The document discusses Article 5 of the Federal Constitution of Malaysia, which protects individuals from being deprived of life or personal liberty except in accordance with law. It summarizes the rights this article provides, including the right to know the grounds of arrest, the right to legal representation, and the right to be produced before a magistrate. It also discusses exceptions to these rights under emergency laws and the remedy of habeas corpus.

1. Haslinda Mohd Anuar
Senior Lecturer
School of Law
COLGIS

2.  A.5(1) – no person shall be deprived of his life or personal
liberty save in accordance with law
 ‘person’ – citizens & non-citizens
 ‘life’ – right to seek and continue in public or private
service employment subject to removal for good cause by
resort to fair procedure (Tan Tek Seng v Suruhanjaya
Perkhidmatan Pendidikan); right to livelihood (Lembaga
Tatatertib Perkidmatan Awam v Utra Badi); native
customary rights (Nor Anak Nyawai v Borneo Pulp); the
enjoyment of a reasonably healthy and pollution free
environment (Hong Leong v Liew Fook Chuan); right to
reputation (Lembaga Tatatertib Perkhidmatan awam v
Utra Badi)

3.  ‘personal liberty’ – liberty relating to or concerning the
body of the individual (Govt v Loh Wai Kong); freedom
from unlawful arrest and detention; protection against
bodily punishment and suffering (PP v Tengku Mahmood
Iskandar); as long as there is no arrest or detention there
is no deprivation of rights, life or personal liberty (Aminah
v Superitendent of prison); a person’s right to seek judicial
review (Sugumar Balakrishnan v Pengarah Inigresen
Negeri Sabah); a person’s right to change reference to her
gender in her MyKad after successful resignment surgery
from male to female (Re JG, JG v Pengarah Jabatan
Pendaftaran)

4.  ‘in accordance with law’ – the state have no inherent
power to deprive any person of his life or liberty or to
interfere with a person except in accordance with a known
law.

5. 1. Right to know the grounds of arrest
2. Legal representation
3. Production before a magistrate
4. Remedy of habeas corpus

6.  1st
limb of A.5(3)
 The consequence of the rule;
 The police are not empowered to arrest for the sole
purpose of questioning or for fishing for evidence
 the grounds must already be in existence at the time a
person is arrested
 The police must have a reasonable suspicion that
seizable offence has been committed, is being
committed or is about to be committed.
 The police must communicate the ground of arrest to
the arrestee as quickly as is reasonable in the
circumstances of the case (Aminah v Superitendent of
prison; Nik Adli Nik Abdul Aziz v Ketua Polis Negara)

7.  Oral communication is sufficient (RE P.E Long @
Jimmy)
 Strict legal terminology need not be used but enough
must be made known to afford the arrestee the
opportunity of giving an explanation (Chong Kim Loy )
 The arrestee has the right to know precisely the reason
why he was being arrested ( Lee Gee Lam)
 In preventive detention under the DDA, the detainee
must, at the time of the service of the order, be
furnished with the statement containing the grounds
and allegations of fact on which the detention was
directed.

8.  However, the right under A.5(3) can be deprived under the
authority of emergency laws;
 S.3(1) of the Public Order Prevention of Crime
Ordinance requires the arresting officer to have ‘reason
to believe that there are grounds’. It does not require
the ground to be informed to the arrested person’. (Kam
Teck Soon v Timbalan Menteri)
 A.150(6)

9.  2nd
limb of A.5(3)
 The right to legal representation is available at 2 stages –
 After the arrest
 At the trial or judicial proceedings
 After arrest
 The consultation with a lawyer in a police lock-up can be
postponed pending police investigation (Ooi Ah Phua v OIC
Kedah/Perlis; Hashim Saud v Yahya Hashim).
 In Ramli Salleh v Insp. Yahya Hashim (1973) court ruled that
‘in order to render such interview effective it should be held
not within the hearing of any member of the police for under
the law communication between the solicitor and client is
privileged. It should, however, be within the sight of the
police’

10.  But in Tee Yam @ Koo Tee Yam v Timbalan Menteri
(2005), it was held that the right to legal representation
is not violated by the presence of police officers in sight
and hearing at meetings between a detainee and his
counsel because Internal Security (Detained Persons)
Rules 1960.

11.  s28A (2) to (7) CPC –
 a police officer, before commencing any form of
questioning or recording of any statement from an
accused, has a statutory duty to inform the arrestee that
he may communicate with a relative or friend or legal
practitioner.
 The officer is required to give the arrestee a ‘reasonable
time’ for the consultation to take place.
 The consultation shall be within the sight but not within
the hearing of the police officer.
 Pending the consultation the officer shall defer any
questioning or recording of any statement.

12.  The officer has a duty to provide reasonable facilities,
free of charge, to enable the right of consultation to be
exercised.
 However, the above rights shall not apply if an officer,
not below the rank of DSP, reasonably believes that the
rights under subsections (2) to (7) are likely to result
in an accomplice absconding, evidence being lost,
witnesses intimidated or safety of other persons
compromised.

13.  During judicial proceedings
 The right to be represented in court was enforced
strictly by the court (Saul Hamid v PP).
 Under Public Order Prevention of Crime (Procedure)
Rules 1972 – a right to be represented by legal counsel
during proceeding before the Advisory Board, a real &
substantive right & cannot be refused (Parasuraman
Velu v Ketua Polis)
 If the accused person is not represented by a lawyer,
that does not invalidate the proceedings & does not
mean that the judicial proceedings cannot be
commenced (Mohamed Abdullah v PP)

14.  All arrests must be reported to the judiciary
 A.5(4) FC; s.28 & S.117 CPC
 ‘chain smoking orders’ – an accused is arrested in one
district; detained for 14 days on the orders of a magistrate;
released & re-arrested in another district & detained for
another 14 days on the orders of another magistrate, ‘as
the police deem it necessary’ – it was allowed in Dasthigeer
Mohamed Ismail v Kerajaan (1999)
 Exceptions: detainee under Restricted residence laws,
aliens & under immigration laws, the 24 hour period is
extended to 14 days.

15.  Amendment to S.28(1) & (3) CPC – the accused under
remand may be produced before a magistrate even on a
holiday or a weekend.
 Amendment to S.117 CPC – to prevent repeated orders of
remand.
 For offences which are punishable with imprisonment
of less than 14 years, the detention shall be no more
than 4 days on the first application & no more than 3
days on second application
 For offences punishable with death or imprisonment of
14 years or more, detention shall be no more than 7
days on first application & o more than 7 days on
second application.

16.  A.5(1) & (2); s.25(2) with Clause I of the Schedule, Courts
of Judicature Act 1964; s.23, 28, 117 & 365 CPC.
 Locus standi – the application can be made by the prisoner
himself or by someone else on his behalf (Theresa Lim
Chin v IGP); citizen as well as non citizen.
 Remedy of right –
 a remedy of right for anyone detained unlawfully
 The court has no discretion to refuse habeas corpus if
the detention was unlawful or has become unlawful due
to subsequent non-compliance with the law (Andrew v
Superintendent Pudu Prison; Re Tan Boon Liat)

17.  The existence of an alternative remedy like appeal is
not bar to the writ (Yeap Hock Seng v Minister; Ahmad
Bashid Abdul Malek v Timbalan Menteri; Mohd Raymee
Ismail v Ketua Pusat Serenti Tiang Dua)
 A person released on habeas corpus can sue for
damages for the period during which he suffered
unlawful imprisonment (s.438 & S.175 CPC)

18.  Grounds for issuance writ
 Illegality – substantive ultra vires, illegality of
substance; excess of jurisdiction or lack of jurisdiction
 Irrationality – abuse of power, illegality of purpose,
extended ultra vires, bad faith, unreasonableness,
arbitrary exercise of power or lack of evidentiary basis.
 Procedural impropriety – illegality of procedure or
procedural ultra vires

19.  Grounds on which habeas corpus may be refused
 The detainee alleged that he had been assaulted; the
manner & condition of the detention were alleged to be
oppressive; complained on inhuman, cruel & degrading
treatment & condition of detention; person who is
under an order of restricted residence (not physically
detained); for questioning the admissibility of evidence,
to question delay in holding of a trial; to test the
constitutionality of an Act of Parliament; to investigate
into the sufficiency of the reasons or grounds relied
upon by the detaining authority.

20.  To whom should the writ be addressed to?
 Despite the detainee not being in the custody of the
police but in the custody of the Minister who had by
then issued a preventive detention under S8 of the ISA
(Mohammad Ezam Mohd Noor v Ketua Polis Negara,
2002)
 But in Sejahratul Dursina @ Chomel Abdullah v
Kerajaan (2006) – held: the writ had to be addressed to
the person having actual physical custody of the
detainee.