of arrested persons and it is well-known that criminal elements are deterred most of all by the certainty of detection, arrest and punishment. With respect I agree with the view of Bhide J. in Sundar Singh v Emperor (AIR 1930 Lahore 945) who said at page 947: “The right of a prisoner to have access to legal advice must of course be subject to such legitimate restrictions as may be necessary in the interests of justice in order to prevent any undue interference with the course of investigation. For instance a legal adviser cannot claim to have interviews with a prisoner at any time he chooses. Similarly, although ordinarily a member of the Bar may be presumed to understand his responsibility in the matter, if there are any good reasons to believe that a particular pleader has abused or is likely to abuse the privilege, that pleader may be refused an interview. But, in such cases the police must of course be prepared to support their action on substantial grounds.” ” Clearly Ooi Ah Phua states the law to be simply this. The right of an arrested person to legal representation starts from the day of his arrest but it cannot be exercised immediately after arrest if it impedes police investigation of\r the administration of justice. Hashim bin Saud v Yahaya bin Hashim & Anor (1977) 2 MLJ 116, is yet another case of an arrested person who had been ordered to be detained under section 117 of the Criminal Procedure Code. He was denied access to his Counsel during the period of his detention despite a request made for that purpose. In a subsequent claim for damages for wrongful detention and denial of his right to consult his Counsel, Harun J., acknowledged that such a right begins from the moment of his arrest but held that the exercise of that right is postponed for as long as the arrested person is detained under section 117 of the Criminal Procedure Code. The Federal Court found that proposition of law to be erroneous and Raja Azlan Shah FJ., (as he then was) pronounced the law to be as follows: “The correct view is that as stated by this court in Ooi Ah Phua’s, supra, case. In spite of the magistrate’s order under section 117 C.P.C. the right of the arrested person to counsel s not lost. Such order is essential only on the basis that it renders legal detention which otherwise would have been illegal in view of the provision of clause 4 of Art. 5 of the Constitution which exhorts that an arrested person if not released shall not be further detained in custody without the magistrate’s authority. The onus of proving to the satisfaction of the court that giving effect to the right to counsel would impede police investigation or the administration of justice fails on the police.” Perhaps the case that answers the issue directly is that of Theresa Lim Chin Chin & Ors. V Inspector General of Police (1998) 1 MLJ 293, where the Supreme Court asked and answered that issue in the following manner. “When should a detainee arrested under section 73 of the Internal Security Act be allowed to exercise his right under Article 5(3) of the Constitution to consult a counsel of his choice? We would reiterate what was held by the Federal Court in Ooi Ah Phua v Officer-in-Charge, Criminal Investigations, Kedah/Perlis. In other words the matter should best be left to the good judgment of the authority as and when such a right might not interfere with police investigation. To show breach of Article 5(3), an applicant has to show that the police had deliberately and with bad faith obstructed a detainee from exercising his right under the Article.” The ratio decidendi in Ooi Ah Phua and Theresa Lim places the burden on the detainee to show that there had been a breach of Article 5(3) by the detaining authority. This is contrary to that reached in Hashim bin Saud’s case (supra) which placed the burden on the police to show that giving effect to Article 5(3) would impede police investigations or the administration of justice. Hashim bin Saud was decided eleven years earlier than Teresa Lim whilst Ooi Ah Phua was decided two years earlier than Hashim bin Saud and thirteen years earlier than Theresa Lim. As the latest judicial pronouncement on the subject of the burden of proof on the breach of the provisions of the second limb of Article 5(3) is that found in Theresa Lim, it follows that the test propounded by that case is to be followed as by necessary implication the later decision represents the state of the law and that the later decision prevails over the earlier decision. The rule of judicial precedent and a departure from a previous decision when it is right to do so long been recognized by this Court as seen from the case of Dalip Bhagwan Singh v P.P (1998) 1 MLJ 1, where at page 14 of his judgment, Peh Swee Chin, FCJ, had this to say “If the House of Lords, and by analogy, the Federal Court, departs from its previous decision when it is right to do so in the circumstance as set out above, then also by necessary implication, its decision represents the present state of the law. When two decisions of the Federal Court conflict on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision.” It is the Appellants’ case that from the time of their arrests and detentions, the Respondent had already decided to deny them access to their Counsel. This is borne out by the Respondent’s conduct in refusing to entertain the Appellants written request for access. Added to that is the reality of the whole situation when all the Appellants were in fact prevented from any communication with their counsel throughout their decisions. In the case of the Second Appellant the duration of his detention fifty days, for unlike the other Appellants, he was released before the expiry of his detention under section 73(1) of the ISA. We were also invited by Mr. Sivarasa Rasiah, Counsel for the Appellants to have regard to international standards when determining the extent and scope of Article 5(3). He argued that such standards would be of persuasive value and assistance when defining the substantive right under Article 5(3). He also pointed out that the approach taken by international communities and reliance on United Nations documents on the subject of legal representation has already received statutory recognition in this country by the passing of the Human Rights Commission of Malaysia Act 1999. That Act established the Human Rights Commission of Malaysia with functions to inquire, inter alia, into complaints regarding infringements of human rights which includes fundamental liberties as enshired in Part 11 of the Federal Constitution. Section 4(4) of the Act singles out the Universal Declaration of Human Rights 1948 (“the 1948 Declaration’) to be one document for which due regard can be had when considering complaints of infringements of human rights insofar it is not inconsistent with the Federal Constitution. In line with his argument, Mr. Sivarasa Rasiah, also referred us to two documents adopted by the United Nations General Assembly in 1977 and 1988 as forming part of the international standard relating to the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment. Section C of the Standard Minimum Rules outlines the conditions under which persons awaiting trial and persons detained without charge should be subjected to and of particular interest is Rule 93 which has following provisions. “93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.” Likewise emphasis is made of Principle 18 in the Body of Principles which contains the following provisions. “Principle 18. A detained or imprisoned person shall be entitled to communication and consult with his legal counsel. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing of a law enforcement official. Communication between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime. Encik Tun Majid bin Tun Hamzah, Senior Deputy Public Prosecutor for the Respondent started his rebuttal by stating that reference to international standards set by the 1948 Declaration and several other United Nations documents on the right access cannot be accepted as such documents are not legally binding on our Malaysian Courts. For this submission he relied on the case of Merdeka University Berhad v Government of Malaysia (1981) 2 MLJ 356 where the 1948 Declaration was described as a non legally binding instrument as some of its provisions depart from existing and generally accepted rules. “It is merely a statement of principles devoid of any obligatory character and it is not part of our municipal law.” Merdeka University Berhad was decided in 1981. This begs the question as to whether acceptance of the 1948 Declaration as a non legally binding instrument has changed by virtue of section 4 (4) of the Human Rights Commissions of Malaysia Act 1999. In my opinion the status and the weight to be given to the 1948 Declaration by our Courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements for treaties. By its very title it is an instrument which declares or sets out statement of principles of conduct with a view to promoting universal respect for and observance of human rights and fundamental freedoms. Since such principles are only declaratory in nature, they do not, I consider, have the force of law or binding on Member States. If the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which Member States can ratify or accede to and those principles will then have the force of law. The fact that regard shall be had to the 1948 Declaration as provided for under section 4 (4) of the Human Rights Commission of Malaysia Act 1999 makes no difference to my finding. This is so as my understanding of the pertinent words in the sub-section that “regard shall be had” can only mean an invitation to look at the 1948 Declaration if one is disposed to do so, consider the principles stated therein and be persuaded by them if need be. Beyond that one is not obliged or compelled to adhere to them. This is further emphasised by the qualifying provisions of the sub-section which states that regard to the 1948 Declaration is subject to the extent that it is not inconsistent with our Federal Institution. In any event on the particular facts of the appeals before us, I do not see the need to have regard to the 1948 Declaration as our own laws backed by statues and precedents as seen from the cases that I have spelt out in this judgment are sufficient for this Court to deal with the issue of access to legal representation. On the same token I do not see the necessity to resort to Rule 93 of the Standard Minimum Rules and Principles 18 of the Body of Principles as somewhat corresponding and parallel provisions are to be found in the Internal Security (Detained Persons) Rules, 1960, made pursuant to section 8 (4) of the ISA. Of particular interest is Rule 81 which contains provisions as to the conditions under which a detainee is entitled to be visited by his relatives and legal adviser. What the Rules do not provide however is when the right to visit can be exercised. That is a matter of substantive law. It is the Respondent’s contention that whilst he does not deny
that the Appellants have the right to counsel of their choice, that
right is suspended throughout the period of their detentions under
section 73(1) of the ISA. He reasoned that the police have the maximum
period of sixty days within which to conduct and complete their
investigations as to whether the Appellants have acted or about
to act in any way prejudicial to the security of the country. The
Respondent submitted further that during the sixty day period, the
police were entitled by law to go about their investigations without
any form of interference from any quarter. It is for that very reason
that written requests for access were not entertained as investigations
were then on-going but this cannot be interpreted to mean that there
was outright refusal on the part of the police. Neither it is correct
to conclude from the tone of their letter dated Sub-section (3) of section 73 of the ISA allows the Appellants to be detained for a period not exceeding sixty days without orders of detention being made against them under section 8. This implies that a detainee may be issued with a section 8 detention order or released altogether before the expiry of the sixty days. In the case of the Second Appellant he was released on the fifty second day of his detention, whilst detention orders under section 8 were issued against the First, Third, Fourth and Fifth Appellants following their initial detentions under section 73 (1). Under these circumstances I consider that it is incumbent upon the police to act promptly and professionally in conducting their investigations into the acts and conduct of the detainees, so that the latters’ fundamental rights to consult counsel of their choice will not become illusory or ineffective. They should not be made to wait indefinitely for the police to complete their investigations before they can have access to their counsel and that too after the expiry of the sixty day period. Whilst I appreciate that a balance must be drawn between the interests of the state on one hand and the interest of the detainees on the other, it is not unreasonable to expect the police to give priority to their investigations so that the rights of the detainees to seek legal representation will not be unnecessarily denied. In this respect, I am guided by the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Saleh & Anor (1992) 1 MLJ 697 where our then Supreme Court adopted the test propounded by the Indian Supreme Court in the case of Smt Manecha Ghandi v Union India AIR 1978 SC 597 when determining whether an impunged legislation violates any fundamental right guaranteed under constitution. The test is that the court should ask itself and consider whether the validity of the state action “directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ‘ineffective or illusory.’” On the facts of these appeals before us, I consider that allowing access only after the expiry of their detentions is conduct unreasonable and a clear violation of Article 5(3). It also supports the Appellants’ contention that denial amount to mala fide on the part of the police that the ISA was used for collateral purpose. The collateral purpose is demonstrated by the fact that the Appellants are facing several charges of being members of an unlawful assembly and that the ISA detentions were used to deny the Appellants the rights to give instructions to their counsel to defend them in the several charges they face. Responding to the Respondent’s argument that under the ISA, the police has absolute powers during the entire period of the sixty day detention to refuse access under the guise that the investigations were on-going, that same submission was raised in Hashim bin Saud’s case (supra). In that case the High Court’s finding that an arrested person’s right to counsel is postponed for as long he is detained under section 117 of the criminal Procedure Code has been held by this Court to be erroneous. Although that case dealt with a section 117 detention I consider that the principles of law are applicable to a section 73(1) detention as well. Likewise I find no justification to support the Respondent’s argument. Moreover the ISA makes no specific provision that there is no right to counsel during the sixty day detention right section 73(1) and I find no support in the Respondent’s contention in the case law that I have alluded to earlier in this judgment. Denying access during the earlier part of the detention would have been acceptable to facilitate the police in their investigations but to stretch that denial throughout the duration of the sixty day period makes a mockery of Article 5(3). Before I move on to consider the remedy available for a breach of the second limb of Article 5(3), I need to correct a finding of the Learned trial Judge that Article 149 of the Federal Constitution validated the denial of access by the police. This cannot be correct. All that Article 149 did is to make provisions that the ISA is valid even though it contains provisions contrary to or inconsistent with Articles 5 (relating to personal liberty), 9 (relating to prohibition of banishment and freedom of movement), 10 (relating to freedom of speech, assembly and association) and 13 (relating to rights to property) or the Constitution. As an example section 73 of the ISA that allows detention for more than 24 hours without the order of a Magistrate contrary to Article 5(4) of the Constitution is valid by virtue of Article 149, where otherwise it would have been void as being inconsistent with Article 5 (4). The ISA makes no provision for denial of access to legal representation which would be inconsistent with Article 5 (3). As such the ISA is still subject to the rights entrenched in Article 5(3) and Article 149 cannot be used to remove such a right. Can habeas corpus lie to secure the immediate release of the Appellants? I answer this by referring to some authorities. In Lee Mau Seng (supra), it was held that such a remedy is not available to persons like the Appellants who after their arrests and under lawful detentions were refused their constitutional right under the second limb of under Article 5 (3). Ooi Ah Phua (supra) followed Lee Mau Seng and habeas corpus was refused on the ground that it is possible for a person to be lawfully detained and unlawfully denied communication with his lawyer. Likewise in refusing to free an arrested person in police custody
in the Indian case of Sundar Singh v
Emperor 1930 air “It was argued by this Counsel that the police custody became “improper” as the police refused to allow even the prisoner’s legal adviser to have access to him. This is somewhat a debatable point, and although I have come to the conclusion that the police were not justified in refusing the prisoner to be interviewed by his legal adviser, I think, this cannot itself be considered to be sufficient ground for setting him at liberty at once in the circumstances of the case.” The rational for refusing habeas corpus in the three cases that I have cited seems to be this. A complaint by a person while under lawful detention that he has been refused access to counsel contrary to the second limb of Article 5 (3) will not have the effect of rendering his detention unlawful and that habeas corpus is not the proper remedy. It would be otherwise if for example there has been a failure to inform the person arrested of the grounds of his arrest, contrary to the first limb of Article 5(3) and such failure would render his subsequent detention unlawful. Clearly it is the legal status of the detention that determines whether habeas corpus can issue to secure the freedom of a detained person as guaranteed by Article 5(2) of our Federal Constitution. Denial of access is not the only ground relied by the Appellants to secure their freedom. From the judgments of my learned brothers, Mohamed Dzaiddin, CJ, Steve Shim Lip Kiong, CJ. (Sabah & Sarawak) and Abdul Malek Ahmad, FCJ, the Appellants have succeeded in establishing that their detentions under section 73(1) of the ISA are unlawful on grounds other than denial of access. Under these circumstances habeas corpus will issue to secure their release, insofar as the First, Third, Fourth and Fifth Appellants are concerned. Finally I concur with my brother judges that for the reasons appearing in our separate judgments all the five appeals are to be allowed. Dated: (SITI NORMA YAAKOB) JUDGE FEDERAL COURT Tuan Haji Sulaiman Abdullah (Encik Sivarasa Rasiah, Encik Christopher Leong, Encik Malek Imtiaz Sarwar & Encik Moganambal Murugappan with him) for the Appellants. Solicitors: Messrs. Daim & Gamany Tingkat 9, Wisma Yakin Jalan Masjid 50100 Dato’ Seri Ainum Said & Dato’ Abdul Gani Patail, Attorney General of Malaysia (Dato’ Azahar bin Mohamad, Encik Mohd Yusof bin Haji Zainal Abiden, Dato’ Mary Lim Thiam Suan, Encik Tun Abdul Majid bin Tun Hamzah & Encik Kamaluddin bin Mohd Said, Senior Deputy Public Prosecutors with them) for the Respondent. Solicitors: Attorney General’s Chambers Level 1-8, Block C3 Federal Administrative Centre 62505 Putrajaya Mr. Roy Rajasingam & Cik Low Beng Choo watching brief for the Bar Council.
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