PART B

QUESTION 2

QUESTION 2

On 10 October 2011 Datuk Trez delivered a speech about the judicial decision in the case of Kok
Wah Kuan [2007] 6 CLJ 341 and disagreed with the court decision that the doctrine of separation of
power is not part of the Malaysian Federal Constitution. Datuk Trez further urged that the YDPA as
an executive shall not be vested with judiciary powers to decide on a child’s future in the
abovementioned case and condemned the YDPA on this matter. The speech was delivered at a legal
conference in Kuala Lumpur and broadcasted live using Facebook. Datuk Trez also prepared and
distributed mini cartoon books and pamphlets about his speech to the audience of the conference.

On 12 January 2012 the Printing Presses and Publications Act 1984 (hereinafter the PPPA 1984) was
gazetted as the new amendment on the printing law and the following are the relevant features:

i. the Minister discretion is no longer ‘absolute’ in the grant, refusal, revocation or suspension
of a licence or determination of its period under section 3(3) of the PPPA 1984.
ii. Judicial review is no longer disallowed under section 13A of the PPPA 1984.
iii. It imposes a strict ban on publishing and distributing pamphlets without authorisation by the
Minister with punishment for a term not exceeding 15 years and fine not exceeding
RM150,00 or both [section 7AA of the PPPA 1984].

On 21 July 2012 at about 10.00 am Datuk Trez was apprehended by the Bukit Aman police. He was
questioned and detained in a remand centre. He asked for the reasons for his arrest and was
informed by the arresting officer that he was arrested for ‘uttering seditious speech’ and ‘publishing
and distributing pamphlets without authorisation by the Minister’. He requested to see a lawyer, but
that request was denied. He was produced before a Magistrate’s court on 24 July 2012 at 10.00 am
and charged with two offences.

The first charge was under section 4(1)(b) of the Sedition Act 1948 – uttering seditious speech during
the legal conference. The second charge was for publishing and distributing pamphlets contrary to
section 7AA of the PPPA 1984.

Datuk Trez seeks your expert advice on the following constitutional issues:

a) the infringement of his constitutional rights;

(12 marks)
b) Datuk Trez pleaded not guilty at the Kuala Lumpur Sessions Court. Datuk Trez argued that he
has a right to freedom of speech as a citizen and his speech was honestly showing that the Ruler has
misled and the judicial decision was a big mistake. Datuk Trez wishes to intiate a judicial review to
argue the validity of the Sedition Act 1948 and also seek your advice on this matter.

(8 marks)

Issue:
1. Whether Datuk Trez’s right under Article 5(3) which is the right for legal representative has been
infringed?

2. Whether Datuk Trez’s right under Article 5(4) which is the right to be produced before the
magistrate within 24 hour has been infringed.

3. Whether Datuk Trez is entitled to claim the remedy for habeas corpus as provided in Article 5(2)
of the Federal Constitution has been infringed?
PART B

QUESTION 2

a) Infringement of constitutional rights

1. FIRST ISSUE

The first issue is whether Datuk Trez’s right under Article 5(3) which is the
right for legal representative has been infringed?

LAW

Article 5 of the Federal Constitution provides the right to life and personal
liberty of a person. Personal liberty is the power of doing what is allowed by the law.
In the context of Malaysia, the term ‘personal liberty’ was further explained in the
case of Public Prosecutor v Tengku Mahmood Iskandar [1973]1, ‘personal liberty is
freedom from unlawful arrest and detention, it is protection against bodily punishment
and suffering’.

Article 5(3) of the Federal Constitution can be divided into two limbs, the first
limb provides the right to be informed as soon as may be on the ground of arrest and
the second one states that the arrestee shall be allowed to consult and be defended
by a legal practitioner of his choice.

Based on the first limb of the Article 5(3),