Article 5

Life and personal liberty

 Article 5(1)
“(1) No person shall be deprived of his life or
personal liberty save in accordance with law.”

Enjoyed by all persons, not just citizen

Rights will be read into, or implied into, statutes
In Aminah v Superintendent of Prison, Pengkalan
Chepa, the court held that Article 5 is meant to
apply to arrest under any law whatsoever in
force in Malaysia.
What is meant by “personal liberty”?
Loh Wai Kong v Government of Malaysia
The court held that ‘personal liberty’ as
guaranteed under article 5(1) does not include
the right to travel overseas and does not
include the right to own a passport. It merely
means “liberty relating to or concerning the
body of the individual”.
Sugumar Balakrishnan v Pengarah Imigresen
Negeri Sabah – liberty to go to court and apply
for judicial review
Muhammad Juzaili v Government of Negeri
Sembilan – right to cross-dress
Re JG, JG v Pengarah Jabatan Pendaftaran –
right to change reference to gender in identity
card
What is meant by “life”?

The word ‘life’ does not refer merely to animal

existence of breathing and living. It covers the
right to live with human dignity: Maneka
Gandhi v Union of India
Olga Tellis v Bombay Municipal Council - right to
livelihood
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan
Hong Leong Equipment Sdn Bhd v Liew Fook Chuan
Rama Chandran R v The Industrial Court of Malaysia

- ‘life’ in Article 5(1) includes the right to live in a

reasonably healthy and pollution-free environment
and the right to continue in public or private service
employment subject to removal for good cause
- right to livelihood
Does death penalty contravene Article 5(1)?

Article 5(1) allows Parliament to make laws providing for

death penalty. As long as there is legal provision
providing for death penalty, taking of life under the
administration of criminal justice is lawful under the
Federal Constitution.
– ‘save in accordance with law’
PP v Yee Kim Seng
PP v Lau Kee Hoo
What is meant by “law” in the context of “save in
accordance with law”?
Any law passed by legislature? Must the law include
natural justice principles or human rights values? Does
it refer to substantive law only? How about procedural
law?
Karam Singh v Minister of Home Affairs Malaysia
Ong Ah Chuan v PP
Che Ani Itam v PP
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan
 Article 5(2)
“(2) Where a 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.”

Habeas corpus
Section 365, Criminal Procedure Code
Abdul Ghani Haroon v Ketua Polis Negara
 Article 5(3)
“(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.”

This provision provides for three distinct rights:

(I) right to be informed of the ground of arrest;
(II) right to consult counsel; and
(III) right to be defended by a legal practitioner of
choice
• What is meant by “as soon as may be”?
• Right to be informed grounds of arrest
Aminah v Superintendent of Prison Pengkalan
Chepa – the phrase ‘as soon as may be’ was
held to mean ‘as nearly as is reasonable in the
circumstances of the case’.
Yit Hon Kit v Minister of Home Affairs
• Language to be used when informing grounds of
arrest – whether legal terminology or plain
language to be used? In general terms or in detail?
Re PE Long; PE Long v Menteri Hal Ehwal Dalam
Negeri Malaysia – oral communications
Chong Kim Loy v Timbalan Menteri Dalam Negeri –
involvement in drugs
Menteri Hal Ehwal Dalam Negeri v Lee Gee Lam –
grounds in the alternative “or”
• Does the right to consult a legal practitioner
begin immediately from the moment of arrest?
Ooi Ah Phua v Officer in Charge, Criminal
Investigations Kedah/Perlis
FC: the right begins from the moment of arrest…
but cannot be exercised immediately after
arrest. A balance has to be struck between the
right of the arrested person and the duty of the
police to protect the public.
Hashim bin Saud v Yahaya bin Hashim
Held: even though the right to counsel may start
right from the day of arrest, it cannot be
exercised immediately after arrest if it
impedes police investigation in the
administration of justice
Ramli Salleh v Inspektor Yahya bin Hashim

Held: general principles on the right to consult counsel:

(i) Right to consult lawyer begins from the time of arrest
(ii) Right of an arrested person to consult a lawyer is
subject to certain legitimate restrictions, for example
the need of the police to investigate the case.
(iii) Although the police is entitled to stop a lawyer from
meeting his client, the police cannot abuse its
powers.
(iv) The interview between the lawyer and
his client is privileged and cannot be heard by
the police.
(v) The police cannot arbitrarily stop the
lawyer from meeting his client.
(vi) Although section 117 of the Criminal
Procedure Code allows the police to detain
someone under remand, this power must be
exercised with care.
A distinction between the time that the right to consult
counsel arises and the time that the right can be
exercised must be made.
A balance has to be struck between the right of the
accused person to consult his lawyer on one hand and
on the other hand the duty of the police to protect the
public from wrongdoers by apprehending them and
collecting whatever evidence existed between them.
Ooi Ah Phua v Officer-in-Charge of Criminal Investigations
Kedah/Perlis
Hashim bin Saud v Yahya bin Hashim
• Whether the right in Article 5(3) is accorded to
an arrested person or to a lawyer
- PP v Mah Chuen Lim
• What is meant by “a legal practitioner of his
choice”?
Mohamed bin Abdullah v PP – not an absolute
right; no duty on the part of counsel to defend;
able and willing
PP v Vengadasalam
Sim Kie Guan v Public Prosecutor
Chong Fah Hin v PP
Shamim Reza v PP
 Article 5(4)
“(4) Where a person is arrested and not released he
shall without unreasonable delay, and in any case within
twenty-four hours (excluding the time of any necessary
journey) be produced before a magistrate and shall not
be further detained in custody without the magistrate’s
authority:
Provided that this Clause shall not apply to the arrest or
detention of any person under the existing law relating
to restricted residence, and all the provisions of this
Clause shall be deemed to have been an integral part of
this Article as from Merdeka Day.”
Sections 117 and s 119 of the Criminal
Procedure Code
Re Detention of Leonard Teoh
Re Detention of Sivarasa Rasiah