Article 5(2) and 5(3) of Federal Constitution contains constitutional rights of an accused person.
If this right is not fulfill the person arrested can claim for unlawful arrest.
Article 5(2) of Federal Constitution – Right to Habeas Corpus
1. Where a complaint made to High Court or any judge
2. That a person being unlawfully detained
3. The court shall enquire it
4. Unless the court is satisfied that the detention is lawful
5. If not shall order him to be produce before the court and order the release
A. Meaning of ‘detention’
1. Re Onkar Sharian – The detainee must be under physical custody. Thus a person who is under bail is not entitle for a writ of habeas corpus.
B. Application to any law
2. Aminah v Supt. Of Prisons Pengkalan Chepa – Article 5 of Federal Constitution is meant to apply to arrest under any law in force in this country.
C. Writ of habeas corpus can be brought by any person on behalf of the detainee
3. Zainab bt. Othman v Supt. Of Prison Pulau Jerajak – Habeas Corpus is brought under Chapter XXXV and it is a criminal (not civil) proceeding
D. Burden of Proof
Generally the burden is on the detainee officer. He must prove that the detention order is valid, authentic and fair. Once he proved this, the burden shift to the detainee
4. Karam Singh v Menteri Hal Ehwal Dalam Negeri – He has to prove that the power of detention has been exercised mala fide.
5. Chew Yoon Ling v Menteri Hal Ehwal Dalam Negeri – The burden of proof is generally on the detainee to show some invalidity in the detention.
Article 5(3) of Federal Constitution
Can be devided into 2 parts :
a. It provides that if a person is arrested he must be informed as soon as possible of the grounds of his arrest.
b. He must be allowed to consult and be defended by a legal practitioner of his choice.
Right To Be Informed On Ground Of Arrest
1. Aminah v Supt. Of Prison – As soon as may be means as nearly as is reasonable in circumstances of the particular case.
2. The manner of informing the arrested person was not specified.
Re PE Long @ Jimmy – Can be done orally
Right To Consult / Defended By Lawyer
1. Chie Khin Sze v The MB of Selangor - Where a person is arrested / detained under Section 2(1) RRE and the MB holds a further enquiry in camer, the detainee does not have the right to be represented by a lawyer. Right guaranteed under Article 5 of Federal Constitution does not extent to an executive act. It only covers detention under CPC not RRE.
2. Aminah v Supt. Of Prisons Pengkalan Chepa (10 years later) – Article 5 of Federal Constitution applicable to arrest under any law whatsoever in force in Malaysia including arrest under RRE. (Assa Singh v MB Johore). Thus, an accused can be represented by a lawyer.
When The Right To Consult A Lawyer Commence
1. Lee Mau Seng v Minister of Home Affairs Singapore & Anors – ‘as soon as may be’ means within reasonable time after arrest.
2. Ooi Ah Phua v OCCI Kedah/Perlis – On 26.12.1974 accused was arrested in connection of armed robbery. On 30.12.1974 his father engaged a lawyer (Karpal Singh). On the same day lawyer wrote to OCCI to see the accused but was not allowed because enquires were still going on. Habeas Corpus was applies. In High Court he lost the case. Lawyer appeal to Federal Court. Lawyer argued that the accused’s right to consult a lawyer begins as soon as he engaged a lawyer. Federal Court agree that the right to consult lawyer begins as soon as the accused was arrested. However the court must draw a line between the right of the accused and the right of the police to protect the public (apprehending suspect / collect evidence). Held : The accused is not entitled to be release on the ground that his right to consult a lawyer within a reasonable time has been denied.
3. Nan Shrimati Nandi Satpathy v P.L Dahang & Anor – The accused is entitle to consult a lawyer even during the investigation / interrogation stages. This is to avoid self incrimination.
4. Hashim Suut v Insp. Yahya – Accused detained under Section 117 suspect for theft. He was denied his right to met a lawyer. The police released the accused a few days before time. Held : The release shows that the police was responsible and no self incrimination.
Article 5(4) of Federal Constitution
1. Where a person is arrested and not released.
2. He shall be without unreasonable delay.
3. Within 24 hours (not include hours of journey).
4. Be produced in front of a Magistrate.
5. And shall not further put in custody without the authority of the magistrate.
(The clause does not apply to arrest/detention under restricted residence laws. Non citizen detained under Immigration Laws, the time is not 24 hours but 14 days.
* Section 28 and 117 of Criminal Procedure Code provides procedure as to how to deal with person arrested.
Article 5(2) of Federal Constitution – Right to Habeas Corpus
1. Where a complaint made to High Court or any judge
2. That a person being unlawfully detained
3. The court shall enquire it
4. Unless the court is satisfied that the detention is lawful
5. If not shall order him to be produce before the court and order the release
A. Meaning of ‘detention’
1. Re Onkar Sharian – The detainee must be under physical custody. Thus a person who is under bail is not entitle for a writ of habeas corpus.
B. Application to any law
2. Aminah v Supt. Of Prisons Pengkalan Chepa – Article 5 of Federal Constitution is meant to apply to arrest under any law in force in this country.
C. Writ of habeas corpus can be brought by any person on behalf of the detainee
3. Zainab bt. Othman v Supt. Of Prison Pulau Jerajak – Habeas Corpus is brought under Chapter XXXV and it is a criminal (not civil) proceeding
D. Burden of Proof
Generally the burden is on the detainee officer. He must prove that the detention order is valid, authentic and fair. Once he proved this, the burden shift to the detainee
4. Karam Singh v Menteri Hal Ehwal Dalam Negeri – He has to prove that the power of detention has been exercised mala fide.
5. Chew Yoon Ling v Menteri Hal Ehwal Dalam Negeri – The burden of proof is generally on the detainee to show some invalidity in the detention.
Article 5(3) of Federal Constitution
Can be devided into 2 parts :
a. It provides that if a person is arrested he must be informed as soon as possible of the grounds of his arrest.
b. He must be allowed to consult and be defended by a legal practitioner of his choice.
Right To Be Informed On Ground Of Arrest
1. Aminah v Supt. Of Prison – As soon as may be means as nearly as is reasonable in circumstances of the particular case.
2. The manner of informing the arrested person was not specified.
Re PE Long @ Jimmy – Can be done orally
Right To Consult / Defended By Lawyer
1. Chie Khin Sze v The MB of Selangor - Where a person is arrested / detained under Section 2(1) RRE and the MB holds a further enquiry in camer, the detainee does not have the right to be represented by a lawyer. Right guaranteed under Article 5 of Federal Constitution does not extent to an executive act. It only covers detention under CPC not RRE.
2. Aminah v Supt. Of Prisons Pengkalan Chepa (10 years later) – Article 5 of Federal Constitution applicable to arrest under any law whatsoever in force in Malaysia including arrest under RRE. (Assa Singh v MB Johore). Thus, an accused can be represented by a lawyer.
When The Right To Consult A Lawyer Commence
1. Lee Mau Seng v Minister of Home Affairs Singapore & Anors – ‘as soon as may be’ means within reasonable time after arrest.
2. Ooi Ah Phua v OCCI Kedah/Perlis – On 26.12.1974 accused was arrested in connection of armed robbery. On 30.12.1974 his father engaged a lawyer (Karpal Singh). On the same day lawyer wrote to OCCI to see the accused but was not allowed because enquires were still going on. Habeas Corpus was applies. In High Court he lost the case. Lawyer appeal to Federal Court. Lawyer argued that the accused’s right to consult a lawyer begins as soon as he engaged a lawyer. Federal Court agree that the right to consult lawyer begins as soon as the accused was arrested. However the court must draw a line between the right of the accused and the right of the police to protect the public (apprehending suspect / collect evidence). Held : The accused is not entitled to be release on the ground that his right to consult a lawyer within a reasonable time has been denied.
3. Nan Shrimati Nandi Satpathy v P.L Dahang & Anor – The accused is entitle to consult a lawyer even during the investigation / interrogation stages. This is to avoid self incrimination.
4. Hashim Suut v Insp. Yahya – Accused detained under Section 117 suspect for theft. He was denied his right to met a lawyer. The police released the accused a few days before time. Held : The release shows that the police was responsible and no self incrimination.
Article 5(4) of Federal Constitution
1. Where a person is arrested and not released.
2. He shall be without unreasonable delay.
3. Within 24 hours (not include hours of journey).
4. Be produced in front of a Magistrate.
5. And shall not further put in custody without the authority of the magistrate.
(The clause does not apply to arrest/detention under restricted residence laws. Non citizen detained under Immigration Laws, the time is not 24 hours but 14 days.
* Section 28 and 117 of Criminal Procedure Code provides procedure as to how to deal with person arrested.
