Professional Documents
Culture Documents
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
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)
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