Know Your Federal Constitution: Article 5

Article 5 is the Liberty provision.

5(1) triumphantly declares: no person shall be deprived of his life or personal liberty save in accordance with the law.

5(2) provides that if someone complains of being unlawfully detained to a High Court judge of similar or higher rank the court “shall” inquire into the complaint. The “shall” suggests a mandatoriness notwithstanding that it is in the Constitution because it concerns the right and liberty of a citizen. And if the court is satisfied that the detention is unlawful, it would order him to be produced before it and released.

This is the provision that allows for the filing of a Writ of Habeas Corpus. The Wikipedia definition is, ‘a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.’ That’s a pretty accurate summary of what it is. So when you hear of people being detained under the infamous Internal Security Act 1960 (ISA) and lawyers soon after rushing to court filing applications – that is what they file.

5(3) states that when a person is arrested he must be told why he is arrested as soon as possible and be allowed to consult and be defended by a lawyer ‘of his choice’. This provision appears conclusively interpreted in the decision of Federal Court of Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 with Suffian LP, Lee Hun Hoe (Borneo) CJ and Wan Suleiman, FJ (as a short aside, it is interesting to notice how the judges’ names were spelt in the old days – their titles are not included). The relevant portions are as follows:

In the light of the authorities cited above, I am of the opinion that the right of an accused person remanded in police custody, to consult and be defended by a legal practitioner of his own choice as embodied in cl (3) of article 5 of the Constitution begins right from the day of his arrest even though police investigation has not yet been completed. On the other hand, the law also requires the police to carry out investigations in order to satisfy the constitutional requirement of cl (1) of article 5 with a view to bringing offenders to justice. It is in that respect and towards that end that the fundamental right of the accused to consult Counsel of his own choice should be subject to certain legitimate restrictions which necessarily arise in the course of police investigation, the main object being to ensure a proper and speedy trial in the Court of law. Such restrictions may relate to time and convenience of both the police and the person seeking the interview. They should not therefore be subject to any abuse by either party, for instance, by the police in unreasonably delaying the interview or by Counsel in demanding an interview at any time that suits him or by interference with investigation.

With respect I agree that the right of an arrested person to consult his lawyer begins from the moment of arrest, but I am of the opinion 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 elements are deterred most of all by the certainty of detection, arrest and punishment.

Before moving on, this for me is one of Tun Suffian’s poorer judgments because he chose the purported right of the State to investigate over the right of an accused to consult his lawyer. Maybe I’m a little silly, but I cannot understand how the right of the accused to consult his lawyer is incompatible with the police’s right to investigate the matter without interference. It also betrays Tun Suffian’s thinking about lawyers because he thinks their presence or participation would impede the due process of the law.

Did His Lordship suppose that once the accused is advised by the lawyer, the accused would do something illegal? A lawyer is an officer of the court and is duty bound to advise his/her client of only lawful matters and the severity of the law in indulging illegal ones. This would mean that their presence would actually facilitate the investigations and due process of the law. Sure there are unethical lawyers who advise their client the contrary but then there are such judges like that too. But for His Lordship to ‘apply’ this standard to all lawyers is uncharacteristically unfair. And anyway, what’s the point of telling us we have a right but then at the same time that it is suspended for about 24 hours. What a teaser. Might as well just say that right starts after the 24 hours.

But thankfully attitudes have changed, and surprisingly from the Legislature instead of from a possibly more liberal and robust interpretation of the provision from the Judiciary. After all, it is the Constitution. The law was somewhat recently amended to include section 28A of the Criminal Procedure Code which spells out the rights of an arrested person. I will deal with the subsections of the provision in turn and have re-written the provisions to make it less harder to understand (I hope).

28A(1) states that if you are arrested without a warrant, you must be told as soon as possible the grounds of your arrest by the arresting police officer.

28A(2) provides that before the police start any form of questioning or recording any statement from you, the police have a duty to inform you that you have the right to (a) call or try to call, a relative or a friend to inform them where you are; and (b) call or try to call and consult with a lawyer of your choice.

The use of the word ‘and’ suggests that you have the right to make 2 calls. One to the concerned friends or family and the other to the lawyer. A generous improvement from before when there was no such right! If they do not inform this to you, it is a breach of their duty and you should demand for it.

28A(3) provides that the police must give you that right to call or try to call your friend/family/lawyer as soon as possible. They cannot delay us this right.

28A(4) states that if you requested to consult your lawyer, the police must allow reasonable time for your lawyer to arrive where you are held and for a consultation with him.

28A(5) then provides that your consultation with your lawyer shall be within the sight of a police officers but without being overheard, unless it is impractical to do so.

28A(6) dictates that the police are not to carry out the questioning or recording of statement on you until you have been given the opportunity to contact your family/friends/lawyer or having consulted your lawyer.

And do not worry if you don’t have any money, 28A(7) covers that. The police must provide reasonable facilities to call and an area for consultation with the lawyer and all that must be provided for free of charge.

28A(8) onwards are the killjoy provisions.

Under this, those rights to call and consult are suspended when at least a Deputy Superintendent of the Police (DSP) [28A(9)] ‘reasonably believes’ that permitting the exercise of those rights would ‘likely to result’ in three circumstances.

Firstly, (i) your accomplice taking steps to avoid apprehension; secondly, (ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness, or thirdly, (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. Since the word ‘or’ is used, the provisions indicate that each one can be used as a reason for the suspension of those rights and you do not need them in combination.

In 28A(10), the DSP must record his grounds of belief that the conditions for the suspension of those rights and a record of it must be made as soon as practicable.

Finally, 28A(11), provides that soon after the conditions for the suspension of those rights cease to exist, the police must immediately allow the exercise of the right to call and consult.

Article 5(4) provides that if you are arrested and not released, the police must within 24 hours (excluding the time of any travelling) produce you before a Magistrate if they want to detain you any longer. After the 24 hour period, the police must get a court remand order. If not the detention after that is illegal. There are provisos but there are not quite relevant for us (but if you want to know, I’ve explained it after the end of this article) here.

Article 5(5) provides that enemy aliens have no right to call, consult or require a detention order after a 24 hour period after their arrest.

After reading this I hope you should know the moral of this story:

Put your lawyer’s super secret mobile number on speed dial.

You never know when you are going to need it.


Now, there are exceptions/provisos to Article 5(4) which state that the requirement for an arrested person to be produced before a Magistrate within 24 hours Article would not apply in three situations:

Firstly, in respect of a person arrested or detained under legislation pertaining to restricted residence such as under the Restricted Residence Act 1933.

Secondly, in respect of those arrested or detained under immigration laws. For them, the police may detain persons for up to 14 days before requiring a court remand order.

Thirdly, if you are arrested for an offence triable by a Syariah court, instead of a Magistrate, you would be brought before a Syariah court judge.

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Posts by Fahri Azzat

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 23 May 2009. You can follow any responses to this entry through the RSS 2.0.

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10 Responses to Know Your Federal Constitution: Article 5

  1. Fleemin

    When your voicemail is full, it sends the message that you aren't available and don't necessarily want to be. professional voicemail greetings script

  2. Pingback: The BN and the ISA « Dewan Pemuda PAS Sarawak

  3. mei1

    in other words, more efforts need to be put in to educate the public & increase their awareness.

  4. Mei1, well, it's just too bad. If they could not take the trouble or effort to do so then they pay the price for their apathy or ignorance later.

    Lawyers cannot go and solicit for clients. It's unethical by our rules. And the Bar Council cannot simply recommend some firms because it would be unfair to others.

    There comes some point when a citizen has to be mindful ofhis duties and the law as well. This is one of them.

  5. mei1

    Fahri, thanks for the explanation. I do have a couple of numbers in hand, but what about those who don't even know the existence of Bar Council & do not have any lawyer's contact number?

  6. Dear Janetlee,

    It certainly would and I think we should start 'translating' the laws in to more readily understandable and easier reading formats for the public consumption. This is a good way to empower the citizens so that they know how to think about political and legal issues constructively and meaningfully.

    Dear Mei1,

    (1) You should be given reasonable attempts to try and reach them. That means if they do not pick up or are engaged then you shold be entitled to do so until you actually get in touch with them. Of course this is subject to reasonability as well – you cannot be trying for 24 hours. The point of the provision is not supposed to be illusory – it is to enable the arrested person to (i) let people know where they are and (ii) allow them legal consultation before the questioning begins.

    (2) No the legal aid is not open 24/7 and actually only services the impecunious. If you want a lawyer, I suggest you call up the Bar Council for a directory or you can go to their website for a listing of the firms or lawyers. And worse come to worse – get yourself introduced to one from your friends or relatives. There are many around who can at least point you in the right direction.

    Hope that helps!

  7. Janetlee

    Dear Fahri,

    I am indeed enlightened. Thanks.

    Would breaking down the legal lingo into 'lay man' language able to reach out to those citizens whom are non-legal persons?

    Also the comments & questions from Mei1 24.05.2009 seems possible –


  8. mei1

    I've couple of questions after reading the above:

    "The use of the word ‘and’ suggests that you have the right to make 2 calls. One to the concerned friends or family and the other to the lawyer."

    Q1) what if the number that a person dials is not accessible at the time of calling, say line busy or voice mail, etc, is it counted as one call or till a person manages to contact someone to seek help?

    "Put your lawyer’s super secret mobile number on speed dial."

    Q2)what if a person does not have any lawyer's mobile number? Is the Legal Aid centre open 24/7?

  9. Dear Janetlee,

    We have that right available here as well and it is inherent in Article 5(3). I would think that the right to not self-incriminate is an integral part of the entire criminal due process system we have inherited from the English which (that the Americans inherited too) was eloquently expressed by Viscount Sankey in the House of Lords decision of Woolmington v DPP [1932] AC 462 where his Lordship said:

    "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused."

    If there were no such right available then there would need this entire edifice of law demanding that the prosecution prove its case against an accused. They could just leave it to the police to beat/threaten/bribe an accused for their confession – which was pretty much their standard operating procedure until the Legislature had to amend section 113 of the Criminal Procedure Code to limit the admissibility of such 'cautioned statements'.

  10. Janetlee

    Point taken, Fahri.

    These are Rights to Liberty And Freedom of a citizen which must be repeated time and time again until it is 2nd nature unlike in the USA, school kids are already taught in School and further guided by the ABA (American Bar Association) on the rights and liberty under the US Constitution by simply using cartoon characters for easy learning.

    If I may, I believe we need to break down the legal language into 'lay man' terms for the benefit of non-legal practioners in Bahasa Malaysia, Mandarin and Hindu.. Urdu too if relevant.

    Finally, I believe a citizen has to a right to exercise his or her rights on the 5th Amendment under the US Constitution — which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure.

    Text of 5th Amendment —-

    “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1] ”

    The fifth amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.[3]

    Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.[4][5]

    Custodial interrogation —

    The Fifth Amendment limits the use of evidence obtained illegally by the law enforcement.

    Miranda v. Arizona (1966) was a landmark case involving confessions.

    To incorporate — Right to keep silent from self incrimination —

    Food For Thought???