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Tutorial Activity 6 (Group 1 - TLB 3)

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58 views

Tutorial Activity 6 (Group 1 - TLB 3)

Uploaded by

Nur 'Izzati
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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LAC2083

CONSTITUTIONAL LAW II

TOPIC:

TUTORIAL ACTIVITY 6

CASE REVIEW

PALAUTAH A/L SINNAPPAYAN & ANOR v TIMBALAN MENTERI DALAM


NEGERI, MALAYSIA & ORS [2010] 3 MLJ 295

GROUP:

GROUP 1

TLB 3 / KLB 1

GROUP MEMBERS:

NO. NAME MATRIC NUMBER


1. AINA MAISARAH BINTI HUZAINI 1202113
2. NUR 'IZZATI BINTI ABU BAKAR 1202114
3. MUHAMMAD FIRDAUS BIN RAZALI 1202115
PALAUTAH A/L SINNAPPAYAN & ANOR v TIMBALAN MENTERI DALAM
NEGERI, MALAYSIA & ORS [2010] 3 MLJ 295

1. FACTS OF THE CASE


The appellants were charged by the Sessions Court on 21 October 2000 for an offense
under Section 304 namely that a person who commits an act of murder without intent
to kill shall be punished under the Penal Code. (Culpable Homicide). Subsequently,
on 13 October 2008 the appellants were acquitted and discharged but when they were
out of the Sessions Court, they were re-arrested and taken to the Temerloh Police
Station for 60 days under the Emergency (Public Order and Crime Prevention)
Ordinance 1969. The appellants were not given the right to legal representation during
the period of detention. A number of applications made by the appellant was denied
until the retaining order issued against them on December 11, 2008. An appeal or
application made by the appellant for a writ of habeas corpus was rejected by the
High Court.

2. CONSTITUTIONAL ISSUES
a) Whether the appellants have been deprived of legal representation as provided
under Article 5(3) of the Federal Constitution during the 60 days detention under
s 3 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969
('the Ordinance') and this would invalidate the detention process issued under s
4(1) of the said Ordinance.
b) Whether the doctrine of autrefois acquit is applicable to both the appellants' case
and thus the detention orders dated 11 December 2008 issued against the
appellants were null and void.

3. CONTENTIONS OF THE PARTIES

a) CONTENTIONS OF THE APPELLANTS


- The appellants argued that their fundamental right as guaranteed under Article
5(3) of Federal Constitution had been deprived by the respondents.
- The appellants were not given access to legal representation during the 60 days
of detention under Section 3 of the Emergency (Public Order and Prevention
of Crime) Ordinance 1969 (“the Ordinance”). Article 5(3) of the Federal
Constitution states that; 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. Thus, the said provision of
the Federal Constitution would invalidate the detention process produced
under section 4(1) of the Ordinance.
- The appellants further contended that the Sessions Court in Temerloh had
acquitted and discharged them from the charges. Therefore, the detention
orders later issued against them were thereof invalid based on Article 7(2) of
the Federal Constitution. The provision states that a person who has been
acquitted or convicted of an offence shall not be tried again for the same
offence except where the conviction or acquittal has been quashed and a retrial
ordered by a court superior to that by which he was acquitted or convicted.
The appellants claimed that they should not be punished twice for the same
offence as aforementioned in Article 7(2) of the Federal Constitution.
- The appellants also argued that there is clear evidence that the Deputy Internal
Security Minister ("Deputy Minister") had not applied his mind to the
allegation of fact to satisfy himself that the appellants were members of a
criminal gang involved in crime of violence, which was the grounds for the
detention orders, and the Deputy Minister had prejudiced the appellants by
acting mala fide.

b) CONTENTIONS OF THE RESPONDENTS


- The Deputy Minister had stated in his affidavit-in-reply that he was aware of
the acquittal and discharge of the appellants by the Sessions Court at
Temerloh, however, his exercise of power under the Ordinance to detain the
appellants is not the same as the Attorney General's exercise of power to
charge the appellants before the court under criminal law.
- The Deputy Minister had not acted mala fide.

c) JUDGMENT
 First issue;
- The defendants' failure to provide the appellants with legal representation as
required by Article 5(3) of the Federal Constitution throughout their sixty
(60) day detention under Section 3 of the Ordinance will not render the
appellants' habeas corpus application successful on such ground.
- Any irregularity in the arrest and detention of the appellants in this case made
under Section 3 of the Ordinance when it has been superceded by one under
Section 4(1) of the Ordinance is not a relevant matter for consideration.
- The appellants have not alleged any irregularity in their arrest and detention
during the 60 days they were detained. However, the appellants' complaints
were focused on the fact that they have been denied the right to legal
representation at that time.
- A complaint made by a person under lawful detention that he has been
refused access to counsel which contrary to the second limb of Article 5(3)
will not render his detention unconstitutional, and habeas corpus is not the
proper remedy.
 Second issue;
- The doctrine of autrefois acquit cannot be applied to the appellants' case
because the scope and extent of protection provided in Article 7(2) of the
Federal Constitution only applies to criminal offences in which a person who
has been acquitted or convicted of an offence by the court shall not be tried
again for the same offence.
- In this regard, the court will absolutely hold that the preventive detention of a
detainee under the Ordinance cannot be equated with punitive detention of an
accused person found guilty of committing an offence under criminal law,
and that preventive detention imposed on the appellants in this case is not
subject to Article 7(2) of the Federal Constitution.
- There is a difference between the power conferred under Article 145 of the
Federal Constitution which allows the Attorney General to decide the course
of prosecution and the power of the Deputy Minister pursuant to the
preventive law under Articles 149 and 150 of the Federal Constitution.
- The scope of Article 7(2) of the Federal Constitution is limited to punitive
detention alone deriving from criminal proceedings instituted under the
Attorney General.
- Since the appellants were later detained under the power of the Minister
under Section 4(1) of the Ordinance, it therefore follows that Article 7(2) of
the Federal Constitution and the principle of autrefois acquit do not apply to
the appellants' case.
- The appellants’ appeal was dismissed.

d) RELEVANT CONSTITUTIONAL LAW PRINCIPLE(S)


- Denied legal representation under Article 5(3) - lawful detention that has been
refused access to counsel contrary to the second limb of the provision.
- Validity of detention process Section 3, Section 4(1) public order and
prevention ordinance - has no effect on his detention and not right to habeas
corpus.
- Doctrine of autrefois acquit applicable - did not apply in the appellant’s case.
The appellant was found guilty thus not protected under the preventive
detention according to the ordinance.

e) COMMENTARY
The appellant contention that she was denied the right to attorney on
ground that it was contrary to the second limb of the Article 5(3) of the Federal
Constitution did not make the detention unlawful and the appellant are not
entitled to habeas corpus. However, the doctrine of autrefois acquit only apply
to cases where a person who has been acquitted or convicted of an offence. In
that case, the court would not allow that person to be tried again under the
same offence. However, in the present case, the preventive detention of the
appellant has no link to Article 7(2) of the Federal Constitution, rather directly
linked to Articles 149 & 150 of the Federal Constitution.

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