11 fundamental art 5 9 (7)

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.

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).

Personal Liberty

• In Malaysia, the court denied the right
a. 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 right
a. 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)

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.

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].

•
•
•
•
•

•

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:

No Duration of Punishment

1st Application

1.

Detention shall be no more
than 4 days
Detention shall be no more
than 7 days

2.

Imprisonment of less than
14 days
Imprisonment of 14 years
or more

2nd Application
(extension)
No more than 3
days
No more than 7
days

Remedy 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.

• Scope
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)

• Scope
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 noncompliance 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)

Recomendados

Recomendados

Mais conteúdo relacionado

Mais procurados

Mais procurados (20)

Semelhante a 11 fundamental art 5 9 (7)

Semelhante a 11 fundamental art 5 9 (7) (20)

Mais de Ainnabila Rosdi

Mais de Ainnabila Rosdi (20)

Último

Último (20)

11 fundamental art 5 9 (7)