11 fundamental art 5 9 (7)

FUNDAMENTAL RIGHTS

POLITICAL & MORAL THEORY• The main political & moral assumptions are:• Human Rights (HRs) are inherent.

They belong to an individual by virtue of his or her humanity.• HRs do not depend on the existence of a State or a

Constitution. They enjoy an authority superior to and independent of government.

• HRs transcend time & territory. They represent universal standards for evaluating national laws & institutions.

• HRs are ancient in origin & are part of an evolutionary process that has been going on for centuries. All ancient religious of the world promote an ethic of humanity with difference emphasis.

• HRs represent legal & moral limits on the power of government.

WEST v EAST• West: denies any significant place for religious consideration.

East: recognise the religious basis of HRs doctrine.• West: emphasises on the individual/his/her rights against

society. East: subject individual rights to collective welfare

• West: deeply influence by market capitalism, political liberalism & individualism.East: socio-economics rights to basic necessities entitled same protection as civil & political liberties.

• West: emphasises on universal values. East: values pluralism & relativism – country’s social context especially China, Singapore & Malaysia.

RIGHTS,REMEDIES & RESTRICTIONS• The drafters of M’sia’s document of destiny incorporated into

the basic charter a number of political & civil rights.• Articles 5 to 13 of the FC guarantee the following basic rights:• Right to personal liberty, to the writ of habeas corpus, to

know the grounds of arrest, to be allowed to consult & be defended by a legal practitioner of one’s choice & (subject to some exceptions) to be produced before a magistrate within 24 hours (Article 5). Abolition of slavery (Article 6). Protection against backdated criminal law (Article 7). Protection against double jeopardy & repeated trials (Article 7). Right to equal protection under the law (Article 8). Freedom of movement (Article 9). Right to speech, assembly & association (Article 10). Freedom of religion (Article 11). Rights in respect of education (Article 12) & Rights to property (Article 13).

LIFE & PERSONAL LIBERTY• Articles 5 of the FC guarantees the following

basic rights:• Right to personal liberty, to the writ of habeas

corpus, to know the grounds of arrest, to be allowed to consult & be defended by a legal practitioner of one’s choice & (subject to some exceptions) to be produced before a magistrate within 24 hours.

LIFE & PERSONAL LIBERTY: Meaning of ‘Person’

• Article 5(1) ordains that ‘no person shall be deprived of his life or personal liberty save in accordance with law’.

• ‘Person’ refers to citizen & non-citizens. Even include artificial persons like ships/aircrafts on whom the law can confer legal personality.

LIFE & PERSONAL LIBERTY: Concept of Life• ‘Life’ covers ‘the right to live with human dignity’ including a

prisoner complaint of torture & necessities of life as adequate nutrition & clothing.

• In Malaysia, includes the right a. to seek & to continue in public/private service employment

subject to removal for good cause to fair procedure (Tan Tek Seng)

b. to livelihood (Utra Badi) including native customary rights (Nor Anak Nyawai)

c. enjoyment of a reasonably healthy & pollution free environment (Hong Leong)

d. to reputation (Utra Badi) • Other jurisdiction – the right to terminate one’s life through

suicide or euthanasia is still unsettled.

LIFE & PERSONAL LIBERTY: Meaning of Personal Liberty

• ‘Personal Liberty’ is ‘the soul’s right to breathe’ with the power of doing what is allowed by the law.

• According Tan & Li-ann, extends to freedom of expression/religion, the right to equal opportunity, the right to privacy & right to procreate.

• In the US, wide interpretation to include ‘all the attributes of personhood’ such as woman’s right to abortion (Roe v Wade).

LIFE & PERSONAL LIBERTY: Meaning of Personal Liberty

• In Malaysia, the court denied the righta. to travel overseas /to own passport (Loh Wai

Kong).b. to speedy & expeditious trial.c. to kiss / to hug in a public park (Ooi Kean Thong)• The court granted the righta. not to reside at a drug rehabilitation centre (Lim

Hai Sang)b. to seek judicial review (Sugumar)c. to change reference to gender in Mykad after

successful reassignment surgery from male to female (Re JG)

LIFE & PERSONAL LIBERTY: Meaning of in Accordance with Law

• ‘In Accordance With Law’ implies that the functionaries of 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 or valid law.

• This includes the Penal Code, Police Act, Criminal Procedure Code, Arms Act & Road Transport Act which empower law enforcement agencies to interfere with personal liberty.


• ‘Substantive or procedural law?’ • In earlier years there was an issue whether it refers

merely to substantive law (the law relating to rights, power & duties) or procedural law? (CPC)

• In Karam Singh [1969], the Federal Court rejected the ground of argument of the procedural requirements under Art 5(3).

• In Kok Yoke Koon [1988] & Tan Tek Seng [1996] affirmed that ‘law’ in Art 5(1) refers to both substantive & procedural law so that a detention in violation of procedures will be a nullity.


• ‘Lex or Jus ?’ • Refer to lex (ie valid law no matter how unjust) or to

jus & recht (ie law that is just & right) ? • To determine whether the protection of Art 5 works

only against executive arbitrariness or whether it also applies against oppressive law by the legislature.

• The prevailing view is that Art 5(1) does not import the American concept of ‘due process’ which enables the courts to examine the reasonableness of legislative measures.

LIFE & PERSONAL LIBERTY: Right to Know the Grounds of Arrest

• The first limb of Art 5(3) requires that where a person (other than an enemy alien) is arrested he shall be informed as soon as may be of the grounds of arrest.

• A long-standing common law entitlement laid down in Christie v Leachinsky [1947] AC 573 & affirmed by M’sia Federal Court in Abdul Rahman [1968].

• The consequence of this rule is that the police are not empowered to arrest for the sole purpose of questioning or 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 a seizable offence has been committed, is being committed & is about to be committed.

• The police must communicate the ground(s) to the arrestee as quickly as reasonable in the circumstances of the case: Aminah [1968] & Nik Adli [2001]


• Oral communication of the grounds is sufficient : Re PE Long @ Jimmy [1976].

• No need to use strict legal terminology but enough must be made known to afford the arrestee the opportunity of giving an explanation: Chong Kim Loy [1989].

• In Lee Gee Lan [1993] the grounds include the word ‘or’ and not ‘and’ in between was held as denying the detainee his constitutional right to know precisely the reason why he was being arrested.

• However, under the authority of emergency laws, the right in Art 5(3) can be deprived: Tee Yam [2005]

LIFE & PERSONAL LIBERTY: Legal Representation

• The second limb of Art 5(3) requires that every arrestee shall be allowed to consult & be defended by a legal practitioner of his choice.

• The right to legal representation is available at 2 stages – (1) after the arrest & (2) 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 [1975] & Hashim Saud [1977].


• According to the courts a balance must be struck between the entitlement of an arrestee & the duty of the police to collect evidence.

• The onus of proving that the right if exercised will impede police investigation falls on the police: Ramli Salleh [1973].

• The detainee must show that the police has, with bad faith, obstructed a detainee from execising his right: Theresa Lim [1988]


• In Abdul Ghani Haroon [2001] the High Court was persuaded that malice was present & habeas corpus was issued & also added to apply the guarantees for ISA detention cases.

• Tee Yam [2005](not violate) is in direct conflict with Ramli Salleh [1973](privilege) on issue of the presence of police officers in sight & hearing at meetings between detainees & his counsel.


• New subsections (2) to (7) has been introduced into section 28A of CPC on the right to consult a lawyer & required the police officer to inform arrestee that he may communicate with a relative/friend/legal practitioner before commencing any questioning/recording. The office also required to give a ‘reasonable time’ for consultation to take place within the sight but not within the hearing of the police officer unless reasonably believes (higher rank officer DSP) that the rights are likely to result in evidence being lost or safety of other person compromised.


• During Judicial Proceeding: The right to be represented in court was enforced strictly by the court :Saul Hamid [1987].

• Under the Public Order Prevention of Crime (Procedure) Rules 1972 there is a right to be represented by legal counsel during proceedings before the Advisory Board & cannot be refused: Parasuraman (2006)

• Lawyers must be qualified to practice in M’sia: Re GG Ponnambalan [1969].

• If not represented, the proceedings is still valid.

LIFE & PERSONAL LIBERTY: Production Before A Magistrate

• All arrest must be reported to the judiciary (subject to some exceptions).

• Art 5(4) requires that an arrestee shall within 24 hours (excluding travel time) be produced before a Magistrate & shall not be further detained without the Magistrate’s authority. (also provided under sections 28 & 117 of CPC).

• However, in practice the police seems to ignore this right & follows the ‘Chain smoking order’ where an accused person 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. The process is repeated as long as the police deem it necessary.

• A clear violation of the spirit of Art 5(3) but was given the judicial approval in Dasthigeer Mohamed Ismail [1999].

LIFE & PERSONAL LIBERTY: Production Before A Magistrate

• Exceptions:• a. Detainees under restricted residence laws & aliens are excluded• b. Non-citizens arrested under immigration laws, the 24-hour period is

extended to 14 days.• Amendments:• Section 28 (1) & 28 (3) of the CPC Act 2006 the deletion of the word ‘court’

allows the accused under remand to be produced before a Magistrate even on holiday/ a weekend. Prior practice, arrested on weekend/public holidays as the holidays are discounted in computing the 24 hours.

• Section 117 of the CPC Act 2006 prevents repeated & successive orders of remand as follows:

NoNo Duration of Duration of PunishmentPunishment

11stst Application Application 22ndnd Application Application (extension)(extension)

1.1. Imprisonment of less Imprisonment of less than 14 daysthan 14 days

Detention shall be no Detention shall be no more than 4 daysmore than 4 days

No more than 3 No more than 3 daysdays

2.2. Imprisonment of 14 Imprisonment of 14 years or moreyears or more

Detention shall be no Detention shall be no more than 7 daysmore than 7 days

No more than 7 No more than 7 daysdays

LIFE & PERSONAL LIBERTYRemedy of Habeas Corpus

• Article 5 (2) of the FC provides:‘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.’

• The safeguards for personal liberty in Art 5(1) are strengthened by the above provision.

• Art 5(2) refers to the common law writ of habeas corpus, as developed in the UK in the 17th century.


• The writ requires the detaining authority to bring the person in their custody before the court together with the grounds or reasons for his/her detention.

• The detention authority must explain to the court the grounds or reasons for his/her detention.

• If the reasons are ‘not in accordance with law’, the court has the duty to order his/her release forthwith.


• The detaining authority has the burden of proving that the detention is in accordance with law (Re Tan Sri Raja) [1988].

• Producing the order of detention discharges this burden. The onus then shifts to the detainee, especially if he/she alleges bad faith on the part of the detaining authority (Karam Singh) [1969]

• A person release by the court on an application of habeas corpus can sue the detaining authority for damages for unlawful imprisonment.


• Legal basis:• The legal basis for habeas corpus is Article 5

(1) & 5 (2) of FC, or• Section 25(2) of Courts of Judicature Act 1964

(along with clause I of the Schedule)• Sections 23, 28, 117 & 365 of the Criminal

Procedure Code (CPC)


• Legal basis:• Section 365 of the Criminal Procedure Code

(CPC) states that:• ‘The High Court may whenever it thinks fit direct –• (1) that any person who• (a) is detained in any prison within the limits of Malaysia on a warrant of

extradition whether under the Extradition Act 1992 (Act 479), or• (b) is alleged to be illegally or improperly detained in public or private

custody within the limits of Malaysia, be set at liberty,• (2) that any defendant is custody under a writ of attachment be brought

before the Court to be dealt with according to law.’


• Who can apply?• The detainee or someone acting on his/her

behalf can make an application for habeas corpus (Theresa Lim Chin) [1988].

• Citizens/non-citizens may apply for the remedy.


• Scope• Habeas Corpus can be applied for the following

situations:• a. to secure the release of any person who is

detained or arrested unlawfully. In RPK’s case, the Home Minister was held as making ‘ultra vires’ order – Justice Syed Ahmad ruled that the grounds for the detention order by the Home Minister did not fall under the scope of Section 8 (1) of the ISA.



situations:• b. to secure bail. (however in practice, the

application securing bail is by a notice of motion & affidavit sec 389 CPC or by an appeal to the High Crt sec 394 of CPC)

• c. to obtain expeditious trial. (cases keep on postponing & usually by a notice of motion or discharge not amounting to acquittal under Criminal Law)



situations:• d. to challenge the terms & conditions of bail on

grounds that the amount of surety required is excessive or other pre-conditions result in serious consequences for the liberties of the detainee (Tan Hock Chan) [1994]

• e. to challenge the denial of right to counsel (Abdul Ghani Haroon) [2001].


• Scope• However, habeas corpus was refused in the

following situations:• a. where the detainee alleged that he had

been assaulted (Teoh Yook Huwah) [1993].• b. where the detainee alleged that the

manner & condition of detention was oppressive (Lau Lee Eng)[1972].


• Scope• c. no requirement to produce detainee in court for

habeas corpus proceeding. In (Abdul Ghani Haroon) [2001] the Fed Crt interpreted Art 5(2) literally & held that the detaining authority has no duty to produce the detainee in court unless the court is satisfied that the detention is tainted with illegality.

• d. defects in the prior detention are irrelevant if current detention is lawful (Muhammad Jailani Kassim) [2006] & (Muhd Faizal Haris) [2006].

• e. to test the constitutionality of an Act of Parliament (Koh Wah Kuan) [2004] should raised under Art 4(3).


• Remedy of right• Habeas Corpus is a remedy of right for anyone complaining that

he/she is detained unlawfully. The court has no discretion to refuse habeas corpus if the detention was unlawful from the start or has become unlawful because of subsequent non-compliance with the law (Andrew v Supt Pudu Prison)[1976].

• Grounds for issuance of writ• The issues for consideration by the court in an application for

habeas corpus are:• a. whether life & personal liberty were deprived• b. whether such deprivations was ‘in accordance with law’• Any deprivation of life & personal liberty ‘not in accordance with

law’ amounts to ultra vires in administrative law.


• Illegality• The following are heads of ultra vires:• a. illegality of substance• b. illegality of purpose• c. illegality of procedure• Illegality of substance• The writ of habeas corpus will issue if a detention order suffers

from substantive ultra vires, excess of jurisdiction or lack of jurisdiction. The following are examples of illegality of substance:

• a. where the law under which the action was taken is unconstitutional or ultra vires. (Teh Cheng Poh)[1979].

• b. where the Sarawak law that was used is not applicable to other territory, eg West M’sia (Re Datuk James) [1976].


• Illegality of substance• c. where the detainee is not subject to the law, eg

where a juvenile is tried under a law which does not apply to him (Supt Wong Cheng Ho) [1980].

• d. where the detention exceeds the dates on the detention order. (Yit Hon Kit) [1988].

• e. where a person detained as an illegal immigrant had in fact entered the country lawfully (Lau Seng Poh) [1985].

• f. where the law required the satisfaction of the Minister but the Deputy Minister signs the detention order (Sukumaran) [1995].


• Illegality of purpose/ Irrationality• Examples are abuse of power, bad faith, wrong

purpose, unreasonableness, arbitrary exercise of power & lack of evidence.

• Examples of abuse of power are:• a. where immigration law permitting detention for

purpose of deportation is used to detain an illegal immigrant for 8 years (Lui Ah Yong) [1977].

• b. where the grounds of detention are not relevant to the object of the law (Tan Sri Raja Khalid) [1988].

• c. where there was no material evidence to make a rehabilitation order under the Misuse of Drugs Act (Daud Salleh)[1981].


• Illegality of procedure/ Procedural impropriety• (a) Mandatory Procedure -The doctrine of procedural

ultra vires requires that power must be exercised in accordance with mandatory procedural requirements. The following are situations where illegality of procedure was successfully pleaded:

• a. the time limit of Article 151 was violated (Tan Boon Liat) [1977].

• b. the requesting country of an extradition case was not a party to the treaty (Tan Hock Chan) [1994].

• c. only one copy of the grounds of detention & not two as required were supplied. (Puvaneswaran) [1991].


• Illegality of procedure• d. the safeguard of enquiry upon detention was

not complied with (Hj Omar Din) [1990].• e. the failure to give the party an opportunity to

make representation (Roshidi) [1988].• f. A delay of 57 days before the detainee was

informed of the grounds of arrest (Yit Hon Kit) [1998].


• Illegality of procedure• (b) Directory Procedure• a. procedural requirement is merely directory

where judicial review will be refused unless detainee has suffered some prejudice (Puvaneswaran) [1991]

• b. provision for inquiry by the Minister under the Restricted Residence Enactment is not mandatory (Cheow Siong Chin) [1987]

• c. procedural requirement under the extradiction laws (Chua Han Mow) [1979]

11 fundamental art 5 9 (7)

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