FACTS OF THE SCENARIO

It was a peaceful Tuesday morning on February 17th, 2024, when Kamal, a prominent

investigative journalist, had just finished conducting a series of interviews for an exposé he was

working on. As he was packing up his equipment, a group of plainclothes officers approached

him, flashing their badges. Without any explanation, they swiftly handcuffed Kamal and ushered

him into an unmarked van parked nearby. Caught off guard, Kamal repeatedly demanded to

know the reason for his arrest, but the officers remained tight-lipped. When he requested to

contact his lawyer, Sandy, a formidable media law attorney, who is a legal practitioner at

Manchester, the officers curtly dismissed his request, claiming it was only a brief detention for

questioning at the police station.

For two terrible days, Kamal was kept isolated in a poorly lit interrogation room, with no

access to legal counsel or updates on his situation. It wasn't until Thursday, February 19th, at

11:00 a.m., that he was finally brought before Magistrate Zahara in a closed hearing. During the

proceedings, the prosecution alleged that Kamal's journalistic investigations had uncovered

sensitive information related to a high-profile murder case, and they sought an additional

seven-day detention order to facilitate further questioning. Outraged by the blatant disregard for

his rights, Kamal immediately informed the court of his intention to file a writ of habeas corpus,

demanding his immediate release from unlawful detention.

 Article 5 of the Federal Constitution, on the liberty of the individual, emphasizes the
fundamental rights associated with due process of law and personal freedom. The basic
principles that protect people from being unlawfully deprived of their lives and personal
freedoms are embodied in this clause. It ensures that the authority to arrest and detain is used
within the bounds of the law by outlining the procedural protections that the authorities must
uphold while detaining an individual. This essay explores the many aspects of this clause,
looking at its clauses and the protections they provide, the outlined legal detention procedures,
and the special circumstances that apply to specific groups of people, like non-citizens.

Several legal issues arise as to the matter relating to the Article 5 of the Federal
Constitution regarding the matter of fundamental liberties of every citizen in Malaysia. The first
legal issue arose on whether Kamal detention by the police officer was lawful.

According to the Article 5(4) of Federal Constitution provided that “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”. A person cannot be
detained more than 24 hours thus it is unlawful detention if it exceeds 24 hours. If the police
want to keep the suspect for more than 24 hours, then he must obtain order form the Magistrate
under Section 117 of Criminal Procedure Code before the period of 24 hours finished. Section
117 of the Criminal Procedure Court stated that where the police officer cannot complete the
investigation within 24 hours, where there are grounds for believing that the accusation or
information is well founded, the arrested person shall be produced in front of the Magistrate.
Besides, Magistrate may allow detention more than 24 hours, on the ground of, first the offence
is being investigated is punishable with 14 years imprisonment or less, detention shall not extend
to more than 7 days total and secondly, the offence punishable with death penalty or
imprisonment more than 14 years, detention shall not exceeding 14 days in total.
 Furthermore, based on the case of Chong Kim Loy v Menteri Dalam Negeri Malaysia
[1989]1, the fact that the accused was arrested under the Section 6(1) of the Dangerous Drugs
(Special Preventive Measures) Act 1985 (‘the Act’) and detained under that law. The detention
was more than 24 hours , however the accused was not brought before the magistrate
immediately. The accused contended that his constitutional right under Article 5(4) has been
violated. It was held that, Initially, he should be produced before the magistrate within 24 hours
of his detention. However, Article 5(4)of the Federal Constitution was inapplicable in this case.
It is because the accused was arrested under Dangerous Drugs (Special Preventive Measures)
Act 1985 (‘the Act’) and that provision was made under article 149. Therefore in this case,
Article 149, protection against crime prejudicial to public order overrides Article 5(4) of the
Federal Constitution.

Referring to the Article 5(4) of the Federal Constitution, Kamal detention was unlawful
because the detention exceeded 24 hours. Furthermore, distinguishing from the case of Chong
Kim Loy v Menteri Dalam Negeri Malaysia, this case has proved that Kamal did not commit
any act based on Article 149 of the Federal Constitution. Thus, Kamal has the right to uphold his
right to be produced before Magistrate within 24 hours of arrest, moreover his detention was not
listed under Article 149 that could overruled Article 5(4) of the Federal Constitution.

Next legal issue arise is Whether Kamal has the right to be informed either in writing or
orally due to his detention under Article 5(3) of the Federal Constitution. This event occur
when he demanded to know the reason for his arrest but the officers remained tight-lipped.

Based on Article 5(3) of the Federal Constitution provided that, where 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. Moreover, according to the
Section 28A(1) of Criminal Procedure Code relating on the matter of Rights of person
arrested, stated that a person arrested without a warrant, shall be informed as soon as may be of
the grounds of his arrest by the police officer making the arrest. Besides, according to the case of
Shabaan & Ors v. Chong Fook Kam & Anor2, Lord Devlin has quoted in his judgement stated
that “An arrest occurs when a police officer states in terms that he is arresting or when he uses

1
3 MLJ 121
2
[1969]
force to restrain the individual concerned. ​It occurs also when by words or conduct he makes it
clear that he will, if necessary, use force to prevent the individual from going where he may want
to go. ​It does not occur when he stops an individual to make inquiries.”

Next, based on the case of Re Pe Long @ Jimmy & Ors; Pe Long & Ors V Menteri
Hal Ehwal Dalam Negeri Malaysia & Ors3, the fact that three people were arrested under
Emergency, Public Order, and Prevention of Crime Ordinance 1969, claiming they were not
informed of their arrest's reason, violating their right under Article 5(3). The inspector denied
arrest, but another police officer claimed they were arrested. It was held that, A person arrested
without being told the reason of his arrest is entitled to resist the arrest and any force used to
overcome the resistance would amount to an assault. However, in this case the evidence
presented showed that the detainees were informed by the officers who arrested them of the
grounds of the arrest. Furthermore, in the case of Abdul Rahman v Tan Jo Koh [1968], The
respondent suspected the appellant of having a hidden weapon and asked him to come to the
police station. When the appellant refused, he was arrested. The appellant resisted, and the
respondent had to drag him to the police station. During a search witnessed by two police
constables, a knife was found in the fold of the appellant's sarong. However, the appellant alleges
that the respondent grabbed him by the shirt collar and sarong, causing embarrassment as he
wasn't wearing underwear. The appellant also claimed the respondent punched him in the
stomach. The court held that, an accused person is entitled to know immediately upon arrest
what offence he is alleged to have committed. If he is not informed of the ground of arrest, he
can resist the arrest.

In this scenario, Kamal had been swiftly handcuffed without any explanation by a group
of plainclothes officers who approached him and flashing their badges, and had been ushered
into an unmarked van parked nearby. Additionally, Kamal repeatedly demanded to know the
reason for his arrest, but the officers remained tight-lipped.In short, Kamal has the right to be
informed on the ground of arrest as an arrested person under Article 5(3), and this right has been
violated.

3
[1976] 2 MLJ 133
 The third legal issue that arose is whether Kamal’s constitutional right to consult and be
defended by a legal practitioner has been infringed since, when he requested to contact his
lawyer, Sandy, a formidable media law attorney who is a legal practitioner in Manchester, the
officers curtly dismissed his request, claiming that it was only a brief detention for questioning at
the police station.

Referring to Article 5(3) of the Federal Constitution, it is stated that where a person is
arrested, he shall be informed as soon as possible of the grounds of his arrest and shall be
allowed to consult and be defended by a legal practitioner of his choice. This means that the
arrested person has the right to consult and be defended by a legal practitioner. They are entitled
to have a lawyer represent them in legal proceedings, including during interrogations and court
hearings, to ensure that they can have an advocate to argue on their behalf, challenge the legality
of the arrest, and provide a defense against any charges brought against them.

Several provisions under the Criminal Procedure Code Act 593 deal with this matter.
Firstly, Section 28A(2)(b) of the Criminal Procedure Code provides that a police officer shall,
before questioning or recording any statement from the person arrested, inform the person that he
may communicate and consult with a legal practitioner of his choice. Section 28A(3) of the
Criminal Procedure Code mentions that where the arrested person wishes to communicate or
attempt to communicate with a legal practitioner of his choice, the police officer shall, as soon as
possible, allow the arrested person to do so. Thirdly, Section 28A(4) of the Criminal Procedure
Code provides that, where the person arrested has requested for a legal practitioner to be
consulted, the police officer shall allow a reasonable time for the legal practitioner to be present
to meet the person arrested at his place of detention and for the consultation to take place. Next,
Section 28A(5) of the Criminal Procedure Code mentions that the consultation shall be within
the sight of a police officer and in circumstances, in so far as practicable, where their
communication will not be overheard, and lastly, Section 28A(7) of the Criminal Procedure
Code provides that the police officer shall provide reasonable facilities for the communication
and consultation under this section, and all such facilities provided shall be free of charge.

Nevertheless, even though Article 5(3) of the Federal Constitution provides the right of
the arrested person to consult and to be defended by the lawyer of his or her choice, the matter is
whether the right under Article 5(3) includes the right to be defended by a legal
practitioner of one’s choice, including a lawyer from overseas.

Referring to the case of D' Cruz v Attorney-General, Malaysia & Anor4, the Applicant
in this case was charged with an offence under the Prevention of Corruption Act, 1961. He
instructed Mr. C.K.G. Pillay as his solicitor but wanted Dato David Marshall to act for him due
to the complexity of the case. The Attorney General and Bar Council objected, arguing that
Marshall did not have the necessary qualifications. The counsel argued the right to consult and
be defended by a legal practitioner of one's choice, as provided by Article 5(3) of the
Constitution. The court held then the right given under Article 5 cannot be read as extending to
any legal practitioner anywhere in the world, regardless whether or not he is qualified to practice
in Malaysia The right given to the arrested person in Article 5 must be limited to the choice of
legal practitioners who are qualified to practice under our law.

Moreover, in order to determine the legal practitioners who are qualified to practice under
the law of Malaysia, the Legal Profession Act 1976 provides some provisions related to
qualified persons. According to Section 11(1) paragraphs (c) and (d) of the Legal Profession
Act 1976, subject to Section 14, a qualified person may be admitted as an advocate and solicitor
if he is either a Federal citizen or a permanent resident of Malaysia and has satisfactorily served
in Malaysia the prescribed period of pupillage for qualified persons. Apart from that, Section
18(1) clauses (a) and (b) outline several conditions that must be met for a non-citizen or
non-permanent resident to be admitted to practice law for a specific case, which are that the
person must be eligible to practice as an advocate and solicitor in Malaysia if they were a citizen
or permanent resident. This means that the individual must meet the professional qualifications
and standards that Malaysian advocates and solicitors are required to meet. Additionally, the
court must be satisfied that the person possesses special qualifications or experience that are not
available among the local legal practitioners. This requirement ensures that the admission is
justified by a genuine need for expertise that cannot be otherwise fulfilled within the country.
Furthermore, the person must be instructed by a Malaysian advocate and solicitor for the specific
case. Other than Section 11 and Section 18 of the Legal Profession Act 1976, there are also other
provisions that deal with the matter of qualified persons under the same Act, which are Section

4
[1971] 2 MLJ 130
10, the Admission of Advocates and Solicitors, and Part IIA of the Act, which pertains to the
Special Provisions relating to Admission of Advocates and Solicitors. The provisions related to
this Part are Section 28A, which provides the Attorney General's power to issue Special
Admission Certificates, and Section 28B, regarding the admission and enrolment as an advocate
and solicitor of a person issued with a Special Admission Certificate.

Applying the principles referred to under the case law mentioned above as well as the
provisions, Kamal cannot be defended by Sandy, who is a legal practitioner outside Malaysia,
which is Manchester, because she does not have the necessary qualifications. Apart from that, the
right given to the arrested person in Article 5(3) is limited to the choice of legal practitioners
who are qualified to practice under the law of Malaysia. However, if Kamal wants to have a
consultation or wants to be defended by a lawyer of his choice, he needs to choose a lawyer who
practices under Malaysian law and who has the necessary qualifications as provided by the Legal
Profession Act 1976.

The last legal issue to determine is whether Kamal on the reason of his detention has the
right to apply for writ of habeas corpus as he was dissatisfied with the unexplained detention? In
order to determine this issue, we need to refer to Article 5(2) of the Federal Constitution of
Malaysia whereby it stated that if a complaint is made to High Court or any judge that a person is
being detained unlawfully, the court shall inquire into that complaint and unless satisfied that the
detention is lawful, shall order him to be produced before the court and he shall be released. This
article shall be read together with article 5(1) that no person shall be deprived of his life or
personal liberty in accordance with law. This indicates that if a person is being detained
unlawfully and he or she made a complaint, then unless the court can prove that the detention is
lawful, the person shall be released.

In the case of Ho Kim Long V Ketua Polis Negara Malaysia & Ors And Another
Case5, the judge in this case had quoted the definition of habeas corpus that had been laid down
by the judge in Thomas John Barnado v Ford, Gossage’s case6 which defined habeas corpus as a
Latin word which means ‘to have a body’. The writ of habeas corpus only available to the person
who being detain unlawfully. In Malaysia, as there was no provision that had mentioned clearly

5
[2021] MLJU 21
6
[1982] AC 326
regarding the writ of habeas corpus, Article 5(2) of Federal Constitution of Malaysia shall be the
legal basis for the writ of habeas corpus. Choor Singh J in Re Onkar Shrian7 had mentioned
that whenever the personal freedom of an individual is wrongly interefered, the release of that
person from an illegal detention may be caused by habeas corpus.

Besides, in Abdul Ghani Haron v Ketua Polis Negara & Anor Application8 the court
mentioned that the right of habeas corpus is a constitutional right and it is the right of who being
detain to be present in the hearing. The wording of Article 5(2) had made it clear that the judge
should order the detainee to be released after being satisfied that detention was unlawful in the
eyes of law. Therefore, it can be said that, the burden of proof hold by the detaining authority to
prove that the person was being detain according to law and if failed, the detention is considered
as unlawful.

In order for someone to apply for the writ of habeas corpus, there are 3 grounds that the
detained person can apply for habeas corpus. First, the ground of illegality. The person must
prove that the detention is illegal in terms of substantive ultra vires. In the case of Re James
Wong Kim Min9, as in this case, the order of detention was made when the person was in
Peninsular Malaysia. However, it was found out that the order was made under the law which
only applied in Sarawak. In was held by the court that the habeas corpus was granted to the
person who was being detained. The order of detention was invalid due to the lack of jurisdiction
of the law. The next ground is the ground of irrationality. Under this ground, the detention must
have involve any abuse of power, illegality of purpose, bad faith or unreasonableness.

In Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals10 ,
whereby in this case the appellants challenged the High Court judge's decision to deny their
application for a writ of habeas corpus, which would have secured their release. The appellants,
who were activists associated with the 'reformasi' movement, had been arrested and detained
under Section 73 of the Internal Security Act 1960 (ISA). According to the respondent's
affidavit, the reason for their detention was that they were organizing a massive street

7
[1970] 1 MLJ 28
8
[2001] 2 CLJ 709
9
[1975] 2 MLJ 244
10
[2002] 4 MLJ 449
demonstration involving around 50,000 people, scheduled to take place in Kuala Lumpur on
April 14, 2001.Mohamed Dzalddin CJ in giving the judgement decided that an order of detention
was mala fide if it was made for a “collateral” or “ulterior” purpose, that is, a purpose other than
what the legislature had in view in passing the law of preventive detention”. The onus was on the
appellants to prove mala fide on the part of the detaining authority.

The last ground would be the ground of procedural impropriety which is the authority did
not comply to the procedure of detention that was laid by the law and the procedure is found to
be vital. Applying all rules mentioned into our scenario, since Kamal was not informed clearly
regarding the grounds of his detention, Kamal has the valid right under the article 5(2) to apply
for the writ of habeas corpus for him to be released. As mentioned in Re Onkar Shrian11, that
the basis of jurisdiction for habeas corpus is illegal detention, then Kamal’s detention had been
proved to have the legal basis of habeas corpus. Therefore, Kamal’s detention fell under the
ground of irrationality because no ground of detention was justified and it was considered
unreasonable.

In conclusion, Kamal had been detained unlawfully because he was being detained more
than 24 hours and not being produced before the magistrate as it contradicts with the rights
mentioned under article 5(3) of Federal Constitution. Not only that, Kamal’s constitutional right
under article 5 had been infringed when he was not being told the reason or ground of his
detention and he was also not allowed to consult or seek for legal representative. Last but not
least, Kamal also has the right to apply for the writ of habeas corpus when it had been proved
that he was being detained unlawfully and his rights had been infringed.

11
[1970] 1 MLJ 28
BIBLIOGRAPHY

Section 28A(1) of Criminal Procedure Code

Section 117 of Criminal Procedure Code

Section 28A(2)(b) Criminal Procedure Code

Section 28A(3) Criminal Procedure Code

Section 28A(4) Criminal Procedure Code

Section 28A(5) Criminal Procedure Code

Section 28A(7) Criminal Procedure Code

Section 11(1) paragraphs (c) and (d) Legal Profession Act

Section 18(1) clauses (a) and (b) Legal Profession Act

Section 28A Legal Profession Act

Section 28B Legal Profession Act

Chong Kim Loy v Menteri Dalam Negeri Malaysia [1989] 3 MLJ 121

Shabaan & Ors v. Chong Fook Kam & Anor [1969]

Re Pe Long @ Jimmy & Ors; Pe Long & Ors V Menteri Hal Ehwal Dalam Negeri Malaysia &
Ors [1976] 2 MLJ 133

D' Cruz v Attorney-General, Malaysia & Anor [1971] 2 MLJ 130

Ho Kim Long V Ketua Polis Negara Malaysia & Ors And Another Case [2021] MLJU 21

Thomas John Barnado v Ford, Gossage’s case [1982] AC 326

Re Onkar Shrian [1970] 1 MLJ 28

Re James Wong Kim Min [1975] 2 MLJ 244

Abdul Ghani Haron v Ketua Polis Negara & Anor Application [2001] 2 CLJ 709

Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449