CHAPTER 2: ARTICLE 5

LLS 3103 CONSTITUTIONAL

LAW II
SEMESTER II 2013/2014
ARTICLE 5(1)
 Article 5 (1)

No person shall be deprived of his life

or personal liberty save in
accordance with law
 A. Interpretation of Article 5(1)

(i) Any person

(ii) personal liberty
(iii) life
(iv) save in accordance with law
 (i) Any person

• Citizen or non-citizen
• Case: LOH WAI KONG V
GOVERNMENT OF MALAYSIA & ORS
[1978] 2 MLJ 175
• Article 5 (1) is not only applicable
to citizens but also guarantees the
liberty of any person including non-
citizens whilst in this country
 (ii) Personal liberty

AV Dicey
A personal right not to be subjected to
imprisonment, arrest or physical coercion in any
manner that does not admit legal justification
• Freedom to behave as one pleases,
circumscribed by the laws and codes of conduct
of the society in which one lives.
Note: The courts seemed to take a strict approach
to the interpretation of the word “personal
liberty” in article 5(1)
Case: GOVERNMENT OF MALAYSIA
& ORS V LOH WAI KONG [1979] 2
MLJ 33
• Facts: an applicant was a holder of Malaysian
passport when he was a student in Australia.
After he returned to malaysia and worked, he
was charged with two offences of forgery for the
purpose of cheating under s468 of PC and his
passport was kept by the Magistrate’s Court in
Ipoh. He was granted a bail and wanted to go to
Australia for a short visit where the passport
was returned to him. Due to the expiry of the
passport’s term, he made another application
for passport where he was denied of.
 Issue

Does a citizen have a right to leave

the country, to travel overseas and a
right to a passport
 Federal Court

• Personal liberty in article 5 means liberty

relating to or concerning the person or
body of the individual
• That article does not confer on the citizen
a fundamental right to leave the country
• The Government may stop a person from
leaving the country if, for instance, there
are criminal charges pending against him
 Case: SUGUMAR BALAKRISHNAN V
PENGARAH IMIGRESEN NEGERI SABAH
[1998] 3 MLJ 298
• The applicant was cancelled of his
West Malaysia’s entry permit to
Sabah 6 months before the expiry of
the said permit.
• Issue: Whether his personal liberty &
his right to livelihood were infringed
by the cancellation the the entry
permit?
Federal Court
• The entry permit only allows R to
enter and reside in Sabah but ipso
facto the entry permit does not
confer any right to livelihood to R
• The constitutional rights under article
5(1) can be taken away in
accordance with law
Case: OOI KEAN THONG & ANOR V
PUBLIC PROSECUTOR [2006] 3 MLJ
389
A were accused of behaving in a
disorderly fashion (“hugging & kissing”)
which is an offence under s8(1) of the
Parks (Federal Territory) By-laws 1981.
Issue: Whether the A have been deprived
of their constitutional right of freedom
& whether the charge against them is
contrary to art 5(1) of FC.
 Federal Court

• The broad interpretation of art 5(1) of

the word “life” means “the right to
livelihood” which includes the
deprivation of one’s reputation…it
cannot be by any stretch of
imagination conclude that by
disallowing any person from behaving
in disorderly manner is a deprivation
of one’s life or livelihood or reputation.
Case: HARMENDERPALL SINGH A/L
JAGARA SINGH V PP [2005] 2 MLJ
542
Facts:A was charged fro causing death
by reckless and dangerous driving
under s41(5) of Road Transport Act
1987 where his driving license was
suspended until the court makes a
final decision on the charge.
A argued that the suspension of his
driving license infringed his right to
livelihood under article 5(1)
 Judgment

• Article 5(1) confers constitutional

protection of life and personal liberty
which does not extend to the
applicant’s right to livelihood.
 (iii) Life

• Francis Carolie:
Right to life means right to live with
dignity and including all that goes about
within it
– The courts seem to adopt a broader
approach to the interpretation of life
under article 5(1)
 Case: TAN TEK SENG v SURUHANJAYA
PERKHIDMATAN PENDIDIKAN & ANOR
[1995] 2 MLJ 476
Facts: The plaintiff, a senior assistant of a
primary school, was arrested and charged
with two counts of criminal breach of
trust by a public servant under s 409 of
the Penal Code and was sentenced to 6
months imprisonment. He appealed to
High Court where HC allowed him to enter
into a bond of good behavior for the sum
of RM5k without sureties for three years.
The Education Service Commission
dismissed him from the service since ‘the
conviction’ tarnished the reputation of
public service.
 Court of Appeal

• The expression of “life” in art 5(1) does

not refer to mere existence. It
incorporates all those facets that are an
integral part of life itself and those
matters which go to form the quality of
life
• For this purpose, it encompasses the right
to continue in public service subject to
removal for good cause by resort to a fair
procedure
 Other cases

• Case: KETUA PENGARAH JABATAN

ALAM SEKITAR & ANOR V KAJING
TUBEK & ORS AND OTHER
APPEALS [1997] 3 MLJ 23
• Case: KERAJAAN NEGERI JOHOR &
ANOR V ADONG BIN KUWAU &
ORS [1998] 2 MLJ 158
 Case: BATO BAGI & ORS V KERAJAAN
NEGERI SARAWAK AND ANOTHER
APPEAL [2011] 6 MLJ 297

Aps, who have native customary rights

('NCR') over lands along Batang Balui and
its tributaries, Belaga District Kapit
Division Sarawak sought for a declaration
that the extinguishment of their NCR, for
the Bakun hydroelectric project, was void
because it violated their fundamental
rights under arts 5, 8, 13 and 153 of the
Federal Constitution
 Federal Court
• That the meaning of the native customary
rights should be interpreted broadly to
include life.
• The superintendent in awarding
compensation to the native must consider
the rights to life which must include all
these facts such as the reason for his
attachment to the land such as burial
grounds, farms etc which affect his rights
to livelihood
 (iv) Save in accordance with law

• Issue of the word “law”: whether it is lex or

jus?
(a) Lex
– any law enacted or which has been passed
by a competent legislature in accordance
with the established procedure
– Do not contain fundamental rules of
natural justice
– E.g: ISA
(b) Jus
– any law enacted or which has been
passed by a competent legislature
in accordance with the established
procedure
– Law that included within it the
fundamental rules of natural justice
Cases for lex
Case: ANDREW V SUPERINTENDENT
OF PUDU PRISON [1976] 2 MLJ 156

“If the government exercises a power

conferred on it by Parliament and
keeps within the law, then the duty
of the court is quite clear. The court
should simply apply the law no
matter how harsh its effect may be
on the immigrant”
 Case: CONTROLLER-GENERAL OF
INLAND REVENUE V NP [1973] 1
MLJ 165
Facts: D refused to pay income tax and
argued that it deprived a person’s
right to property under article 13 (1)
Held: such a right can be claimed in a
certain restriction because there is a
clause ‘in accordance with law’ which
provides that if there is a law passed
by a competent authority, the law is
applicable no matter how harsh it is.
Case: GOVERNMENT OF MALAYSIA V
ARUMUGAM PILLAI [1974] 1 MLJ
127
Facts: P claimed for a due income and
additional taxes against D under Income
Tax 1967. D argued that the income tax
deprived his right to property under article
13(1).
Held: Income tax is deprivation of property
in accordance with the law since the
Income Tax Act 1967 was duly enacted.
Taxing cannot therefore be ultra vires the
Constitution.
Cases for jus
Case: ONG AH CHUAN V PP [1981]
1 MLJ 64
Facts: The respondent was charged with an
offence under section 39B(2) of the Dangerous
Drugs Act 1952 (“the Act”). She was stopped at
the airport carrying two bags containing drugs.
Section 15 of the Misuse of Drugs Act 1973
states that there is a statutory presumption
that a person is trafficking drugs if he is found
with possession of prescribed drugs with a
prescribed amount.
R claimed that the law is unjust as it is in conflict
with the presumption of innocent.
 Privy Council
Lord Diplock
Law refers to a system of law which
incorporates those fundamental rules of
natural justice that had formed part and
parcel of the common law of England
One of the fundamental rules of natural justice
is that a person should not be punished for
an offence unless it has been established to
the satisfaction of an independent and
unbiased tribunal he committed it.
Case: CHE ANI BIN ITAM V PP [1984]
1 MLJ 113

• A was convicted in the Sessions Court

of an offence under S4 of the Firearms
(Increased Penalties) Act, 1971 and
sentenced to imprisonment for life
with six strokes of whipping.
• Issue: Whether or not the sentence of
life imprisonment for the duration of
natural life is unconstitutional and
violates Article 5(1) of FC
 Federal Court

•It is now firmly established that “law”

in the context of such constitutional
provision as article 5, 8 and 13 of the
constitution refers to a system of law
which incorporates those fundamental
rules of natural justice
• the sentence prescribed is
constitutional and valid
Substantive law or procedural
law?
Case: ONG AH CHUAN V PP [1981]
1 MLJ 64
• Rebuttable statutory presumption of
drug trafficking not inconsistent with
constitutional right not to be deprived
of life save in accordance with law or
rights to equality before the law and
equal protection of the law
• the term 'law' encompasses both
substantive law and procedure
established under enacted law.
 Case: TAN TEK SENG v
SURUHANJAYA PERKHIDMATAN
PENDIDIKAN & ANOR [1995] 2 MLJ
 
• the expression 'law' which appears in arts 5(1)
and 8(1) of the Federal Constitution includes
procedural law, and in particular, any
procedure prescribed by written law. If a
particular procedure prescribed by written law
is found to be arbitrary or unfair or the
procedure adopted in a given case is held to be
unfair, then, generally speaking, it must be
struck down as offending art 5(1) read with art
8(1).
Case: RE TAN BOON LIAT @ ALLEN &
ANOR [1977] 2 MLJ 108
• The expression 'in accordance with law' in
art 5 of our Constitution is wide enough to
cover procedure as well.
• Here the point is not whether the question
of procedure is more important under one
Constitution than under the other.
• If the expression 'in accordance with law'
were to be construed as to exclude
procedure then it would make nonsense of
art 5.
 Issue: Constitutionality of death
penalty and life imprisonment

Case: PP V LAU KEE HOO [1984] 1 MLJ 110

Facts: the accused was charged under
section 57 of ISA. He was convicted and the
only punishment was death penalty. It was
challenged that the punishment was
unconstitutional.
Held: the right is subjected to saving clause;
save in accordance with law. Thus, even if it
deprives the life of a person, it is valid and
constitutional.
 Case: JURAIMI BIN HUSIN v
LEMBAGA PENGAMPUNAN, NEGERI
PAHANG & ORS [2001] 3 MLJ 458

Facts: The plaintiff filed an originating

summons praying, inter alia, for a
declaration that the rejection of his
petition for clemency dated 30 June
1999 by the first defendant was
unconstitutional, null and void and of
no effect.
 High Court

• Mercy is not the subject of legal

rights. It begins where legal rights
end.
• The death sentence imposed on the
plaintiff was constitutionally valid
and permissible by law. The legality
of a delayed execution cannot be
questioned.
• The death sentence pronounced by the
High Court and confirmed by the Court of
Appeal and the Federal Court was final
and conclusive and could not in any
event be reversed. Since the issues
raised by the plaintiff was non-justiciable
and were outside the jurisdiction of the
court, the action of the plaintiff was
frivolous, vexatious and clearly an abuse
of the process of the court
ARTICLE 5 (2)
 Article 5 (2)
• Where complaint is made to a High
Court or any judge thereof that a
person is being unlawfully detained
the court shall inquire into the
complaint, and unless satisfied that
the detention is lawful, shall order
him to be produced before the court
and release him
 A. Principle
• Principle: every detention is unlawful
and the detainer has to justify it
• Preventive detention is an exception
– The law is valid notwithstanding its
inconsistency with art 5(2)
– The constitutional right to be present
at the habeas corpus application is a
limited one, governed by the relevant
law.
 Case: KETUA POLIC NEGERA V
ABDUL GHANI HAROON [2001] 4
MLJ 11

Federal Court: the natural & ordinary

meaning of the words in art 5(2)
does not support a constitutional
right of the detainee to be produced
at his habeas corpus application for
detention under the ISA.
 B. Writ of habeas corpus

• Def: a prerogative writ issued by the

court
– Used to command a person who is
detaining another in custody to
produce that person before the court
– It is used to secure the release of a
person detained unlawfully or
without legal justification
C. Power of the court to issue writ
of habeas corpus
Courts of Judicature Act 1964
• Item 1 of Schedule [sec 25(2)]
• Additional powers of High Court
Prerogative writs
• 1 Power to issue to any person or authority
directions, orders or writs, including writs of
the nature of habeas corpus….for the
enforcement of the rights conferred by Part II
of the Constitution, or any of them, or for
any purpose.
 Criminal Procedure Code

Section 365. The High Court may

whenever it thinks fit direct—
(1) that any person who:
(b) is alleged to be illegally or
improperly detained in public or
private custody within the limits of
Malaysia, be set at liberty;
 D. Where habeas corpus is
inapplicable
(i) Undergoing a sentence of imprisonment
made by a court of competent jurisdiction
(ii) Lawful arrest on a reasonable suspicion of
having committed a crime- 24 hours
(iii)Lawful remand under an order of a
magistrate- more than 24 hours
(iv) Challenge the legality or validity of a trial
(v) Admission or non-admission of evidence
by the trial court
E. Where writ of habeas corpus is
applicable
(i) Non-compliance with the procedure
of making the detention order
e.g: failure to allow the detainee
to enjoy his right to counsel
Case: SUKMA DARMAWAN V KETUA
PENGARAH PENJARA MALAYSIA &
ANOR [1999] 1 CLJ 481
Facts: The applicant had pleaded guilty to a
charge under section 377D of the PC. It was in
respect of an alleged act of sodomy. The
applicant was convicted thereon and sentenced
to 6 months' imprisonment.
Held: The expression of ‘unlawfully detained’ and
‘detention’ employed by article 5(2) do not
apply to the case of a person held in a prison in
execution of a sentence passed by a court of
competent jurisdiction.
 Case: KARPAL SINGH S/O RAM
SINGH C MENTERI HAL EHWAL
DALAM NEGERI MALAYSIA & ANOR
[1988] 1 MLJ 468
There are 3 exceptions to the non-
justiciability of the Minister’s mental
satisfaction in cases of this kind. They are
(a)Mala fides
(b)The stated ground of detention not being
within the scope of the enabling legislation
i.e. the Act
(c)The failure to comply with a condition
precedent
• The onus of proving mala fides lies on the
applicant that the detaining authority had
mala fide when detaining the former.
• It is extremely difficult to discharge as what
is required is proof of improper or bad motive
in order to invalidate the detention order for
mala fides and not mere suspicion
• Mala fides does not mean at all a malicious
intention
• It normally means that a power is exercised
for a collateral or ulterior purpose i.e. for a
purpose other than the purpose for which it
is professed to have been exercised.
 Case: MOHAMAD EZAM BIN MOH
NOOR V KETUA POLIS NEGERA AND
OTHER APPEALS [2002] 4 MLJ 449
• Facts: A appealed against the decision
of the High Court judge in refusing to
grant the writ of habeas corpus for
their release. A , who were reformasi'
activists, were arrested and detained
under s 73of the ISA. The reason for
the detention as stated in R’s affidavit
was that the appellants were planning
a street demonstration in Kuala
Lumpur on 14 April 2001 involving
some 50,000 people.
• An order of detention was mala fide if it was
made for a "collateral" or "ulterior"
purpose, that is, a purpose other than what
the legislature had in view in passing the
law of preventive detention
• The onus was on the A to prove mala fide
on the part of the detaining authority.
• Where an order of detention was
challenged on the ground of mala fide,
what had to be made out were the want of
bona fide as well as the non-application of
mind on the part of the detaining authority
Issue: Right to be
present at habeas
corpus hearing
 Case: KETUA POLIS NEGARA V
ABDUL GHANI HAROON & ANOTHER
APPLICATION [2001] 3 CLJ 853
Facts: Applicants were officers of a
political party, Parti Keadilan
Nasional. They were arrested under
s73(1) of the ISA.
Issue: Whether Applicants had
constitutional right to be present at
the hearing of the habeas corpus
application.
 Federal Court

• High Court or any judge shall order a

detainee to be produced in court and
release him after being satisfied that
the detention is unlawful.
• In other words, art. 5(2) of the
Federal Constitution does not
envisage the production of a detainee
at the hearing of his habeas corpus
application
 Case: NOOR ASHID BIN SAKIB v
KETUA POLIS NEGARA [2002] 5 MLJ
22
Facts: A was a religious teacher at the
Madrasah Al-Masriyah Simpang Rengam and
a member of Parti Islam Malaysia who had
been arrested and detained under S73 of the
ISA pending enquiries.
An order of detention under s 8 of the ISA had
not been made against A. A was detained for
more than 30 days but less than 60 days.
The police had refused A visitation by relatives
and counsel pending investigations.
A applied for writ of habeas corpus.
 Judgment

• In accordance with art 5(1) and (3) of the FC,

whenever a person deprived of his liberty
challenges his detention, it is incumbent
upon the authority who detains him to show
that the detention is in the exercise of a valid
legal power and that the detentive power
had been exercised strictly in accordance
with the provisions of the relevant law
• The issue for judicial determination was
whether the detaining authority has
complied with all the procedural
requirements for each period of detention
leading up to the present moment
• To show breach of art 5(3) of the
Constitution, an applicant has to show that
the police had deliberately and with bad
faith obstructed the applicant from
exercising his right under the article and
this had not been shown.
• What appeared rather was that the police
had refused visitation by relatives and
counsel pending ongoing but yet
unfinished investigations. That was not
any denial of the right to counsel
Case: NIK ADLI BIN NIK ABDUL AZIZ
v KETUA POLIS NEGARA [2001] 4
MLJ 598
Facts: A was detained under ISA. He filed an
application for a writ of habeas corpus
praying for his release.
A day before the hearing of the application, A
had been served with a detention order
pursuant to s 8 of the Act.
A alleged that:
(i) He was not informed of the grounds of his
arrest and there was lack of transparency
when the authorities sought refuge behind s
16 of the Act and art 151(3) of FC.
 High Court 

• Any non-disclosure of facts covered

by s 16 of the Act or art 151(3) of the
Constitution does not affect the
quality or the requirement of the
authorities to inform the grounds of
the arrest to the detainee.
 F. Other issues

(i) The complaint/application need not

be brought by the person in custody
himself but may be brought by
someone else of his behalf
Case: THERESA LIM CIN V IGP
[1988] 1 MLJ 293
 (ii) Meaning of detention

• Physical detention?

»Person on bail?

»Restriction in movement?
 (iii) Burden of proof

• Who has to prove the detention is

unlawful??

•How does the burden shift?

•What does the burden require

the parties to prove in such an
action?
Case: SEJAHRATUL DURSINA@CHOMEL
BTE ABDULLAH V KERAJAAN MALAYSIA
[2006] 1 MLJ 405
Federal Court:
“…the writ of habeas corpus is only available
to a person who is being physically
detained unlawfully. He must be in actual
custody.
A person who is subjected to a restriction
order is not being physically detained,
imprisoned or in custody and as such a writ
of habeas corpus is not available to him”
 Case: YEAP HOCK SENG @ AH
SENG V MINISTER FOR HOME
AFFAIRS, MALAYSIA [1975] 2 MLJ
279
High Court
The grant of habeas corpus is as of right
and not in the discretion of the court.
The principle that a court will not issue a
prerogative writ when an adequate
alternative remedy was available would
not be applied where a party came to
the court with an allegation that his
fundamental rights had been abridged.
• The burden of proving lawful
justification for the detention lies on R.
• This they do by relying on the detention
order which must be made in the
exercise of a valid legal power.
• Once this is shown, it is for the detenu
to show that the power was exercised
mala fide or improperly for a collateral
or ulterior purpose in fraudem legis
Article 5(3)
 Article 5 (3)

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
Rights under article 5(3)

i) Right to be informed of the ground of

arrest
ii) Right to consult a counsel
iii)Right to be defended by a legal
practitioner of his choice
Exception: article 5(5)
– The right does not apply to enemy
alien
(i) Right to be informed of ground
of arrest
• The right is extremely important
especially when a person’s liberty is
at stake
• The issues:
– How to inform the ground of arrest?
– When to inform the ground of
arrest –interpretation of ‘as soon as
may be’?
 Case: ABD MALEK BIN HUSSIN V
BORHAN BIN HJ DAUD & ORS [2008]
1 MLJ 368 (inform the ground of
arrest)

Facts: P was arrested without a warrant

by a group of Special Branch officers.
The arrest occurred in front of his
house just after he had been dropped
off by a friend. P was only vaguely
told that he was being arrested
under the Internal Security Act 1960.
 High Court

• The detainee must be told briefly and

in clear and simple language that he
is being arrested because there is
reason to believe that his activities-
the gist of which should be told to
the detainee-have been such as to
justify his detention order.
• The essential particulars of his
activities must also be told.
• It is not sufficient to merely parrot the
provisions without some indication to
the detainee of the substance of what
he has done or of what he is about to
do or of what he is likely to do
• No detailed particulars need to be told
to the detainee but at least he should
know the essence of why he is being
arrested.
Case: AMINAH V SUPERINTENDENT
OF PRISON, PENGKALAN CHEPA,
KELANTAN [1968] 1 MLJ 92
(as soon as may be)

“the words ‘as soon as may be’ mean

‘as nearly as is reasonable in the
circumstances of the particular case”
 Case: NIK ADLI BIN NIK ABDUL
AZIZ V KETUA POLIS NEGARA
[2001] 4 MLJ 598
• The right to be informed ‘as soon as
may be’ means ‘that the grounds
must have already been in existence
when he was arrested’.
• What may be delayed, ‘perhaps due
to some extreme exigencies of the
moment…is limited only to the
informing’
• Nonetheless, it does not mean the
arresting officer had a carte blanche
prerogative’ to delay in fulfilling his
duty to inform the detainee of the
grounds, bearing in mind that an
unexplained delay could render the
detention order invalid
 Case: KUMARESHAN
SUBRAMANIAM V DATO CHOR
CHEE HEUNG [2003] 4 MLJ 384
• The applicant applied for the writ of
habeas corpus on the ground that he
was informed of the ground of his
arrest after the service of the
detention order
• Held: granted.
Case: RE PE LONG@ JIMMY [1976] 2
MLJ 133 (how to inform)
Facts: A had been detained under the
Emergency (Public Order and Prevention
of Crime) Ordinance, 1969. It was alleged
that they were engaged in drug
trafficking. The applicants applied for
writs of habeas corpus on the grounds
that they were not informed of the
grounds of their arrest and therefore there
had been contravention of the provisions
of Article 5(3) of the Federal Constitution
 Judgment
• The ground of arrest may be informed orally
• Art 5(3) only states that the person arrested
shall be informed as soon as may be of the
grounds of his arrest and s3(1) of the
Emergency (P.O.P.C.) Ordinance, 1969, only
states that any police officer may without
warrant arrest and detain pending enquiries
any person in respect of whom he has reason
to believe that there are grounds which
would justify his detention under section 4(1).
 Case: ABDUL RAHMAN V TAN JO
KOH [1968] 1 MLJ 205

Federal Court
Held : A person arrested on suspicion of
committing an offence, is entitled to
know forthwith the reason for his
arrest and that if the reason was
withheld, the arrest and detention
would amount to false imprisonment,
until the time he was told the reason.
.
• It would follow therefore from this
proposition that a person arrested
without being told the reason is
entitled to resist the arrest and any
force used to overcome the
resistance would amount to assault
case: KAM TECK SOON v TIMBALAN
MENTERI DALAM NEGERI MALAYSIA
& ORS AND OTHER APPEALS [2003]
1 MLJ 321
Facts: A was arrested by a sergeant where the
latter had told the appellant that he was
arrested under s 3(1) of the Emergency (POPC)
Ordinance 1969 ('the Ordinance') as there was
reason to believe that there were grounds that
would justify the appellant's detention.
However, he did not disclose to the appellant
the information received that caused him to
have the reason to believe that there were
grounds justifying the detention.
 Federal Court

• per Abdul Malek Ahmad FCJ dissenting

– An arrest without warrant could be
justified only if it was an arrest on a
charge which was made known to the
person arrested unless the
circumstances were such that the
person arrested must know the
substance of the alleged offence, for
example, where the alleged wrongdoer
was caught red-handed.
• per Ahmad Fairuz CJ
– s 3(1) of the Ordinance only requires the
arresting officer to have 'reason to believe
that there are grounds...'. It does not
require the grounds to be informed to the
arrested person. Even if it is so required
because of art 5(3), what the arresting
officer had informed the appellant was
sufficient compliance with art 5(3)
– Article 150(2) and (6) of the Constitution
clearly show that the provisions of the
Ordinance must prevail over the
Constitution.
Case: CHONG KIM LOY v TIMBALAN
MENTERI DALAM NEGERI MALAYSIA
& ANOR [1989] 3 MLJ 121
Facts: A was arrested under s 6(1) of the
Dangerous Drugs (Special Preventive
Measures) Act 1985 ('the Act') and was
thereafter detained. The police had reason to
believe and did informed A that he was
involved in activities involving drugs. A
contended that informing that he had involved
in activities involving drugs was not enough to
justify the arrest under the provision without
the essential words that ‘trafficking in drugs’.
 Judgment

• For the purposes of the first limb of art 5(3) of

the Constitution, all that an arrested person is
entitled to demand for is to be informed, at the
earliest possible moment, not in detail and not
necessarily in strict legal terminology, but only
in general terms, by virtue of what power he is
being arrested and of the grounds of his arrest.
But enough must be made known to him to
afford him the opportunity of giving an
explanation of any misunderstanding or of
calling attention to other persons for whom he
may have been mistaken with the result that
further inquiries may save him from the
consequences of a false accusation.
• A should have been informed not
merely that he was being arrested
because he had been involved in
activities involving drugs and that it
was necessary that he be detained in
the public interest. The arresting
officer should have gone further and
added that the activities involving
drugs were drug trafficking activities.
 Case: ASSA SINGH v MENTRI BESAR,
JOHORE [1969] 2 MLJ 30

Facts: A had been arrested and

detained by the order of the Mentri
Besar of Johore under the RRE in
exercise of the powers purported to
be delegated to him by the Minister
of Interior and Justice. A applied for
the writ of habeas corpus on the
ground that he was not informed the
grounds of his arrest.
 Judgment

• RRE is a law relating to public security and

therefore its provisions are not inconsistent
with article 9 of the Constitution
• RRE must be read together with the
Constitution and necessary modifications
are required to bring it into accord with the
Constitution.
• Article 5(2) and (3) must therefore be read
into the provisions of the Restricted
Residence Enactment
 (ii) The right to consult counsel

Section 28A CPC

The police, as soon as may be, allow
an arrested person to consult his
legal counsel.
  case: RAMLI BIN SALLEH v
INSPECTOR YAHYA BIN HASHIM
[1973] 1 MLJ 54

Facts: A had been arrested on a report

of theft and was remanded for 11
days. The lawyer appointed to act on
behalf of A applied for an opportunity
to see his client and was denied. The
police stated that the lawyer could
meet A after the completion of the
remand period.
 Federal Court

• the right granted under art 5(3) i.e. to consult

a legal counsel must be given to the arrested
person within a reasonable time after his arrest
• It begins right from the day of his arrest even
though police investigation has not yet been
completed.
• This fundamental right should be subject to
certain legitimate restrictions which
necessarily arise in the course of police
investigation- time & convenient of the police
 Case: OOI AH PHUA v OFFICER-IN-
CHARGE CRIMINAL INVESTIGATION,
KEDAH/PERLIS [1975] 2 MLJ 198

Facts: A, was arrested on the account of

robbery; he was arrested about 50 yards
from the scene of the crime. The
Magistrate granted a remand order for 7
days where during this period, the police
had denied a lawyer’s access to A.
A’s father applied for the writ of habeas
corpus.
 Federal Court

• The right of an arrested person to consult his

lawyer begins from the moment of arrest, that
right cannot be exercised immediately after
arrest.
• 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 wrongdoers
by apprehending them and collecting
whatever evidence exists against them.
• The interest of justice is as important
as the interest of arrested persons
and it is well-known that criminal
dements are deterred most of all by
the certainty of detection, arrest and
punishment.
Case: HASHIM BIN SAUD v YAHAYA
BIN HASHIM & ANOR [1977] 2 MLJ
116
Federal Court: Follow the decision of OOI
AH PHUA .
• The balance must be struck out
between the right of the arrested
person and the interest of the state.
• The right to consult a legal counsel as
guaranteed under art5(3) does not
mean that it has to be exercised
immediately after the arrest.
Case: NASHARUDDIN BIN NASIR v
KERAJAAN MALAYSIA & ORS [2002]
6 MLJ 65
Facts: The detainee was arrested with
access to his solicitors being denied by
the police. The denial of access was
justified by the police by reasons of
that the investigation of the detainee
was at the early stages and to avoid
any derailment to a smooth
investigation in matters of internal
security.
 High Court

Issue: whether the police, after having

arrested the detainee could legally prevent
the detainee's solicitors from seeing him.

Held: It is the right of the arrested person to

have a right to consult a legal counsel and
any denial of his right, without a
reasonable justifications would amount to a
mala fide act on part of the police.
(iii) The right to be represented by
a legal counsel
Issues: would there be a denial of
constitutional right if :-
– The counsel fails to turn up at the
police station/the court to represent
the client?
– The counsel is unwilling to act of
behalf of his client?
– The counsel is unable to act on behalf
of his client?
 case: D' CRUZ v ATTORNEY-
GENERAL, MALAYSIA & ANOR [1971]
2 MLJ 130 
Facts: A was charged with an offence under section 4(c)
of the Prevention of Corruption Act, 1961. He applied
for the ad hoc admission of Dato David Marshall, a
resident & prominent lawyer in Singapore to lead his
appointed lawyer in defending him in that case.
Section 8A of the Advocates and Solicitors Ordinance
1947 requires a non-citizen of Malaysia to be granted
a special qualifications before admitting and legally
consult a client in for the offence committed under
Malaysian law.
Mr David Marshall was not given the special
qualification.
 Judgment
• The right given under article 5 cannot
be read as extending to any legal
practitioner anywhere in the world
regardless whether or not he is
qualified to practise here
• The right given to the arrested person
in the article must be limited to the
choice of legal practitioners who are
qualified to practise under our law.
law
case: MOHAMED BIN ABDULLAH
v PUBLIC PROSECUTOR [1980] 2
MLJ 201
Facts: A had been charged with CBT under the Penal
Code. At the date of hearing of the case, counsel for
the accused was not present as it appeared that he
had urgent business in Johore Bahru relating to a
land matter.
The learned President of the Sessions Court proceeded
with the hearing in the absence of counsel. After A
had been called for his defence, a second counsel
appeared and after consulting his client, informed
the court that he had advised him to remain silent.
The appellant was convicted and sentenced to 18
months' imprisonment. The appellant appealed.
• The main ground of appeal was that
the learned President erred in
proceeding to hear and determine
the case without the presence of
defence counsel and in making the
accused conduct his own defence.
 Judgment

• In the interpretation of Article 5(3) of the

Constitution in so far as it concerns an
accused person's right to counsel.
• The right is only for a choice of counsel
who is willing and able to act.
• It does not confer a right to counsel in
every case, that is to say, it does not
mean that an accused person cannot be
tried unless he is represented by counsel.
ARTICLE 5(4)
 Article 5 (4)

• General rule:
– when a person is arrested, he shall
without unreasonable delay
produced before Magistrate to get
remand order
– Unreasonable delay- excludes the
time of journey
 Exception to article 5 (4)

• Exception (the provisos)

(a)Not applicable to arrest/ detention
under existing law relating to
restricted residence
(b)For arrest of non-citizen under
immigration law, the word
‘unreasonable delay’ is to be
substituted to ‘within 14 days’
(c)For arrest for offence under the
jurisdiction of syariah court,
Magistrate means the judge of
Syariah Court
(d)The right does not apply to an
enemy alien [article 5(5)]
Case: AMINAH V SUPERINTENDENT
OF PUDU PRISON, PENGKALAN
CHEPA, KELANTAN [1968] 1 MLJ 92

Facts: D was arrested under RRE. The

wife applied for a writ of habeas
corpus on the ground, among others,
there was a delay before D was
brought before the commissioner of
oath and subsequently delaying her
right to see her husband.
 Judgment

• Art 5(3) should be read together with

art 162(6) where the court in applying
the law before Merdeka Day, the court ‘…
may apply it with such modifications as
may be necessary to bring it into accord
with the provisions of this Constitution."
• Accordingly, there should be read into
the RRE the right of an arrested person
to be informed within a reasonable time
of the grounds of his arrest.
Case: CHIA KHIN SZE V THE MENTRI
BESAR OF SELANGOR [1958] MLJ
105

“…article 5(4) was intended to apply

to arrests under the Criminal
Procedure Code and not to arrests
under the Restricted Residence
Enactment and that article 5(3)
does not apply to cases under the
Enactment…”
Position changed after amendment
to insert para 2 to article 5(4)
Case: Loh Kooi Choon v Government of
Malaysia [1977] 2 MLJ 187
Facts: A had been arrested and detained under the
RRE. A had not been produced before a
Magistrate within 24 hours of his arrest.
A appealed but before the appeal was heard, the
Federal Constitution was amended by Act
A354/76 which provided in effect that Article 5(4)
of the Constitution shall not apply to the arrest
or detention of any person under the existing law
relating to restricted residence and that this
amendment shall have effect from Merdeka Day.
It was argued that the amendment was
unconstitutional.
 Judgment

• Parliament can alter the entrenched provisions

of clause (4) of Article 5, to wit, removing
the provision relating to production before the
magistrate of any arrested person under the
Restricted Residence Enactment as long
as the process of constitutional amendment as
laid down in clause (3) of Article 159 is
complied with. When that is done it becomes
an integral part of the Constitution, it is the
supreme law, and accordingly it cannot be said
to be at variance with itself.
 Exceptions- Special Laws

• Article 149 and article 150

• Dangerous Drugs Act 1985
• Internal Security Act 1960 -
repealed
• Emergency Laws (Public Order
and Prevention of Crime)
Ordinance 1969 – void for lifting
proclamation of emergency 1969
Emergency Laws (Public Order and
Prevention of Crime) Ordinance
1969
Section 3 (3)
A person may be detained in police
custody for a period not exceeding
60 days without order of detention
 PROVISO

(a)>24 hours – Inspector or above

(b)>48 hours- Assistant Superintendent
or above
(c) > 30 days – Deputy Superintendent
Inspector-General of Police or to a
police officer designated by the
Inspector-General in that behalf who
shall forthwith report the same to the
Minister.
 Internal Security Act 1960

Section 73(3)
A person may be detained for not
more than 60 days without order of
detention

• Similar provisos with the emergency

laws
 SOSMA
• A person may be detained for 28
days- for the purpose of investigation
• After the end of 28 days – the
arrested person must either be
released or if he is produced before
the Magistrate, the remand order will
be granted (maximum 14 days)
 Dangerous Drugs Act 1985

Section 3 (2)
A person may be detained for not more
than 60 days without order of
detention

• Similar provisos with the emergency

laws and ISA
Case: CHONG KIM LOY V TIMBALAN
MENTERI DALAM NEGERI MALAYSIA
& ANOR [1989] 3 MLJ 121

Facts: A arrested under DDA where the

the Deputy Minister made 2 years
detention order against A . A contended
that the maximum period of detention
under the Act is 60 days where the
Minister must give approval for
detention of more than 14 days, which
the Minister did not give. A contended
that the detention was unlawful.
 Judgment
• The Act was passed under art 149 of the
Constitution. Legislation under art 149 against
acts and crimes prejudicial to public order is not
ipso facto inconsistent with the right conferred by
art 5(4) of the Constitution upon an arrested
person to be produced, without unreasonable
delay and, in any case, within 24 hours, before a
magistrate and he shall not be further detained
in custody without the magistrate's authority but
any such restriction must be clear in the
legislation.
• The powers of preventive detention spelt out in
Part II of the Act, in particular, s 3(2) appearing
therein, do make such restrictions manifestly
clear and it is therefore valid notwithstanding
that it is inconsistent with art 5(4).
 ~ANY
QUESTION??
~