Article 5 of the Malaysian Federal Constitution provides rights to liberty of the person but contains some defects. It outlines exceptions where a person may be deprived of liberty but these exceptions have been interpreted too narrowly by courts. Compared to international standards like the European Convention on Human Rights, Article 5 does not sufficiently protect personal liberty and is easily overridden by security laws. Reforms are needed to strengthen Article 5's protections, such as amending absolute emergency powers and defining 'law' to incorporate principles of natural justice.

1. Nelfi Amiera Mizan
Multimedia University
Article 5 – Liberty of the Person
In all collections of human rights over the world, rights to life and personal
liberty are the most precious among all. The depravation towards it, will affect the
whole structure of freedoms. Even though there must be restrictions to the rights,
however, the freedom should be as wide as possible. In Malaysia, Article 5 of the
Federal Constitution (FC) provides rights to liberty of the person; however, some
defects in it should be reform by adopting the principle of constitutionalism.
Article 5(1) states that, no person shall be denied of his personal liberty
unless the law allows it to be. Article 5(2) provides a right of habeas corpus to a
person who is unlawfully. Article 5(3) gives right to the arrested person to be
informed the grounds of his arrest as soon as may be besides having right for a
counsel. While, Article 5(4), states that arrested person have rights to be produced
before a Magistrate within 24 hours.
Article 5 (1) of FC, can be divided in to 2 limbs. First, “no person shall be
denied of his personal liberty.” This limb protects every individual’s personal liberty.
Person in this subsection refers to all persons, not just citizens. It may even include
artificial person such as ships and aircraft which law can be applicable towards it.
While, personal liberty as interpreted in the case of Aminah v Superintendent of
Prison, as long as there is no arrest or detention, there is no deprivation of life and
personal liberty. This defines the narrowness of Malaysian law which it only refers to
arrest and detention as a deprivation of liberty. Secondly, the phrase, ‘save in
accordance with law’ justified deprivation if law allows it to be. The word ‘law’ than
can be interpreted differently. First, ‘law’ could mean any statutes passed by
parliament regardless of its reasonability as long it comply with the law making
procedure. Secondly, ‘law’ does not mean any law pass by parliament but it refers to
a higher standard of due process and natural justice which conform with the principle
of constitutionalism.
Article 5 should be implied into statues and the principle must also be applied
to preventive detention laws under Article 149 and 150. As in Aminah’s case, Article
5 is meant to apply to arrests under any law in force in the country. Besides, in
Andrew s/o Tamboosamy v Superintendent of Pudu Prison, Suffian LP states

2. that, any form of detention does violate the Article 5 and power given by law to
detain must be interpreted strictly. However, in the case of Kam Teck Soon v
Timbalan Menteri Dalam Negeri, the court held Article 5 does not apply to laws
passed under Article 145 and 150.
In interpreting Article 9(1) of the Constitution of Singapore which is similar to
Article 5(1) of FC, Privy Council in Ong Ah Chuan v PP and Haw Tua Tau v PP
defines ‘law’ to a system of law which incorporates fundamental rules of natural
justice. It means if the law did not conform to the standard, court have to strike off
the law.
However, in some Malaysian court decision regarding Article 5; it refers
merely to enacted laws and not to general concepts of law such as natural justice.
As in Che Ani bin Itam v PP and PP v Lau Kee Hoo, the mandatory life sentence
under Sec. 4 Firearms (Increased Penalties) Act and the mandatory death sentence
under Sec. 57(1) of Internal Security Act (ISA) is not inconsistent to Article 5(1).
Even, Ajaib Singh in PP v Yee Kim Seng states that the court are obliged to
administer the law as it is found in statues book and whether it is morally right or
wrong is a matter of parliament to decide.
In comparison to the European Convention of Human Rights (ECHR), Article
1 of the 13th Protocol abolishes death penalty. While Article 2 of the ECHR gives
absolute right to life with only 3 exceptions which results from the use of force (1) in
defence of any person from unlawful violence, (2) in order to prevent the escape of a
person lawfully detained and (3) in action lawfully taken for the purpose of quelling a
riot. While, Article 5 only outline 6 exception where a person may be deprive of his
liberty.
Article 5(2) of FC includes remedy of habeas corpus into the constitution and
it applies even to laws passed under Article 149 and 150. In Abdul Ghani Haroon,
Hishamudin J states that, habeas corpus is as important as not just legal rights but
also as constitutional rights. Even it is not stated, the principal must be implied in the
constitution. However, Federal Court reversed the decision and held that the rights to
habeas corpus are not granted automatically. In Re Datuk James Wong Kim Min it
was stated that the provisions of the law allowing detention without trial must be
Nelfi Amiera Mizan
Multimedia University

3. strictly interpreted and safeguards as law purposely provides for the protection of
any citizen. However, question on who bears the burden of proof that the detention is
lawful as stated by Hishamudin J is the for the detainer to justify, but Suffian J in
Karam Singh the burden can be discharge by simply producing order of detention
as long it is issued in good faith and was original.
When parliament passes a subversion law, it will suspend Article 5
automatically. By that, it means the rights of life and liberty of person is totally gone
even there is still Common Law to protect the people’s right through habeas corpus.
This is because, it only can be implementing on the procedural part. Besides that,
parliament is more supreme than Common Law as the ruling party in the lower
house may use several methods to strike out the Common Law such as party whip
system. This shows that the rights under Article 5 are destroyed by Article 149 and
150 as any person who is suspected to cause enmity will be detain without trial.
In comparison, under Article 4 of ECHR states that, everyone who is deprived
of his liberty shall be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily. This is contrary to our Article 5(2) where it states
that only as soon as reasonable. Besides, our FC does not provide in any part of the
constitution rights to a fair trial as under Article 6 of ECHR states that, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law.
Article 5(3) of FC, can be divided into 2 limbs. First limb, it gives right to an
arrested person to be informed as soon as maybe of the grounds of his arrest. The
consequences of this rule is that 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. It means that police must already have a
reasonable suspicious that a sizable offence has been committed, is being
committed or about to be committed. In Chong Kim Loy v Timbalan Menteri Hal
Ehwal Dalam Negeri, it was held that oral communication of the grounds is
sufficient and does not need to be in strict legal terminology as long the arrestee
understand the order.
Nelfi Amiera Mizan
Multimedia University

4. Similarly, Article 5(2) of the ECHR where everyone who is arrested shall be
informed promptly, in a language which he understands, of the reasons for his arrest
and of any charge against him.
However, the phrase ‘as soon as maybe’ depends on the facts of the case. As
in Aminah’s case, the phrase is read as ‘as soon as reasonable’. However, a delay
of 57 days between arrest and informing for grounds of arrest is clearly contrary to
Article 5(3) and renders invalid arrest as in the case of Yin Hon Kit v Minister of
Home Affairs.
It also must be noted that the rights under Article 5(3) can be deprived under
the authority of emergency laws, as held in Kam Teck Soon’s case where right to
be informed of the ground of arrest is not available to provisions under Article 149
and 150. The inconsistency with Article 5(3) is excused by Article 150(6).
For second limb, Article 5(3) states that every arrestee shall be allowed to
consult and be defended by legal practitioner of his choice. However, in Ooi Ah
Phua v Officer in Charge of Criminal Investigation, it was held delay of 10 days of
consultation with lawyers in a police lock-up can be postponed pending police
investigations. It emphasise that a balance must be struck between the entitlement
of the arrestee and the duty of police to collect evidence.
In comparison, a pricy Council decision in Thornhill v AG of Trinidad and
Tobago held that delay of less than 3 days was held to already be unconstitutional.
Article 5(4) of FC provides rights of an arrested person to be produced before
the magistrates within 24 hours. This is to ensure the detainee has not been subject
to cruelty. However, this is only applicable toward the citizens while for non-citizens,
the period is extended to 14 days. However, there are exceptions where detainees
under restricted residence law are excluded from this benefit.
Some amendments has been made under Criminal Procedure Code
(Amendment) Act 2006 to strengthen Article 5(4) where to delete the word ‘court’ in
the Sec. 28(1) and (3) so the accused under remand maybe produced before
magistrate even during holiday or a weekends.
Nelfi Amiera Mizan
Multimedia University

5. In In the case of Re Detention of R Sivarasa it was clearly explained that the
detention by the police of a person beyond 24 hours after his arrest is a result of a
judicial decision.
Due to the insufficiencies of Article 5 in protecting a person’s life and liberty,
some reformation should be done. Firstly, the arbitrary Article 149 and 150 shall be
amended to prevent any detention without trial. The absolute power of Article 149
and 150 had totally destroyed Article 5. Besides that, the phrase ‘save in accordance
with law’ under Article 5(1) must be rephrasing. The unlimited restrictions in the
article shall be limited only to some circumstances. In order to achieve this, we must
first uphold the basic components of constitutionalism such as the Rule of Law
(ROL) and Separation of Power (SOP).
AV Dicey states that, no one can be punished or made to suffer in body or
goods except for a clear breach of law proved in an ordinary court. By upholding
Dicey 1st postulate, Article 149 and 150 obviously must be remove. The separation of
power between the judiciary and executive is the most important element in order to
uphold fundamental liberties. As we can see, Home Minister as part of the executive
has a wide discretionary power to detain any person under Article 149 and 150,
which supposed to be the power of the judiciary.
Besides, we also must include rights to a fair trial in order for the people to
have fair hearing before the courts.
Nelfi Amiera Mizan
Multimedia University