Article 5 OF FEDERAL CONSTITUTION IN MALAYSIA Article 5 OF FEDERAL CONSTITUTION IN MALAYSIA PDF

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slideshare/nelfiamiera/article-5-liberty-of-a-peson ARTICLE 5Article 5 of Federal Constitution (FC) governs the liberty of a person. Article 5 generally construes the Rule of Law, as no person can be detained without following proper process or proper ground to be detained. Article 5 is embodied by ...

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https://www.slideshare.net/nelfiamiera/article-5-liberty-of-a-peson ARTICLE 5 Article 5 of Federal Constitution (FC) governs the liberty of a person. Article 5 generally construes the Rule of Law, as no person can be detained without following proper process or proper ground to be detained. Article 5 is embodied by 5 sub provisions, particularly, Article 5(1), Article 5(2), Article 5(3), Article 5(4) and Article 5(5). The same rights had been uttered in Article 2 of the UNDHR, as well as under Article 2 and 5 of the ECHR. – shows that the rights for liberty is of universal value. It is also being guaranteed under American Constitution; the 5th Amendment.  ARTICLE 5 (1) Article 5 (1) provides that no person shall be deprived of his personal liberty save in accordance with law. As a general rule, it is clearly found under Article 5 (1) that every person has his personal liberty protected unless the law states otherwise. This provision is very essential to every individual. Personal Liberty In Government of Malaysia v Loh Wai Kong, the court ruled that the term ‘Personal Liberty’ as in Article 5 (1) means a personal right not to be subjected to imprisonment, arrest, or physical coercion, in any manner that does not admit legal justification. Another facet of personal liberty guaranteed by Article 5(1) is the liberty of an aggrieved person to go to court to seek judicial relief. In Tan Tek Seng and Sugumar Balakrishnan, the Court of Appeal supplied the constitutional basis for a doctrine of substantive fairness. Non– arbitrariness and reasonableness in decision-making and proportionality in the choice of punishments are the essence of the rule of equality before the law in Article 8. In Sugumar Balakrishnan the court held that the combined effect of Articles 5(1) and 8(1) is to demand fairness not just in procedure but also in substance whenever a public law decision has an adverse effect on any of the facets of a person‟s life. Life In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidik & Anor, the court ruled that the term ‘Life’ as in Article 5 (1) does not refer to mere life. It incorporates all those facets that are an integral part of life itself and those matters which form the quality of life. For instance, employment and healthy environment. In Nor Anak Nyawai v Borneo Pulp, the court held that native customary rights can be considered as `right to livelihood’. `Life’ includes reputation and deprivation of reputation would be a violation of Article 5(1): Lembaga Tatatertib Perkhidmatan v Utra Badi a/l K Perumal [2000] 3 MLJ 281; Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72. Article 5 (1) of Federal Constitution has two limbs. First, it upholds the individual’s right to freedom. Secondly, it states the situations whereby the deprivation is justified. The Article in fact list all justified deprivation under the phrase ‘save in accordance with law’. Therefore, it can be said an individual’s liberty can only be taken away if the law allows it to be so deprived. Article 5 can nevertheless be read into or implied into statutes and this principle has

even been applied to preventive detention laws under Articles 150 (Emergency) and 149 (subversion). Nevertheless, in Andrew s/o Tamboosamy v Superintendent of Pudu Prisons, the court held that any form of detention does violence to Article 5(1) of the Constitution and hence power given by law to detain must be construed strictly and in cases of doubt or ambiguity the court should then lean in favour of the subject. However, in Kam Teck Soon v Timbalan Menteri Hal Ehwal Dalam Negeri, the court held that the ruling is too general and Article 5 does not apply to laws passed under Article 149 and 150. The phrase ‘save in accordance with law’ is vague. There are two possible interpretations of law. First, ‘law’ is any statute passed by parliament. Second, ‘law’ is higher standard than mere statute law. For instance, natural justice. In interpreting Article 9(1) of the Constitution of Singapore which is similar to Article 5(1) of FC, Privy Council in Ong Ah Chuan v PP and Haw Tua Tau v PP defines ‘law’ to a system of law which incorporates fundamental rules of natural justice. It means if the law did not conform to the standard, court have to strike off the law. However, in some Malaysian court decision regarding Article 5; it refers merely to enacted laws and not to general concepts of law such as natural justice. As in Che Ani bin Itam v PP and PP v Lau Kee Hoo, the mandatory life sentence under Sec. 4 Firearms (Increased Penalties) Act and the mandatory death sentence under Sec. 57(1) of Internal Security Act (ISA) is not inconsistent to Article 5(1). Even, Ajaib Singh in PP v Yee Kim Seng states that the court are obliged to administer the law as it is found in statues book and whether it is morally right or wrong is a matter of parliament to decide. The law mentioned could mean any law passed by Parliament, irrespective of whether such laws are morally right or not. The courts also feel that although a law may be harsh, the role of the court is only to administer the law as it stands. Although a law may be harsh, the role of the court is only to administer the law as it stands. In Dato Seri Anwar Ibrahim v PP, Haidar FCJ decided that no challenge could be made to the continued operation of ordinances made under Article 150 of FC. The court held that it may be argued that such a constitutional provision would amount to ‘closing the doors of the court’ and is therefore harsh and unjust. The answer is that this issue should be addressed to the Legislature and not the courts by those who disagreed with such a provision and they have their remedy at the ballot box. In Aminah v Superintendent of Prison, the court held that Article 5 is clearly meant to apply to arrest under any law whatsoever in force in the country. The view also being upheld in the case of Assa Singh v Menteri Besar of Johore. Nevertheless, in Andrew s/o Tamboosamy v Superintendent of Pudu Prisons, Tun Suffian LP held that any form of detention does violence to Art. 5(1) of the Constitution and hence power given by law to detain must be construed strictly and in cases of doubt or ambiguity the court should then lean in favour of the subject. Generally, Tun Suffian LP proposed that whenever a habeas corpus court is brought to court, the burden on proof is on the authority who performs the arresting. Such authority must prove that the accused is guilty of the

offence. Before Tun Suffian’s proposal, whenever the accused is wrongfully arrested and brought to court, the court will assume that the relevant authority has the right to arrest the accused. However, in the case of Kam Teck Soon v Timbalan Menteri Hal Ehwal Dalam Negeri, the court disagrees with Tun Suffian LP viewpoint and held that the ruling is too general and Article 5 does not apply to laws passed under Article 149 and 150. This case changed the standards that needs to be followed. There are two views to interpret the term ‘save in accordance with law’ as in Article 5(1) of FC. The first view is before the case of Che Ani Che Itam v PP. The interpretation was made literally; where any law passed to limit your liberty is valid because it was passed by competent body; the Parliament. Therefore, by this interpretation, the Parliament can remove your rights as long as the Constitution is not being altered. The second view is that law pass must be in line with the rule of natural justice. This interpretation is made in the case of Che Ani Bin Itam v PP. Here, the Federal Court adopted the meaning given by the Privy Council in the Singaporean case of Ong Ah Chuan v PP; where it was held the term law refers to a system of law which incorporates those fundamental rules of natural justice that had formed part of the common law of England and was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that ‘law’ which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules In Che Ani Bin Itam, the constitutionality of mandatory life sentence under Firearms (Increased Penalty) Act 1974 was challenged. The court held such punishment was not “arbitrary, fanciful and oppressive’. Generally, the courts in Malaysia have held the term ‘law’ in Article 5(1) does not import the notions of due process; that the word ‘law’ in Art. 5(1) is any law passed by competent legislature in exercising its jurisdiction. Thus, in Attorney-General, Malaysia v Chiow Thiam Guan, it was held that no matter how harsh the law is, the court’s role is only to administer the law as it stands. It’s not the court’s duty to disagree with the law. As such, the term ‘law’ in Article 5(1) has no real impact as far as the testing of the constitutionality of legislations is concerned. Malaysian Courts apparently preferred literal and pedantic approach on the issue. ARTICLE 5(2) Article 5(2) governs on the issue of habeas corpus. Article 5(2) of Federal Constitution provides that where complaint is made to a High Court or any judge that a person is being unlawfully detained the court will inquire into the complaint and unless satisfied that the detention is lawful will order his to be produced before the court and release him. A writ of habeas corpus literally means to “produce the body”. It is an order issued by a court of law to a prison warden or law enforcement agency holding an individual in custody. It requires that they deliver that prisoner to the court so a judge can decide whether that prisoner had been lawfully imprisoned and, if not, whether they should be released from custody. To be considered enforceable, the writ of habeas corpus must list evidence showing that the court that ordered the prisoner’s detention or imprisonment had made a legal or factual error in doing so.

Generally, Article 5(2) of FC incorporates the common law remedy of habeas corpus. Habeas corpus is a writ which commands a person to produce the detainee, with details of the detention, in court. If there is complaint of unlawful detention, the individual has a right to be brought before a court and to be released. In the case of Abdul Ghani Haroon v Ketua Polis Negara, the court held that by virtue of Article 5 (2) of the Federal Constitution, the right to apply to the High Court for a writ of habeas corpus was not a merely legal right, but also a constitutional right available to any person who believes that he has been unlawfully detained. Since the right is a constitutional right, he has every right to be present in court at the hearing of his application. In other words, the right to be present is a constitutional right implicit in Article 5(2) of the Federal Constitution. To illustrate, if one believes that he is unlawfully arrested and makes a complaint. Here, the court must investigate the complaint in accordance with the constitutional right vested in Article 5(2) of the Federal Constitution. Unfortunately, on appeal, the Federal Court reversed the said decision and held that the detainee’s right to be present in court when the application for habeas corpus is heard is not automatic. It was a matter for the court to decide. To illustrate, if one believes that he is unlawfully arrested and makes a complaint. Here, the court has no legal obligation to investigate the complaint. The court can choose whether or not to investigate the complaint. In the case of Re Datuk James Wong Kim Min, the court held that in a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person his liberty. The material provisions of the law authorizing detention without trial must be strictly construed and safeguards which the law deliberately provides for the protection of any citizen must be liberally interpreted. Generally, the court states that the court must indirectly investigate the complaint. On the issue of who bears the burden to prove that the detention is lawful, Article 5(2) of the Federal Constitution seems to put the burden on the detaining authority. In Karam Singh v Minister of Home Affairs, the court held that when a person complains that he is being illegally or improperly detained, it is for the detaining authority to justify the detention. In the ordinary way, he would produce an order of detention. If the detaining authority had complied with all conditions laid down by the law, then the order of detention which is authentic and made in good faith is a sufficient answer and the court must hold the order and detention lawful. In the case of Lee Kew Sang v Timbalan Menteri Hal Ehwal Dalam Negeri, the court ruled that there are two steps to be satisfied. First, there is law or rule which lays down the procedural requirement. Second, the grounds argued for the applicant falls within the meaning of non-compliance thereof. In this case, the applicant argued that the detaining authority failed to consider whether criminal prosecution ought to be taken against him and that the ground of detention was stale and remote. The arrested claimed that the authorities arrested him has no right to charge him. He thus claimed that the arresting is illegal. The Federal Court rejected these grounds as the power of to prosecute was vested at the hands of the Attorney General and non-reviewable and that there was no limitation period applicable in the circumstances. Generally, the court ruled that the acts of prosecuting and arresting one are two separate matters. Prosecution is up to Attorney General to decide whilst the arresting is up to the police to decide.

In the case of Kok Wah Kuan v Pengarah Penjara Kajang, the applicant was found guilty and convicted under Section 302 of Penal Code by the High Court. However, the court invoked Section 97 of the Child Act 2001 which provides for the power of YDPA to determine the applicant’s measure and to detain at His Majesty’s pleasure. The High Court in dismissing the application for Habeas Corpus, affirmed the long-standing principle that Habeas Corpus cannot be granted to persons who are serving sentences passed by the court of competent jurisdiction and unless the applicant’s conviction is set aside by the power of appellate court, he is lawfully in custody, serving lawful sentence. Thus, habeas corpus is not a means of appeals against conviction and sentence. To illustrate, if the court rules that the accused is guilty, it is impossible for him to apply for grounds of habeas corpus. ARTICLE 5 (3) Article 5 (3) of Federal Constitution governs the right to be informed the ground of arrest and right to counsel. Provided that if 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. Article 5(3) gives an arrested person the right to be informed of the grounds of arrest and a right to counsel as soon as may be. In Aminah v Superintendent of Prison, Pengkalan Chepa Kelantan, the term ‘as soon as may be’ was defined as ‘as ready as is reasonable in the circumstances of the case’. In Yit Hon Kit v Minister of Home Affairs, Malaysia & Anor, the court held that a delay of 57 days in informing the detainee of the grounds of arrest was held to be unreasonable. In the case of Kam Teck Soon v Timbalan Menteri Hal Ehwal Dalam Negeri, it was held that the right to be informed of the grounds of arrest is not available to provisions passed under Article 149 and 150. Article 5(3) of the Federal Constitution basically enables two type of limbs. First, the right to know ground of arrest. Second, the right to consult and defended by a legal practitioner. In regards of the first limb, in the case of Mohamed Ezam bin Mohd Nor v Ketua Polis Negara, the court held that the right to counsel is inferior to the right to know the ground of arrest. In other words, the denial of the former is not fatal to the detention. If right to council is denied, it does not mean Article 5(3) of Federal Constitution is violated. In Chong Kim Loy v Timbalan Menteri Hal Ehwal Dalam Negeri, the arrested man was told that his arrest was due to involvement in drugs but he was not told that it was related to drug trafficking where on punishment under the relevant law is mandatory death sentence. The court held that ‘the right to be informed, at the earliest possible moment, not in detail and not necessarily in strict legal terminology, but only in general terms, by virtue of that power he is being arrested and of the grounds of his arrest. But enough must be made known to him to afford him the opportunity of giving explanation of any misunderstanding’. As long as there is general explanation, it should suffice. In regards of the second limb, in the Singaporean case of Lee Mau Seng v Minister of Home Affairs, such right is available within a reasonable time of the arrest.

The position above was further clarified in Ooi Ah Phua v Officer in Charge. Criminal Investigations, Kedah/Perlis seems to have whittled down the right as it imposed the condition that could only be imposed after the police have completed their investigation. However, in the case of Theresa Lim Chin Chin v Inspector General of Police, the court held that it is for the detainee to show that the police have deliberately and in bad faith obstructed the detainee from exercising the right to counsel. Generally, it is not in line with Ooi Ah Phua’s case but closer in spirit to Article 5(3) of Federal Constitution. In Ramli Bin Salleh v PP, the court held that it is for the police to prove that affording the right would impede investigations and the police must not delay or obstruct meeting with the lawyer on arbitrary or fanciful grounds. In Re G.G Ponampalan and Re D’Cruz, the detainee has no right to insist on a lawyer from overseas. For example, in 2017, Anwar Ibrahim intended to hire a US based lawyer Kimberley Motley which was denied by Home Minister Ahmad Zahid. Kimberley Motley claims that it is fundamental that a person is entitled to access to legal advisors of his choice whilst in prison. She further added that the rejection of her request to meet Anwar is in breach of international standards on access to justice, and paints Malaysia in a bad light. However, the rights under Article 5(3) of Federal Constitution can be deprived under the authority of emergency laws such as ISA and SOSMA. In Tee Yam @ Koo Tee Yam v Timbalan Menteri, the rights of the accused under Article 5(3) of Federal Constitution were deprived because he was charged under ISA. ARTICLE 5 (4) Article 5(4) of Federal Constitution governs the rights of an arrested person to be produced before the magistrates within 24 hours. It ensures that the detainee has not been subject to cruelty. The producing of the detainee must not be delayed unreasonably. In the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court. Nevertheless, Article 5(4) of Federal Constitution does not protect citizens who are arrested under the restricted residence laws. For detention of non-citizens, the authority shall produce them before the magistrates within 14 days. In the case of Re Detention of S.Sivarasa & Ors, the court held that the liberty of an individual after arrest is at stake and Article 5(4) of the Federal Constitution reposes a heavy judicial duty on a Magistrate to decide whether a person should be detained or detained further. In the case of Inspector- General of Police & Anor v Lee Kim Hoong, the court held that Article 5(4) required the arrested person to be produced before the magistrate on the day of the arrest itself....