GROUP 2 CASE ANALYSIS E MAGAZINE

LAW084 E MAGAZINE

ART 5. FC
ISSUE 12 •  VOL 22  •  APRIL 2022

CONTENT

FACTS OF THE CASE
LEGAL ISSUE
RELEVANT LAWS
APPLICATION
CONCLUSION

THE MALAYSIAN CASE

RAMLI BIN SALLEH V INSPECTOR YAHYA BIN HASHIM



ASSA SINGH V MENTERI BESAR JOHORE



EXCLUSIVELY BY: 2021479018
2021626752
MUHAMMAD SHAMIEL MUHAMAD SAHRIN 2021894536
NUR SABRINA SYAUQINA NOR AZAM 2021891626
MUHAMMAD HAKEEM AHMAD KAMAL 2021687826
NURIN BATRISYIA MOHAMED IQBAL
NUR SYARAFANA MOHD SHUKOR

Facts of the case

case 1 :

Ramli bin Salleh v Inspector Yahya bin Hashim

The defendant was apprehended by the Although an application for habeas corpus
police based on the quality of a burglary was filed right away, the candidate was
report, according to the facts. Following discharged before the case was brought to
his appearance before a judge, the accused court. The judge decided that the matter
was remanded in custody for eleven days that arose in the circumstance was of great
in the presence of police authorities. importance and open intrigue, and that it
was proper for him to make a judgement
During that time, a solicitor and an later.
advocate applied to represent the
candidate, as well as request a chance to The question was whether an individual who
visit the detainee for counsel. The is detained and remanded in police custody
application was denied, and the has the right to counsel and is protected by
respondent stated that the advocate and his own genuine expert judgement before the
attorney could only meet with the next arrest or within a reasonable amount of
candidate once the detention period had time before the police investigation is done.
expired.

case 2 :

Assa Singh v Menteri Besar Johor

The applicant, Assa Singh was ordered to be Then, the applicant argued that the
arrested and detained under the provisions Restricted Residence Enactment has no
of Restricted Residence Enactment by provision in informing his grounds of arrest
Menteri Besar of Johore in order to relocate and detention, his right to be presented
him to another district to preserve security before a magistrate or for an enquiry at
and public order. which the detained person could meet the
allegations against him, for judicial review
and for limitation of the period of
detention. He argued that the Enactment
was inconsistent with Article 5 and Article
9 of the Federal Constitution and his
individual rights were violated.

page 1

Legal issue

case 1 : case 2 :

Whether an arrested person has the right to Whether an arrested person has the
consult and be defended by a legal practitioner of right to be informed of his ground
his own choice right after being arrested or within of arrest under article 5(3)
a reasonable time before police investigation is
completed.

LAW

ARTICLE 5 (3) OF THE
FEDERAL CONSTITUTION

Article 5(3) 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.

ARTICLE 5 (4) OF THE
FEDERAL CONSTITUTION

Article 5(4) of the Federal Constitution provides that
an arrested person has twenty-four hours to appear
before a magistrate. This is to ensure that the
detainee was not treated cruelly. This, however,
applies only to citizens; for non-citizens, the period is
extended to fourteen days. However, there are
circumstances in which detainees subject to
restricted residence laws are not eligible for this
benefit.

page 2

LAW AND APPLICATION 2 RIGHTS OF AN ARRESTED PERSON UNDER ARTICLE 5 OF
FEDERAL CONSTITUTION
COURT DECISION CASE 2
COURT DECISION CASE 1 Right to consult and be defended by legal practitioner of his choice

under Art. 5(3)

It can be referred to the case of Ramli bin Salleh v
Inspector Yahya bin Hashim, The High Court Judge, Syed
Agil Barakbah decided that the right of a person detained
and remanded in police custody to consult and be
defended by a legal practitioner of his choice, as provided
in Article 5(3) of the Federal Constitution, starts on the
day of his arrest, even if the police investigation is not
completed yet

It was further elaborated that the respondent's action in
this case, restricting the learned counsel's application to
interview his client after the detention period ended was
unacceptable, and the police should not delay or obstruct
such interviews on arbitrary or fanciful grounds in order
to deny the accused of his fundamental right as it violates
Article 5(4) of the Federal Constitution. This proves that
in this case, Ramli has a right to consult and be defended
by legal practitioner of his choice as has been stated in
Article 5(3) of the Federal Constitution.

Right to be informed of the grounds of arrest under Art. 5(3)

This provision can be seen in the case of Assa Singh v Menteri Besar
Johore. In this case, The Federal Court judge, Azmi LP decided that
since the Restricted Residence Enactment is a law relating to public
security, hence, there is no inconsistency in its provisions with Article
9 of the Federal Constitution. Even if the Enactment has no similar
provisions as in clauses (3) and (4) of Article 5 of the Constitution,
some adaptations may be necessary in order to bring it into
accordance with the Constitution and those clauses must therefore
be read into the provisions of the Restricted Residence Enactment.

The court also decided that the delegation by Menteri Besar of Johore
of his powers under the Enactment is considered to be valid and he
can validly exercise all the powers and duties of the Minister under
Section 2 of Restricted Residence Enactment. Based on this case, it
was unfair that the fundamental rights of Assa Singh under Article 5
of the Federal Constitution were violated, the police officer who had
detained Assa Singh should have informed the reason of relocating
him to another district which was part of the security.

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CONCLUSION

CASE 1 :

It is true that the law requires the police
to carry out investigation as to fulfil the
sacred prerequisite of clause (1) of article
5 with the end goal of conveying guilty
parties to equity, it is however, important to
note that the Supremacy of the Federal
Constitution shall not be questioned.
Despite the fact that his police examination
has not been finished, the privilege to
counsel for remand detainees held in
police custody, as provided for by Article
5(3) of the Federal Constitution of
Malaysia, begins to operate on the day of
his arrest and detention.

CASE 2 :

Even though the RRE violated Singh's rights,
it was not declared unlawful. Instead, they
claimed that the RRE could still be used if
"these rights were read into the Enactment."
Only actions of law passed after
independence that were inconsistent with
the Constitution would be void, while
Article 162 exempted laws passed previous
to independence. As a result, the RRE's
violation of Singh's rights was found to be
constitutional, and Singh was not released.

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LAW 084

April | Vol. 02