NAME
: MUHAMMAD MUHAMMAD AFFIQ BIN PARTHI
STUDENT ID : 2011898526 GROUP
: LWB01J
SUBJECT
: LAW437 (CONSTITUTIONAL LAW)
LECTURER
: PROFESSOR EMERITUS DATUK DR. SHAD SALEEM FARUQI
Since the communist insurgencies starting in the year 1945 after the fall of Japanese era, our celebrated Malaysian Constitution was equipped with relevant provisions in order to combat and also to control subversive forces revolving around the world at that time, until today. In Abdul Zamyns case, there are many issues to be discussed and analysed. One of the issue involved Internal Security Act 1960 or as it is famously recognized today, ISA. The act came into force on August 1st , 1960, specially crafted to deter communist activity and fight communism from becoming mainstream in the Government of Malaya (now Malaysia). At the present time, ISA functions to maintain public order by posing restraint on potential harm done or will be done to the country for the sake of national security. But first, we shall discuss the issues in chronological order, starting with Abdul Zamyns arrest in the first place. The first issue is whether Abdul Zamyns arrest by mistake of identity of the real criminal, Abdool Zameen is recognized by the law. The police had mistaken him for the famous fugitive criminal, wanted by the Indonesian government, Abdool Zameen (thereafter referred to as Zameen). At the time of arrest, Abdul Zamyn (thereafter referred to as Zamyn) did not have any identification with him because he lost it a few days back, thus causing a confusion of identity to the police. As what have been prescribed by the Section 32 of the Police Act 1967, the police are not liable for any act done under an authority of warrant. There has been many cases of wrongful arrest occurring and the police had never been found liable as long as he can prove a valid warrant of the arrest. In this case, Zamyn was wrongfully arrested, and the police at that time were searching for a criminal, Zameen. The arrest can never be wrongful as there was a warrant to capture the real criminal, Zameen, even though the police had mistaken Zamyn for him. However, during Zamyns arrest, excessive force were used against him when the police began to beat him up and starts questioning him about his terrorist connections. The second issue here is whether Zamyns was given fair treatment by the authority during the period of his arrest and also during his interrogation by the authority. Referring to the relevant facts here, the act of the police beating him was unconstitutional as it is contradictory to Article 8(1) of the Federal Constitution. Article 8(1) provides that every person is equal before the law and entitled to equal protection of the law. It is clearly illustrated in the case of PP v Tengku Mahmood Iskandar (1973) where the defendant is of a higher social status as he is a Prince of a royal house. In delivering his judgement, Raja Azlan Shah J stated that Article 8 of the Federal Constitution ensures only one law exist to govern peoples of different status. In this case, we can say that Zamyn was given unfair treatment by the police at the time of his arrest and the use of excessive force against him was discriminative. Regardless of his status as an alleged criminal, Zamyn was supposedly being treated fairly and the use of excessive force over him was unacceptable, unconstitutional and inhumane. The third issue in this matter I regard as the most crucial issue in the case. The issue is whether Zamyn was given a fair opportunity of being heard as what have been prescribed by the second principle of natural justice, audi alteram partem. The rule literally means hear the other side. It states that a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and to answer the other sides case. In Surinder Singh Kanda v Government of Malaya (1962), a police inspector was dismissed by the Commissioner of Police. Before he was admitted to the Board of Inquiry but the findings were only made available to the adjudicator, not to Inspector Kanda himself. This means that the appellant
would not have any idea of what statement had been made affecting him, or whatever evidence submitted against him. These conducts were contrary to the principle of audi alteram partem. In this matter, Zamyn was not given any chance to be heard, in fact, he was ignored when he tried to clarify or introduce himself. According to the relevant facts, Zamyn protested all along that he is a Malaysian citizen; that he is not the wanted Abdool Zameen and that he is innocent. This clearly contravene to the rule of natural justice that has been adopted by our country of common law. Zamyn should have been given a chance to explain and clarify matters himself. To make matters worse, six hours after his arrest, Zamyn was told that he is now an ISA detainee. As the law has stated, according to section 73(1) of Internal Security Act 1960, a police officer may arrest and detain without a warrant any person who will act, who is about to act or has acted any action threatens the security of Malaysia, pending enquiries. The provision also added that with relation to section 8 of the ISA 1960, a minister may add to the period of detention if he is satisfied with the argument provided by the relevant authority about the detainee. In this case, the possibility of Zamyn being detained longer is high as he does not have any identification with him. Fortunately, his further detention under the ISA has captured the attention from the media, who then posted pictures of him in the newspaper, which was later saw by his wife. Even though ISA detainees are not allowed to see a lawyer or to be presented before a Magistrate, Zamyns wife could have apply for a writ of habeas corpus through a legal representative. The celebrated remedy, the writ of habeas corpus is a prerogative writ used to challenge the validity of a persons detention, either in official custody or in private hands. A lawyer on behalf of the detainee may file the writ if his client were wrongfully detained, as what have been illustrated in the case of Theresa Lim Chin v IGP (1988). In this matter, as Zamyn was unlawfully arrested, his lawyer can apply for the writ of habeas corpus on the ground of mistaken identity. A person, when released on habeas corpus may then sue the authority which has unlawfully detained him and in this case, Zamyn may claim for damages for excessive use of force over him and wrongful detention done towards him. To sum up, a person who has been detained unlawfully may apply for the writ of habeas corpus to ensure his rights were protected. A person also needed to be treated equally, as our nations constitution prescribed such rights to be promoted. In our world today, people must stand up and fight for their rights as it would affect their lives indirectly. Furthermore, in my opinion, people should not afraid to do what is right and in relation to the case of Abdul Zamyn, he is innocent and thus, he should be given an opportunity to present himself to the law. In the light of recent event, our Prime Minister, Dato Seri Najib Tun Abdul Razak has announced that Internal Security Act will be abolished in March 2012 and replaced with a new security provision. This clearly will bring more justice and reduces abuse of powers or ultra vires by the authorities.
