Article 5

What is
FUNDAMENTAL
LIBERTIES?
  The terms:
- Fundamental Rights
- Human Rights
- Civil Liberties/Rights
- Fundamental Freedom
- Basic Rights
 The rights- guaranteed by the Constitution
 Cannot be altered in the ordinary way but
requires a 2/3 majority of the total
number of members of the legislature

 The scope of human rights in Malaysia mainly

determined by:

- The actual wording of the provision (literal)

- How the courts interpret this provision (literal/liberal)
 No person may be deprived of his life or
personal liberty
 save in accordance with law.


Whether law should contain the requirement
of natural justice?

◦ 2 related legal maxims of natural justice:

i. Audi Alteram Partem- hear the other party
ii. Nemo Judex in Causa Sua- no man shall be a
jugde in his own cause
Natural Justice- the principle of
fairness recognised by the court. It is
mainly expected in procedures which
have an impact on individual rights.
Che Ani bin Itam v PP [1984] 1 MLJ 113
FC: The term law refers to a system of law

which incorporates those fundamental rules

of natural justice that had formed part of the
common law of England and was in operation
in S’pore at the commencement of the
Constitution.
 Narrow sense: the state of being alive
 Wider sense: it includes other aspects of life,
e.g. environment, a person’s livelihood,
health condition

 The courts in Malaysia had been willing to

include wider interpretation
of life as advocated by Indian cases
 In India, it has been held that ‘life’ includes
such necessities of life as adequate
nutrition, clothing, shelter and facilities for
reading and writing. Also includes
protection against torture, mutilation and
amputation. Even includes minimum wages
for workers and the right to livelihood
(Maneka Gandhi v Union of India AIR 1978
SC 597)
 This decision had been adopted in
Malaysian case
 Tan Tek Seng v Suruhanjaya Perkhidmatan
Pendidikan [1996] 1 MLJ 261
 If you want to deprive a person of his job,
you must do it properly

Gopal Sri Ram JCA: ‘Life’ in A5(1)
includes the right to seek and to continue in
public or private service employment
subject to removal for good cause by resort
to fair procedure. There is no denial of
the right to life if the plaintiff is
dismissed in accordance with the
provisions of law.
 In criminal law, e.g. in PP v Lau Kee Hoe
[1983] 1 MLJ 166, it has been argued that the
death penalty is contrary to the right
to life. It constitutes cruel and inhumane
punishment. Nevertheless, the court was
reluctant to invalidate written law.
 Christin Nirmal v Public Prosecutor [2018] 6
MLJ 21
 Issues: whether the mandatory death penalty was inconsistent with
arts 5(1) and 8 of the Federal Constitution and void and whether the
said penalty was inconsistent with the Federal Constitution ‘for being
arbitrary and disproportionate and failing to take into account
individual mitigating circumstances’.
 Court of Appeal: The function of the court was to interpret the law
and not to declare the mandatory death penalty under the impugned
provisions of the Dangerous Drugs Act 1952 as unconstitutional. It
was the Legislature, as the policy-maker, which had to amend the
DDA and abolish the mandatory death sentence if it thought that it
was cruel and harsh or draconian and not in keeping with
international trends or if it was inconsistent with the Federal
Constitution ‘for being arbitrary and disproportionate and for failing
to take into account individual mitigating circumstances’ 
 Victoria Jayaseele Martin was an advocate and solicitor of the High
Court of Malaya and a holder of a Diploma in Syariah Law and
Practice conferred by the International Islamic University Malaysia.
The appellant, the Majlis Agama Islam Wilayah Persekutuan, which
was at all material times a body incorporated under the
Administration of Islamic Law (Federal Territories) Act 1993, was
charged under s 59 of the Act with the power to admit syarie lawyers
to represent parties in any proceedings before the Syariah Courts, in
the Federal Territories. The respondent, who was of the Christian
faith, applied to the Majlis for admission as a syarie lawyer in
Wilayah Persekutuan. The respondent was informed that her
application was incapable of being processed on the ground that she
was not a Muslim.
 According to the Majlis under r 10 of the Peguam Syarie Rules
1993 it was a requirement for an applicant applying for
admission as a syarie lawyer to be a Muslim. The respondent
applied to the High Court for a judicial review and sought a
few orders, namely a declaratory order, an order of certiorari
and an order of mandamus. By way of her application the
respondent sought, inter alia, a declaration that r 10 of the
Rules was ultra vires the Act, and was also in contravention of
arts 8(1), 8(2), 5 and 10(1)(c) of the Federal Constitution, and
as a consequence void.
 The Federal Court allowed the appeal and held among
others: the issue on the deprivation of the respondent's
livelihood was misplaced as based on the facts of this
case as the respondent was not deprived of her law
practice in the civil court. The respondent's reliance on art
10(1)(c) of the Constitution was also without any merit.
 It was clear that art 10(1)(c) referred specifically to the
'right to form associations', and not to the right to be a
member of any profession or association. In the
circumstances, that part of r 10 of the Rules mandating
that only Muslims can be admitted as peguam syarie, was
not in contravention of arts 5, 8(1), or 10(1)(c) of the
Constitution
 It is related to the freedom of movement
 Narrow definition- a person cannot be
detained save in accordance with law.
 But it has been argued in the case of
Government of Malaysia v Loh Wai Kong
[1979] 2 MLJ 33, that the right of personal
liberty includes the right of person to his
passport. However the court adopted
narrow meaning of PL. It does not include
such extra right. It is limited to physical
arrest.
 Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301
 Gopal Sri Ram FCJ: The views expressed in Loh Wai
Kong are worthless as precedent.
 When art 5(1) is read prismatically and in the light
of art 8(1), the concepts of 'life' and 'personal
liberty' housed in the former are found to contain
in them other rights.
 Thus, 'life' means more than mere animal existence
and includes such rights as livelihood and the
quality of life. And 'personal liberty' includes other
rights such as the right to travel abroad.
 Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia & Anor [2018] 6
MLJ 670
 Court of Appeal: Any issuance of a Malaysian passport only carries
with it a privilege and not a right, to travel overseas. It is a privilege
given by the Government subject to the respondents’ discretion
whether or not under certain appropriate circumstances, to allow or
bar a person from leaving the country, for instance, if criminal
investigation is pending against him. This privilege, is not an integral
part of the right embodied in art 5(1). In the circumstances, given the
fact that the appellant was being investigated under s 124B of the
Penal Code, this would constitute a valid and legitimate reason to
deny the appellant such privilege. It is merely a decision in order to
facilitate the investigation by the police. Even if such privilege is a
guaranteed right under the Constitution, no rights as enshrined in the
constitution are absolute for such rights are accorded subject to
some permissible restrictions or restraints decreed by it.
 By interpreting Article 5 as a whole, the
Federal Court in Loh Wai Kong, Sugumar and
Victoria Jayaseele Martin, held that the phrase
'personal liberty' meant liberty relating to or
concerning the persons or body of the
individual.
 The scope of personal liberty is broadened in a number of
cases;

Lim Hai Sun [1992] 3 CLJ 1602- order to reside at a drug

rehabilitation centre is a denial of liberty

Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah

[1998] 3 MLJ 289- Article 5 (1) includes a right of a person to
seek judicial review

Re JG [2006] 1 MLJ 90- Personal Liberty includes a person’s

right to change reference to her gender in her MyKad after
successful reassignment surgery from male to female

Muhamad Juzaili bin Mohd Khamis & Others v State

Government of Negeri Sembilan & Others [2014] MLJU 1063-
FC: The Respondent argued that the legislation on Islamic
Law passed by the state legislature must comply with the
provisions on fundamental liberties in Art.5(1); Art. 8(1); Art.
8(2); Art. 9(2); and Art. 10(1)(a).
 Tan Pooi Yee v Ketua Pengarah Jabatan
Pendaftaran Negara [2016] 12 MLJ 370
 High Court: A declaration to recognise the
plaintiff’s reassigned gender would contribute to
certainty and avoid confusion and quite possibly
conflict as well. The plaintiff had a constitutional
right to life under art 5(1) of the Federal
Constitution and the concept of ‘life’ thereunder
necessarily encompassed the plaintiff’s right to live
with dignity as a male and be legally accorded
judicial recognition as a male
 In Pakistan, the right to Personal
Liberty/Freedom of movement includes the
person’s right to passport

 But in Sugumar Balakrishnan [2002] 3 MLJ

72- the meaning of personal liberty to be
restricted to the provisions in Part II of the
FC which included rights under
A7,8,10,11,12 and 13. Personal liberty
should not be generously interpreted to
include all those facets that are an integral
part of life itself and those matters which go
to form the quality of life
 Selvi a/p Narayan & Anor (joint administrator for
the estate and dependant of Chandran a/l Perumal,
deceased) v Koperal Zainal bin Mohd Ali & Ors
[2017] 9 MLJ 300
 The case arose out of the death of one Chandran a/l Perumal who
was detained by the police on suspicion of being involved in the
kidnapping of a newborn baby. The deceased was found dead in his
cell on 10 September 2012.
 A post-mortem showed that the cause of death was hypertensive
heart disease. The plaintiffs in this case were the estate and
dependents of the deceased. The plaintiffs contended that the
deceased died as a result of the negligence of the police and claimed
damages.
 The first plaintiff contended that she had informed the police that
her husband, the deceased, had health issues and she wanted to give
him medicine but the police officer said that they have medicines.
 The complaint in this case is that the
deceased's rights under art 5(1) of the Federal
Constitution were violated.
 The point that was made by the plaintiffs is that

by detaining the deceased, the police had

deprived him of his liberty and taken full
control over him. As such, the law imposes on
the police, as the detaining authority, an
extraordinary duty of care to ensure that the
detainee is not harmed and does not harm
himself.
 Right to a fair trial under Article 5
 Radin Irwan Iskandar bin Isagani lwn

Pendakwa Raya [2017] 5 MLJ 736: Court of

Appeal held that the constitutional rights of
the appellant under art 5(1) of the Federal
Constitution to obtain a fair trial was
tarnished.
◦ The right to habeas corpus – Clause 2

◦ The rights of arrested person: Clause 3

 To be informed the grounds of their arrest
 Legal representation
 To be produced before a magistrate within
of arrest. Clause 4
 Habeas corpus: the name of a legal action,
through which a person can seek relief from
unlawful detention of himself or another
person.
 Literal Meaning: to bring the body
 Technical Meaning: an application to
challenge the validity of arrest which
requires a person to be brought to the court
to determine the legality of his detention
 Habeas Corpus is one of the prerogative writ
available in Common Law, i.e one of the
powers that the court in common law system
originally have in their jurisdiction (even
without any written law, the court would have
such a power)

 A5(2): Habeas Corpus is not directly

mentioned in the provision!
 an important instrument for the
safeguarding of individual freedom against
arbitrary state action.
 in Malaysia - a constitutional guarantee
 Habeas corpus has been sought principally

in preventive detention cases dealing with

drugs and national security (because the
right of detainee under the preventive
detention is greatly reduced in the sense
that his right will be limited to the arresting
authority).
 Burden of proof is upon the detaining
authority to prove the legality of the detention but
once it is proven it is up to the detainee to prove
mala fide

 The detaining authority which is under duty to

prove the legality of the detention, would be able
to discharge that by ‘simply producing the order of
detention’, if its authenticity and good faith are not
impugned, is a sufficient answer. (Per Suffian J in
Karam Singh v Menteri Hal Ehwal Dalam Negeri
[1969]

 Practically it is almost impossible to establish bad

faith (mala fide) on the part of the authority- it is
subjective
 Power of High Court to make certain orders Section
365 of the Criminal Procedure Code
 The High Court may whenever it thinks fit direct—
 (a) that any person who:
 (i) is detained in any prison within the limits of
Malaysia on a warrant of extradition whether under
the Extradition Act 1992 [Act 479]; or
 (ii) is alleged to be illegally or improperly detained in
public or private custody within the limits of
Malaysia, be set at liberty;
 (b) that any defendant in custody under a writ of
attachment be brought before the Court to be dealt
with according to law.
The Scope of Habeas Corpus
Yeap Hock Seng v Minister of Home Affairs
[1975] 2 MLJ 279
The case involved the detention under
Emergency (Public Order and Prevention of
Crime) Ordinance 1969 (EPOPCO)
In deciding this case, certain observations
made by the court
1- it is available to a detainee as of right, i.e
it is not a discretion of the court unlike other
prerogative writs
2- it is not a remedy of last resort, i.e even
you have other alternative remedies, you can
still choose for Habeas Corpus
 E.g the person detained without trial has
certain rights under A151 but having such
rights does not stop him from applying for
Habeas Corpus
 It has also been decided that Habeas Corpus
is not available to a person serving a
sentence passed by a court of competent
jurisdiction unless there is a claim that the
court has no jurisdiction to hear the case
(Kok Wah Kuan v Pengarah Penjara [2004] 5
MLJ 193)
 The applicant was detained under a detention
order dated by the Minister responsible for
internal security pursuant to s 6 of the
Dangerous Drugs (Special Preventive Measures)
Act 1985.
 In this application, the detainee sought for an

order of habeas corpus on the grounds that

there was no proper service of the detention
order by the police on the detainee himself; and
there were certain procedural requirements of
the Act breached by the respondents.
 The High Court allowed the application and
held inter alia: the failure to comply with such
procedural requirement which time and time
again has been held by the highest court in
this country, vitiated the detention order
issued. The court issued the writ of habeas
corpus and ordered the release of the
detainee.
1. to be informed of the ground of
arrest as soon as may be [5(3)]

2. To be accorded right to legal

representation [5(3)]

3. To be produced before a magistrate

[5(4)]
 These are the rights available to an arrested
person under the FC based on the
understanding that an arrested person is
innocent unless proven guilty. Even if he is
guilty, he has the right to be heard according
to proper procedures
Purposes to give this right
1- in order for the accused to explain any
misunderstanding
2- it will provide opportunity to the arrestee to
start preparing his defence
 According to decided cases, there is scope of
this right
- The information given to the arrestee need

not be in strict legal terminology

Chong Kim Loy v Timbalan Menteri Hal Ehwal
Dalam Negeri
- The exact time in which the grounds must be

informed to the arrestee

◦ “as soon as may be”: depends on the facts of the
case.

◦ Yit Hon Kit v Minister of Home Affairs: delay of 57

days between arrest and informing the detainee
of the grounds is clearly contrary to A. 5(3) –
render the arrest invalid.
◦ Aminah v Superitendent Prison Pangkalan Chepa:
The word as soon as may be means as nearly as
is reasonable in a circumstances of a particular
case. The requirement under A5(3) has been
fulfilled when the arrestee knew the ground a few
hours after the arrest.
◦ A. 5(3)
◦ To make sure the detainee know his rights under
the law
◦ This involves different stages in the criminal
process: consultation at the police station, &
representation in court
WHY?
So that the detainee knows his right
Allow the lawyer to prepare defense

WHEN?
- The provision is silent
- This right cannot be exercised immediately. The
courts have been willing to grant the
investigating officer a period of time to
interrogate the arrestee without the interference
of the lawyer (Ooi Ah Phua v Officer in-Charge
Kedah/Perlis [1975] and Hashim Saud v Yahya
Hashim [1977])
 The right of consultation involves balancing the right to
consult a lawyer with the duty of the police to collect
evidence of wrongdoing; thus although the right to counsel
begins on the day of arrest, it cannot be exercised
immediately after arrest if it impedes police investigation or
the administration of justice.

 Ooi Ah Phua v Officer in-charge of Criminal Investigation

[1975] (FC): delay of 10 days
 Hashim bin Saud v Yahaya bin Hashim [1977] (FC): delay of 6
days

 Saul bin Hamid v PP [1987]: when police apply to the

magistrate for further remand under the CPC, the arrested
person is entitled to legal representation.
 When the complainant in an alleged offence of corruption was
summoned by the first appellant to attend at its office to
provide a statement to assist it in its investigation into the
said offence, he arrived at the office accompanied by the
respondents who were his lawyers.
 The respondents insisted on being present when their client's
statement was being recorded contending that he had a
constitutional right to have his counsel present. Initially, the
MACC objected, stating that there was no provision in the
Malaysian Anti-Corruption Commission Act 2009 that gave
the respondents the right to be present. However, because of
their persistence, the respondents were allowed to be present
on condition their statements might also be recorded.
 Federal Court: allowed the appeal
 Held: Articles 5(2) or (3) of the Federal Constitution did not
confer any constitutional right on the complainant to be
represented by counsel during the recording of his statement as a
witness. He was the complainant against a suspect in the
commission of a corruption offence under s 16(b) of the Act. The
complainant was a witness and not a suspect nor an arrested
person or a person 'unlawfully detained'.
 The respondents' contention that their client had a constitutional
right under art 5 to be represented by counsel was just a bare
assertion without authority to support it.
 An allegation that the notice was issued as an act of intimidation
or was issued mala fide based on the unmeritorious contention
that the complainant had a constitutional right to be represented
by counsel during the recording of his statement could not be the
basis for quashing the notice
 Public Prosecutor v Phee Boon Poh & Ors
[2018] 9 MLJ 376
 High Court: In invoking s 28A(8) of the CPC, the arrested person was
being deprived of his right to a legal counsel as provided under art
5(3) of the Federal Constitution and s 28A(2)-(7) of the CPC. As a
matter of judicial practice, before a court exercises its judicial
discretion, there were procedural safeguards and fairness that
should be followed.
 Therefore, the reasons justifying the deprivation of the applicants’
liberty ought to be clearly stated.
 Failure of the Senior Assistant Registrar to determine on the initial
objection had deprived the applicants from their fundamental rights
to a legal counsel there upon caused adverse consequence to the
applicants
 Initial objection-in respect of the prohibition by the respondent for
the applicants to have access to their legal representatives under s
28A of the CPC
◦ A. 5(4)

◦ Requires that the production must not be delayed

unreasonably and that the detainee could not be
further locked up without the magistrate’s
authority

◦ This is to ensure that the detainee has not been

subject to cruelty;

◦ e.g. the magistrate will be able to see that there

was no beating and that she may ask question to
the detainee
◦ S117 of the CPC
 Persons are often remanded indefinitely by
way of chain smoking orders- i.e. arrested
and detained in one district for 14 days under
order of magistrate and so on.
 Amendment to CPC in 2006
 24 hours does not include the time of required
journey
 It does not include public holiday

 Exceptions to the general rule:

 1- a person charged under RR Laws (repealed) shall
not enjoy this right
 2- a non-citizen arrested under immigration laws-
instead of 24 hours, the period applicable for him
is 14 days- e.g illegal immigrant
 3- the right is not applicable enemy alien (country
which is at war time situation)
 In 2011, Restricted Residence Act 1933 was
repealed by the Restricted Residence (Repealed) Act
2011
 Inspector General of Police v Lee Kim Hoong [1979]
2 MLJ 291- A5(4) required the arrested person to
be produced before the magistrate on the day of
arrest itself.

 In Re the Detention of R.Sivarasa & Ors [1997] n1

CLJ 471- the detention of a person by the police
beyond 24 hours after his arrest must be done in
strict compliance with S117 of CPC so that the
decision to extend the detention is virtually made
by the judiciary and not by the executive,
something which will make the decision in
consonance with A5(4) of the FC
 Procedure where investigation cannot be
completed within twenty-four hours- Section 117
of the Criminal Procedure Code
 (1) Whenever any person is arrested and
detained in custody and it appears that the
investigation cannot be completed within the
period of twenty-four hours fixed by section 28
and there are grounds for believing that the
accusation or information is well founded the
police officer making the investigation shall
immediately transmit to a Magistrate a copy of
the entries in the diary hereinafter prescribed
relating to the case and shall at the same time
produce the accused before the Magistrate.
 (2) The Magistrate before whom an accused person
is produced under this section may, whether he has
or has no jurisdiction to try the case, authorize the
detention of the accused in such custody as follows:
 (a) if the offence which is being investigated is
punishable with imprisonment of less than fourteen
years, the detention shall not be more than four
days on the first application and shall not be more
than three days on the second application; or
 (b) if the offence which is being investigated is
punishable with death or imprisonment of fourteen
years or more, the detention shall not be more than
seven days on the first application and shall not be
more than seven days on the second application.
 (3) The officer making the investigation shall state in
the copy of the entries in the diary referred to in
subsection (1), any period of detention of the
accused immediately prior to the application, whether
or not such detention relates to the application.
 (4) The Magistrate, in deciding the period of
detention of the accused person, shall take into
consideration any detention period immediately prior
to the application, whether or not such detention
relates to the application.
 (5) The magistrate in deciding the period of detention
of the accused shall allow representations to be made
either by the accused himself or through a counsel of
his choice.
 (6) If the magistrate has no jurisdiction to try
the case and considers further detention
unnecessary he may order the accused person
to be produced before a Magistrate having such
jurisdiction or, if the case is triable only by the
High Court, before himself or another
Magistrate having jurisdiction with a view to
transmission for trial by the High Court.
 (7) A Magistrate authorizing under this section

detention in the custody of the police shall

record his reasons for so doing.
 Rights of person arrested Section 28A of Criminal
Procedure Code
 (1) A person arrested without a warrant shall be informed
as soon as may be of the grounds of his arrest by the
police officer making the arrest.
 (2) A police officer shall, before commencing any form of
questioning or recording of any statement from the person
arrested, inform the person that he may— (a) communicate
or attempt to communicate, with a relative or friend to
inform of his whereabouts; and (b) communicate or
attempt to communicate and consult with a legal
practitioner of his choice.
 (3) Where the person arrested wishes to communicate or
attempt to communicate with the persons referred to in
paragraphs (2)(a) and (b), the police officer shall, as soon
as may be, allow the arrested person to do so.
 (4) Where the person arrested has requested for a
legal practitioner to be consulted, the police officer
shall allow a reasonable time— (a) for the legal
practitioner to be present to meet the person
arrested at his place of detention; and (b) for the
consultation to take place.
 (5) The consultation under subsection (4) shall be
within the sight of a police officer and in
circumstances, in so far as practicable, where their
communication will not be overheard.
 (6) The police officer shall defer any questioning or
recording of any statement from the person arrested
for a reasonable time until the communication or
attempted communication under paragraph 2(b) or
the consultation under subsection (4) has been made.
 (7) The police officer shall provide reasonable facilities for
the communication and consultation under this section
and all such facilities provided shall be free of charge.
 (8) The requirements under subsections (2), (3), (4), (5), (6)
and (7) shall not apply where the police officer reasonably
believes that— (a) compliance with any of the requirements
is likely to result in— (i) an accomplice of the person
arrested taking steps to avoid apprehension; or (ii) the
concealment, fabrication or destruction of evidence or the
intimidation of a witness; or (b) having regard to the safety
of other persons the questioning or recording of any
statement is so urgent that it should not be delayed.
 (9) Subsection (8) shall only apply upon authorization by a
police officer not below the rank of Deputy Superintendent
of Police.
 (10) The police officer giving the authorization
under subsection (9) shall record the grounds of
belief of the police officer that the conditions
specified under subsection (8) will arise and such
record shall be made as soon as practicable.
 (11) The investigating officer shall comply with the
requirements under subsections (2), (3), (4), (5), (6)
and (7) as soon as possible after the conditions
specified under subsection (8) have ceased to apply
where the person arrested is still under detention
under this section or under section 117.
ARTICLE 6 & 7