CONSTITUTIONAL LAW II (LAC 2083)

TUTORIAL ACTIVITY 4 (WEEK 8)

GROUP 1 (TLB 1) (KLB 1)

 NUR AMALIA BINTI AWANG JALIL (1181106)

Question

Dr. Gilbert was a former graduate student in a law school in a public university in
Malaysia. Dr. Gilbert who was on medication for his lung disease, was active in non-
governmental organization that defend the right of Lesbian, Gay, Bisexual and
Transgender (LGBT) community in Malaysia. On 30 April 2019, Dr. Gilbert joined a
rally to push the government to uphold the rights of LGBT community. Police issued a
statement that the assembly was against the Peaceful Assembly Act 2012 and
subsequently arrested the participants including Dr Gilbert. He had been remanded for
seven days. Dr. Gilbert claimed that he has the right to assemble peaceably under the
Federal Constitution and that the Peaceful Assembly Act 2012 is against the right to
assemble. He also argued that he was only allowed to consult his legal counsel five
days after the arrest and he was also denied the medical treatment during remand in
which his health has deteriorated.

If you are a legal counsel representing Dr. Gilbert, how would you advise him?
Support your answer with relevant constitutional provisions and decided cases.

( 15 marks)
Answer.

The issue is whether Dr. Gilbert action by attending LGBT rally was contradict with
Peaceful Assembly Act 2012

The constitutional rights provided in Article 10(1)(a), (b) and (c) are only conferred on a
citizen which clearly states that “every citizen”. Therefore, a non-citizen has no right to complain
of breach of these rights. Restrictions on the freedom of speech and assembly like in the Peaceful
Assembly Act 2012 and also Printing Presses and Publications Act 1984, are too much
restrictions in these two laws.

Back then, under section 27 of the Police Act, citizens need to apply for a police permit
to have gatherings of more than three people. However, under the Peaceful Assembly Act 2012,
such requirement does not require anymore. Under this Act, the organizer of assemblies must
notify the authorities 10 days in advance under section 9(1) where no notice is required for
meetings in designated places or if the assembly is an exempted assembly. Nevertheless, in
response to a notification, the police do nothing, it is regarded that silence is deemed consent as
stated in section 14(2).

In the case of Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor, Hamid Sultan
JCA in his dissenting judgement, Article 10 of the Constitution did not permit to criminalize an
assembly which was not licensed. In essence, the right to assemble peacefully is a guaranteed
right in the constitution. Although art 10(2)(b) allows legislation to permit restrictions in respect
of the right to assemble, it is settled law that the restriction could not amount to a prohibition.

In Lau Dak Kee v Public Prosecutor, Mohamed Azmi J (later SCJ) stated that Article
10(1) of the Federal Constitution guarantees the rights of every citizen to freedom of speech,
assembly and association. These rights are, however, subject to any law passed by Parliament.
Under art 10(2)(a) of the Constitution, Parliament is empowered to restrict these rights through
the provisions of the law.
 In the application to this case, Dr. Gilbert has right to participate in any assembly as
stated in Article 10(1) that any citizen has the right to freedom of speech and expression.
Therefore, in the provision stated above, citizen does not have to apply for a police permit for
any gatherings more than three people. Therefore, if we have a look at Peaceful Assembly Act
2012, this assembly does not make any wrongful action such as bring something illegal from law
view or weapon to the assembly. So, the action made by Dr. Gilbert by joining the LGBT rally
was not wrong and in accordance with the law provided to him.

In conclusion participation of Dr. Gilbert in the LGBT rally was not contradict with
Peaceful Assembly Act 2012 as the rally is a peace assembly. In advising Dr. Gilbert, he can
challenge the detention was unlawful detention and may asked for remedies from the police.

The second issue is whether the delay of allowing Dr. Gilbert consulting his lawyer
against his right as a detainee under Article 5 (3) of Federal Constitution.

Besides, for the second issue, it falls under Article 5(3) of the Federal Constitution, which
is further codified in Section 28A of Criminal Procedure Code which states the right to be
consulted and defended by legal practitioner of one’s choice. This is to make sure the detainee
know his rights under the law. For instance, in the case of Public Prosecutor v Phee Boon Poh &
Ors, the court held that Section 28A of the CPC and Article 5(3) of the FC are joint rights of an
accused person. To that extent, as a matter of judicial practice, before a court exercises its
judicial discretion, there are procedural safeguards and fairness that should be followed in
respect of an application of this nature. Therefore, the reasons justifying the deprivation of the
applicants’ liberty must be clearly stated. Failure of the Senior Assistant Registrar (SAR) to
determine on the said initial objection had deprived the applicants from their fundamental rights
to a legal counsel thereupon causing adverse consequences to the applicants.

However, even though detainee have the right to consult counsel, 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 wrong- doers by apprehending them and
collecting whatever evidence exists against them just like in the case of Ooi ah Phua v Officer
in- Charge Kedah/ Perlis. In that case, the court held that a delay of ten days between arrest and
access to counsel was lawful as Suffian LP emphasized it is true that the right begins from the
moment of arrest but it cannot be exercised immediately after arrest.
 In order to apply the cases in this issue where Gilbert only allowed to consult his legal
counsel five days after the arrest is contradict with the Article 5 (3) of Federal Constitution
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. In this case,
Gilbert already apply for legal practitioner under his choice at the time he was arrested but it was
denied by the officer until day five after he was arrested and it was protected under Article 5 (3)
of Federal Constitution where he has the right to defend himself by consult a lawyer by his own
choice. Such in the case of Public Prosecutor v Phee Boon Poh & Ors that there are procedural
safeguards and fairness that should be followed. Therefore, he can challenge under this provision
if the consult of the legal practitioner has been delayed by the police because of the right that he
has in order to defend himself.

To conclude, the delay of allowing Dr. Gilbert to consult his lawyer was indeed negated
his right as detainee under Article 5 (3) of Federal Constitution. In advising, Dr. Gilbert have
ground of claim against police department result from their violation of his right and he may also
claim for remedies.