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.

Tags: , , , ,

Posts by

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.

Read more articles posted by .

Read this first: LB Terms of Use

10 Responses to Know Your Federal Constitution: Article 5

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