Anda di halaman 1dari 4

Article 5

 Article 5 is about LIBERTY OF THE PERSON (constitutionally guaranteed & protected)


 Construes ROL ( no person can be detained w/o proper process)

Art 5(1)
 “no person shall be deprived of his personal liberty SAVE IN ACCORDANCE WITH LAW
 As a general rule, every person has his personal liberty protected UNLESS THE LAW STATES
OTHERWISE
 This provision very essential to every individual
 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor
- This case concerned the allegedly wrongful dismissal of Tan Tek Seng
- Held : Art 5 which protect personal liberty under the law, must be read with liberal X literal
approach
 Government of Malaysia v Loh Wai Kong
- LWK states that msia citizens were entitled to travel overseas under art 5
- Held: no such right exist.
 Personal liberty : “a personal right not to be subjected to imprisonment, arrest/physical coercion, in any
manner that does NOT admit LEGAL JUSTIFICATION”

has 2 limbs :
a) Upholds individual’s right to freedom
b) States the situation where deprivation is justified (save in accordance with law)
- An individual’s liberty can only be taken away if law allows it to be so deprived.
- Case
i. Aminah v Superintendent of Prison
- Held – Art 5 is clearly meant to apply to arrest under ANY LAW in force in country
ii. Andrew s/o Tamboosamy v Superintendent of Pudu Prisons
- Held : power given by law to detain MUST BE CONSTRUED STRICTLY
iii. Kam teck Soon
- Held: Above interpretation TOO GENERAL & Art 5 DOES NOT APPLY to laws passed under
art 149 & 150.
Has 2 interpretations ;
a) Before case of Che Ani Che Itam v PP
o Interpretation was made LITERALLY (where any law passed to limit liberty is VALID cos
passed by the PARLIAMENT)
o Parliament can remove your rights as long as constitution not ALTERED
b) Laws passed must be in line with rules of natural justice
o Interpretation made in the case of Che Ani Bin Itam v PP
o FC adopted meaning from PC in Ong Ah Chuan v PP
o Term “law” : a system of law which incorporates fundamental rules of natural justice.
o In CABI , constitutionality of mandatory life sentence under Firearm act was challenged
o Held; Such punishment was arbitrary.

Cases

a) PP v Lau Kee Ho ( Held : death sentence under ISA NOT CONTRARY to Art 5(1)
b) Attorney General, Malaysia v Chiow Thiam Guan (Held : law is harsh but role of court is only to
administer )
c) Ajaib Singh in PP v Yee Kim Seng
- Law could mean any law passed by parliament
- Judges in msia NOT WILLING to question morality of law passed
 Msia courts held that law means any law passed by competent legislature in exercising its jurisdiction
 Msia courts preferred literal approach

Art 5(2)
Refers to detainee’s right to apply habeas corpus
If there is a complaint of unlawful detention, the individual has right to be released/brought b4 a court
The individual can seek a remedy (HC) , which is a writ which commands a person to produce detainee,
with details of detention in court
Abdul Ghani Haroon v Ketua Polis Negara & Anor
- Hishamudin J: Right to apply HC was not merely legal right, but also CONSTITUTIONAL
RIGHT.
- However on appeal, court held it was a matter for court to decide.
HOWEVER!!!
Re Datuk James Wong Kim Min : strict compliance must be observed in depriving a person liberty

Burden to prove detention is lawful?

Burden on detaining authority


Suffian J : burden can be discharged simply by producing order of detention as long issued in good faith
& authentic.
BUT, Hishamudin J: BOP is on detainer to justify it, must be interpreted as humanely as possible.

Procedural Requirement on HC application?

Lee Kew Sang v Timbalan Menteri Hal Ehwal Dalam Negeri (2 requirement to be satisfied)
a) There is law lay down procedural requirement
b) Grounds argued for applicant falls within meaning of non-compliance
Kok Wah Kuan v Pengarah Penjara Kajang

Art 5 (3)
Gives arrested person right to be informed of the grounds of arrest & right to counsel ASAP

Grounds to arrest

Mohamed Ezam bin Mohd Nor v Ketua Polis Negera (right to counsel is inferior to right to know ground
of arrest)
Kam Teck Soon (right to be informed of grounds of arrest NO AVAILABLE under art 149&150)
Aminah v Superintendent of Prison (defined as ready as is reasonable in the circumstances of case)
Yit Hon Kit v Minister of Home Affairs (a delay of 57 days in informing detainee of grounds NOT
reasonable)

Right to consult by legal practitioner

Lee Mau Seng v Minister of Home Affairs (such rights available within reasonable time of arrest)
Ooi Ah Phua v Officer in Charge; Criminal Investigations, Kedah/Perlis (rights only be imposed after
the police have completed their investigation)
HOWEVER, Lim Chin Chin v Inspector General of Police (it is for detainee to show that police has in
bad faith obstructed detainee from exercising right to counsel)
Re G.G Ponampalan & Re D/Cruz : detainee has no right to insist on lawyer on overseas

Art 5(4)
Rights of an arrested person to be produced before the magistrates within 24 hours
Does not protect citizens who are arrested under restricted residence laws
Period is 14 days for arrests of non-citizens under immigrations laws
Inspector – General of Police & Anor v Lee Kim Hoong (required arrested person to be produced before
the magistrate on the day of arrest)

The same rights had been uttered in Article 2 of the UNDHR, as well as under Article 2 and 5 of the
ECHR.
Article 5 of the FC v ECHR / UK

Article 5 FC ECHR/UK

• Right is constitutionally guaranteed; • UK: Unwritten Constitution, not


written and codified constitution constitutionally guaranteed;
• Article 5 Malaysia; “save in protected under common statutes;
accordance to law” – application Human Rights Act 1998 which the
based on other laws passed by the result of incorporation of ECHR to
parliament the UK law
• Article 5; No situations/ all situations • Article 5 of ECHR is more restrictive.
where rights can be removed • Article 5 ECHR ; stipulates 6
• Have several other laws recognizing situations
detention without trial • Article 6 ECHR : Fair Trial ; no one can
• Rights under Article 5 can be be guilty without going to full trial
suspended; ie Emergency • Rights cannot be suspended; but the
Parliament can repeal / amend/
abolished it because its ordinary
nature; not a constitution

 Reform should be made;


 Is Article 149 for Legislation against subversion is necessary to be restrictive mechanism
 Application of Article 150; should have check and balance
 Article 5(1)“Save in accordance to law”? Justified? Should be amended?
 Article 5(2) : Habeas Corpus: should not be ambigious