LIBERTY OF THE PERSON

Art 5 (4)

Noor Shuhadawati Mohamad Amin

Right to be produced before Magistrate within 24 hours of arrest

Art 5 - Liberty of the Person

(4)​ - the right to be produced before a magistrate within 24
hours of his arrest
“where a person is arrested and not released he shall without
unreasonable delay, and in any case within twenty-four hours
(excluding the time of any necessary journey) ​be produced
before a magistrate and shall not be further detained in
custody without the magistrate’s authority”
 Right to be
produced before
Magistrate Exceptions
within 24 hours
of arrest
Right to be produced before Magistrate within 24 hours of arrest

A person cannot be arrested more than 24 hours. If it is more than 24

hours, then the arrest is unlawful.
If the police want to keep the suspect more than 24 hours, then he
must obtain order form the Magistrate under Section 117 of Criminal
Procedure Court before the period of 24 hours finished.
 Exceptions
1. Restricted Residence Enactment made before Merdeka Day
Proviso:
“​Provided that this Clause shall not apply to the arrest or detention of any person under the existing
law relating to restricted residence, and all the provisions of this Clause shall be deemed to have
been an integral part of this Article as from Merdeka Day”

Loh Kooi Choon v Govt of Malaysia [1977] 2 MLJ 187

Court : If a person is arrested under law under Restricted Residence Enactment which is a law
before Merdeka Day, then the right to be produced before magistrate can be denied.
RRE 1933 is the pre-merdeka law.
 Exceptions
2. Relates to a person arrested due to immigration offences.

Proviso:
“Provided further that in its application to a person, other than a citizen, who is arrested or
detained under the law relating to immigration, this Clause shall be read as if there were
substituted for the words “without unreasonable delay, and in any case within twenty-four hours
(excluding the time of any necessary journey)” the words “within fourteen days.”
This means that for non-citizens, instead of 24 hours, the arrest can be for a period of 14 days.
 Exceptions
3. Relates to a person arrested under Shariah Criminal Offences.
Proviso:
“​And provided further that 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.”
Detaining authority to produce the arrested person before a magistrate (or as the case may be a shariah
court judge) without unreasonable delay, in any case within 24 hours of his arrest, and prohibits further
detention of the accused without the magistrate’s / shariah court judge’s authority.

4. Art 5 (3) and (4) do not apply to an enemy alien.

Enemy alien refers to a person who is not a Malaysian citizen, and he is a citizen of a country that is in
war with our country.
There must be a declaration of war, then the person can be denied of the right under Art 5 (3) and (4).
 Exceptions
5. Special Laws - Article 149 and Art 150 of the Federal Constitution
The law made under ​Art 149​: Legislation against subversion, action prejudicial to public order, etc.
These legislations can infringe Article 5,9,10 and 13.
The law made under ​Art 150​: Proclamation of emergency can infringe any rights.
The law made under this two provisions can deny the right of an arrested person under Art 5.
However, this exception is only applicable if there sis provision under that law which allow the
authority to deny the right under art 5(3) or 5(4).
 Exceptions
Chong Kim Loy v The Menteri Dalam Negeri, Malaysia [1989] 3 MLJ 121
Facts: Accused was arrested under section 3 of the Dangerous Drugs (Special Preventive Measures)
Act 1985 (DDA) and later detained under the law. It was argued that there had been a violation of
Article 5 (4) of the Constitution as the accused had not been produced before a Magistrate within
24 hours after his arrest and detention at the police station.
Court: The DDA is a legislation made under article 149. Legislation under Article 149 may restrict or
be inconsistent with the right conferred by Article 5(4) but any such restriction must be clear in the
legislation. The powers spelt out in section 3(2) do make such restriction manifestly clear and is
therefore valid notwithstanding that it is inconsistent with Article 5(4) of the Federal Constitution.
 Exceptions
Section 3 (2) of the DDA:
Any person arrested and detained under this section may be detained in police custody for a period
not exceeding sixty days, provided:
he shall not be detained for more than twenty four hours except with the authority of a police
officer of or above the rank of Inspector;
he shall not be detained for more than forty eight hours except with the authority of a police officer
of or above the rank of Assistant Superintendent of Police
he shall not be detained for more than fourteen days unless a police officer of or above the rank of
Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector
General or to a police officer designated by the Inspector General in that behalf and the Inspector
General or police officer so designated by him, as the case may be, shall forthwith report the same
to the Minister
 Exceptions
Kam Teck Soon v Timbalan Menteri Dalam Negeri, Malaysia [2003] 1 MLJ 321
Court: The majority of the Federal Court held that Art 5 does not apply to laws passed under arts
149 and 150 of the Constitution.

Andrew s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156
Court: Sufian LP in ruled that any form of detention does violates Art 5(1) and detention power
given by the law must be construed strictly and when in doubt, the court should favour the
detainee.