RIGHTS AND LIBERTIES OF AN

INDIVIDUAL
(ART 5, 6 & 7)

UCL1622
Introduction
- The general assumption is that every constitution must
grant a certain amount of rights and liberties to its citizens.
- The extent of these rights could vary from country to
country. Governmental policies, religions and other factors
influence the existence and the degree of freedom granted.
- It must be noted that no country grants absolute freedom
to its citizens.
- For academic purposes, the term ‘liberty’ is given a very
narrow interpretation. It means the state of being free from
any form of captivity, slavery, imprisonment and despotic
control.
- A ‘right’ on the other hand is considered as a privilege
granted under a particular law.
Position in the UK
■ Issue of civil liberty has been greatly debated not only in Malaysia, but
also in the UK.
■ Because UK has no codified constitution, rights and liberties are not
expressly protected by any form of higher laws.
■ The UK government nevertheless signed the European Convention of
Human Rights (ECHR) in 1951 and as such, the UK citizens were
given the right to appeal to the European Courts of Human Rights in
Strasbourg.
■ UK’s records with the European Courts of Human Rights was rather
not satisfactory and the citizens demanded more protection of their
liberties.
■ The UK government finally incorporated the European Convention of
Human rights into UK law by virtue of the Human Rights Act 1998.
■ Note that the HRA 1998 is just an ordinary Act of Parliament.
– As such, does it give sufficient protection?
Substantive rights under the ECHR
■ Article 1: the right to protection of all convention rights within domestic legal systems.
■ Article 2: the right to life
■ Article 3: the right to freedom from torture or inhuman or degrading treatment
■ Article 4: freedom from slavery
■ Article 5: freedom of the person
■ Article 6: the right to a fair trial
■ Article 7: freedom from retrospective criminal liability
■ Article 8: the right to respect for private and family life
■ Article 9: the right to freedom of thought, conscience and religion
■ Article 10: freedom of expression
■ Article 11: Freedom of peaceful assembly and association
■ Article 12: the right to marry and found a family
■ Article 13: the right to an effective remedy for the breach of convention rights
■ Article 14: the right to enjoy rights and freedom under the convention without
discrimination
Substantive rights under the ECHR
■ Articles 3,4,7 and 9 provides absolute rights.
■ The other Articles contain qualifying criteria.
■ Limitations take two forms:
1) Legitimate aims of the state which may restrict the protection of rights:
i. the interests of national security, public safety or the economic well
being of the country.
ii. the prevention of disorder or crime.
iii. the protection of health or morals, the protection of the rights or
freedoms of others.
iv. the prevention of disclosure of information received in confidence.
v. maintaining the authority and impartiality of the judiciary.

2) Limitations due to necessity

– The limitation/restriction must however be no greater than is necessary
to achieve the concept of proportionality.
Protection of Rights under the Federal Constitution

Article 5: Liberty of the person

Article 6: Slavery and forced labour prohibited
Article 7: Protection against retrospective criminal laws and repeated trials
Article 8: Equality
Article 9: Prohibition of banishment and freedom of movement
Article 10: Freedom of speech, assembly and association
Article 11: Freedom of religion
Article 12: Rights in respect of education
Article 13: Rights to property
 ARTICLE 5:
LIBERTY OF THE
PERSON
 ARTICLE 5
LIBERTY OF THE PERSON
Article 5 (1): No person shall be deprived of his personal liberty save in accordance
with law.
■ General Rule: it is clearly found under Article 5(1) that every person has his
personal liberty protected unless the law states otherwise (‘save in accordance
with law’).
■ This provision is essential to every individual.
■ Article 5 (1) has two limbs:
i) It upholds the individual’s right to freedom.
ii) it states the situations whereby the deprivation is justified.
■ 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 be implied into statutes and it was applied to the preventive
detention laws under Articles 149 and 150.
 ARTICLE 5
LIBERTY OF THE PERSON

■ Suffian LP in Andrew s/o Tamboosamy v Superintendent of Pudu Prisons

mentioned :
‘…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…’
 ARTICLE 5
LIBERTY OF THE PERSON
■ The phrase ‘save in accordance with law ’ is vague.
■ Two possible interpretations (refer to page 210 of Andrew Harding).
i. ‘law’ – any statute passed by parliament ;
ii. ‘law’ – higher standard than mere statute law – e.g. natural justice.
■ Cases: Ong Ah Chuan ; Che Ani bin Itam ; Lau Kee Ho.
■ Note that the law mentioned could mean any law passed by Parliament,
irrespective of whether such laws are morally right or not.
■ Judges in Malaysia are not willing to question the morality of the laws passed
by Parliament as they feel that they are just ‘concerned with the administration
of the law as is found in the statute books’. --- Ajaib Singh J in PP v Yee Kim
Seng.
■ 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.”
Dato Seri Anwar Ibrahim v PP
■ 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.
■ Haidar FCJ:
“It may be argued that such a constitutional provision would amount to
‘closing the doors of the court’ and is therefore harsh and unjust.”
“Our 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.”
 ARTICLE 5(2)
HABEAS CORPUS
■ Article 5(2) of FC: Where complaint is made to a High Court or any
judge thereof that a person is being unlawfully detained the court
shall inquire into the complaint and, unless satisfied that the
detention is lawful, shall order him to be produced before the court
and release him.
■ Article 5(2) of FC incorporates the common law remedy of habeas
corpus.
■ Habeas corpus: a writ 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.
 ARTICLE 5(2)
HABEAS CORPUS

■ Hishamudin J in Abdul Ghani Haroon (2001):

“…by virtue of clause 2 of Art. 5 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 clause 2 of Art
5 of the Constitution.”

■ Note: Unfortunately, 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.
 ARTICLE 5(2)
HABEAS CORPUS
■ Re Datuk James Wong Kim Min:
“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.”
■ Who bears the burden to prove that the detention is lawful?
■ The Article 5(2) seems to put the burden on the detaining authority.
■ Hishamudin J in Abdul Ghani Haroon:
– “the cardinal principle is that every detention is prima facie unlawful and
the burden of proof is on the detainer to justify it”.
– “A law that affects fundamental rights should not be enforced blindly. It
must be interpreted and carried out as humanely as possible”.
 ARTICLE 5(2)
HABEAS CORPUS
■ The Article 5(2) seems to put the burden to prove that the detention
is lawful on the detaining authority.
Karam Singh v Minister of Home Affairs [1969] 2 MLJ 129
■ 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.
 ARTICLE 5(3)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL

■ Article 5(3) of FC gives an arrested person the right to be informed

of the grounds of arrest and a right to counsel as soon as may be.
■ Article 5(3) of FC has 2 limbs:
(a) Right to know ground of arrest; &
(b) Right to consult and defended by a legal practitioner.

https://www.studocu.com/my/document/universiti-malaya/family-law/article-5-of-fc-none/8782850
 ARTICLE 5(3)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL
First Limb – (a) Right to know ground of arrest:
■ Common Law (Christie v Leachinsky) – affirmed by the Federal Court
in Abdul Rahman v Tan Jo Koh (the appellant claimed damages from
the police due to the false imprisonment).
■ Police are not empowered to arrest for the sole purpose of questioning
or for fishing for evidence.
■ The grounds must already be in existence at the time a person is
arrested.
■ The police must have a reasonable suspicion that a seizable offence
has been committed, is being committed or is about to be committed.
■ The police must communicate the ground of arrest to the arrestee as
quickly as possible.
 ARTICLE 5(3)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL
First Limb – (a) Right to know ground of arrest:
■ ‘As soon as possible’ be defined as ‘as ready as is reasonable in the
circumstances of the case’ in the case of Aminah v Superintendent
of Prison.
■ In Yit Hon Kit v Minister of Home Affair Malaysia, the appellant
was detained under Emergency (Public Order and Prevention of
Crime) Ordinance 1969, the court held that a delay of 57 days in
informing the detainee of the grounds of arrest was held to be
unreasonable.
■ In Kam Teck Soon’s case, 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)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL

■ Right to be informed ground of arrest --- Edgar Joseph J in Chong Kim

Loy held:
– ‘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’.
■ Right to counsel: Ramli bin Salleh v Inspector Yahaya bin Hashim [1973]
1 MLJ 54
– 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.
 ARTICLE 5(3)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL
2nd Limb – (b) Right to consult and defended by a legal practitioner:
■ The 2nd limb of Art 5(3) of FC requires that every arrestee shall be allowed to
consult and be defended by a legal practitioner of his choice.
■ The right to legal representation is available at two stages i.e., first, after the arrest
and second, at the trial or judicial proceedings.
a) After arrest:
■ In Ooi Ah Phua v Officer In-charge Kedah/ Perlis and Hashim Saud v Yahya
Hashim the courts have held that consultation with a lawyer in a police lock-up can
be postponed pending police investigation. According to the courts a balance must
be struck between the entitlement of an arrestee and the duty of the police to
collect evidence.
■ In Theresa Lim Chin Chin v IGP, it was held that in order to show a breach of Art
5(3) of FC, the detainee must show that the police has with bad faith, obstructed a
detainee from exercising his right.
 ARTICLE 5(3)
RIGHT TO BE INFORMED THE GROUND OF ARREST &
RIGHT TO COUNSEL

b) During judicial proceeding:

■ The right to be represented in court, as opposed to consultation
after arrest, was enforced strictly by the court in Saul Hamid v PP.
 ARTICLE 5(4)
Right to be produced before Magistrate within 24 hours

■ Article 5(4): Rights of an arrested person to be produced before the magistrates

within 24 hours.
■ To ensure that the detainee has not been subject to cruelty.
■ Producing of the detainee must not be delayed unreasonably.
■ Note that Art 5(4) does not protect citizens who are arrested under the restricted
residence laws.
– For detention of non-citizens, the authority shall produced them before the
magistrates within 14 days.
■ RE DETENTION OF S. SIVARASA & ORS. (1997) 1 CLJ 471
– The liberty of an individual after arrest is at stake and Article 5(4) of the FC
reposes a heavy judicial duty on a Magistrate to decide whether a person
should be detained or detained further.
 ARTICLE 6:
SLAVERY AND FORCED
LABOUR PROHIBITED
 ARTICLE 6
Prohibition against Slavery and Forced Labour

■ This provision is seldom invoked in recent times because it is

believed that Malaysia is a country where slavery does not exist.
■ But in instances where illegal immigrants or persons are kept in
confinement or in captive for sexual reasons, then Art. 6 may be
relevant.
■ The only exceptions are:
i) law passed by Parliament in conjunction with National Service.
ii) work incidental to imprisonment imposed by the court.
 ARTICLE 7:
PROTECTION AGAINST
RETROSPECTIVE CRIMINAL
LAWS AND REPEATED TRIALS
Art 7(1) of FC – ex post facto law
Art 7(2) of FC – double jeopardy
 Art 7(1) of FC – ex post facto law
■ Retrospective legislation is gravely objectionable as it can criminalise what
was innocent at the time of its commission.
■ This is a fundamental departure from the principle that no one should be
prosecuted, punished or held liable except for a distinct breach of a known,
pre-existing law.
■ Art 7(1) of FC has two limbs which safeguard against backdated criminal
legislations:
– First, a law creating a new penal offence cannot have effect back in
time.
– Second, if the penalty for a criminal offence is enhanced, the law
increasing the penalty cannot be applied retrospectively.
 Art 7(1) of FC – ex post facto law

First limb: creating new offences

■ Art 7(1) of FC – “no person shall be punished for an act or omission
which was not punishable by law when it was done or made.”
■ If parliament creates a new criminal offence, it is prohibited from
giving retrospective effect to the provision.
– Ex post facto criminal laws are forbidden by the FC.
■ In criminal proceedings, the law applicable to the charge must be
the law existing at the time of the commission or omission of the act
and not the law application at the time of the trial or verdict.
■ Pre-enactment conduct remains immune from prosecution under the
new law.
 Art 7(1) of FC – ex post facto law

Second limb: increasing the penalty

■ Art 7(1) of FC: “no person shall suffer greater punishment for an
offence than was prescribed by law at the time it was
committed”.
■ If the penalty for a criminal offence is enhanced, the amending
law imposing greater penalty cannot be applied retrospectively.
■ PP v Mohamed Ismail – held: amendment could not apply to
defendant’s case as it was enacted after the offence had been
committed, or else, it is a violation to Art 7(1) of FC.
Permissible Exceptions
Art 7’s prohibition against retrospectivity applies only to laws that create
new criminal offences or enhance penalties for existing crimes.
1. Law dealing with non-criminal matters can be backdated.
– Loh Kooi Choon v Government of Malaysia
2. Penal law of purely procedural nature can be backdated.
– Lim Sing Hiaw v PP
– Haw Tua Tau v PP
3. Reducing scope of judicial review of a preventive detention order by
retrospective legislation does not violate Art 7(1) of FC.
– PP v Musa
4. Decreasing the penalty for an offence or abolishing an offence can be
backdated.
5. Art 7(1) of FC can be suspended by emergency legislation.
 Art 7(2) of FC – Double Jeopardy
■ Art 7(2) of FC: “a person who has been acquitted or convicted of an
offence shall not be tried again for the same offence…”
■ Gist is that all persons have immunity from repeated trials for the same
offence.
■ Nemo debet bis vexari (a man must not be put twice in peril for the same
offence).
■ An acquittal is a permanent bar to a new trial for the same offence on
same set of facts.
 EXCEPTIONS to Art 7(2) of FC
see: Document of Destiny p 256-259
i. Discharge
– Uthaykumar a/l Ponnusamy v PP
■ A ‘discharge’ does not release or relieve the accused from suspicion.
■ It does not amount to a verdict of ‘not guilty’.
■ It does not bar re-arrest and retrial on the same charge at some future date.
ii. Quashing of earlier trial
– Fan Yew Teng v PP
■ A MP was convicted of sedition.
■ On his application the entire proceeding was quashed due to failure to hold a
mandatory preliminary enquiry.
■ Later, the MP was prosecuted again for the same offence and the court held
that the first trial having been quashed. The retrial does not violate the principle
of autrefois convict.
■ autrefois convict (merriam-webster): a defendant's plea stating that he or she
has already been tried for and convicted of the same offense
 EXCEPTIONS to Art 7(2) of FC
see: Document of Destiny p 256-259

iii. Different Offence

– Nadarajan a/l Somasundram
■ Held: different offence could be based on the same set of
facts as were relied upon in the first trial.
Iv. Technical Errors
– Datuk James Wong Kim Min
■ Plaintiff was detained in West Malaysia under a law that
applied only in Sarawak.
■ A writ of habeas corpus was issued to order his release.
■ But this release did not bar a subsequent detention order
which was properly made out under the correct law.
 Exceptions to Art 7(2) of FC
see: Document of Destiny p 256-259

v. Appeals
– If a person is acquitted and the prosecutor files an appeal under S 5 of Court of
Judicature (Amendment) Act 1976, there is NO double jeopardy.
vi. Preventive Detention
– PP v Musa
– Yeap Hock Seng @ Ah Seng v Minister
vi. Disciplinary Proceedings
– Mohamed Yusoff Samadi v AG
vii. Multiplicity of Proceedings
– Teh Cheng Poh v PP
viii. Re-trial
– PP v Munusamy
■ Appellate criminal courts have power to order a new trial.
– PP v Ooi Khai Chin & Anor
■ Federal Court had jurisdiction to entertain the appeal by prosecution.
Sources:
■ Document of Destiny
■ https://www.freemalaysiatoday.com/category/nation/2020/09/24/prosecut
ion-to-appeal-against-acquittal-of-woman-freed-of-murdering-maid/

■ https://www.freemalaysiatoday.com/category/nation/2020/09/22/prosecut
ion-files-appeal-against-siti-kasims-acquittal/
 Thank you
Next Week – Topic 4: FL [Part 2]