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ARTICLE 5, HASHIM BIN SAUD v YAHAYA BIN HASHIM & ANOR [1977] 2 MLJ 116…
ARTICLE 5
Remedy of Habeas Corpus
If a person has not been detained according to law, the courts will order that the person is brought before the court to be released.
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Article 5 (2) of the FC provides: “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”.
Art 5(2) refers to the common law writ of habeas corpus, as developed in the UK in the 17th century.
The writ requires the detaining authority to bring the person in their custody before the court together with the grounds or reasons for his/her detention.
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If the reasons are ‘not in accordance with law’, the court has the duty to order his/her release forthwith.
The detaining authority has the burden of proving that the detention is in accordance with law (Re Tan Sri Raja) [1988].
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The onus then shifts to the detainee, especially if he/she alleges bad faith on the part of the detaining authority (Karam Singh) [1969]
A person release by the court on an application of habeas corpus can sue the detaining authority for damages for unlawful imprisonment.
RIGHT TO LIFE
Life’ covers ‘the right to live with human dignity’ including a prisoner complaint of torture & necessities of life as adequate nutrition & clothing.
It incorporates all those aspects that are an integral part of life itself and those matters which go to form the quality of life.
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to seek & to continue in public/private service employment subject to removal for good cause to fair procedure (Tan Tek Seng)
Life” includes reputation and deprivation of reputation would be a violation of Article 5(1) as in Lembaga Tatatertib Perkhidmatan v Utra Badi a/l K Perumal [2000] 3 MLJ 281.
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LEGAL REPRESENTATION
The second limb of Art 5(3) requires that every arrestee shall be allowed to consult & be defended by a legal practitioner of his choice.
The right to legal representation is available at 2 stages – (1) after the arrest & (2) at the trial or judicial proceedings.
New subsections (2) to (7) has been introduced into section 28A of CPC on the right to consult a lawyer & required the police officer to inform arrestee that he may communicate with a relative/friend/legal practitioner before commencing any questioning/recording.
The office also required to give a ‘reasonable time’ for consultation to take place within the sight but not within the hearing of the police officer unless reasonably believes (higher rank officer DSP) that the rights are likely to result in evidence being lost or safety of other person compromised.
Art 5(4) requires that an arrestee shall within 24 hours (excluding travel time) be produced before a Magistrate & shall not be further detained without the Magistrate’s authority. (also provided under sections 28 & 117 of CPC).
When a person is arrested, he shall without unreasonable delay produced before Magistrate to get remand order. Unreasonable delay- excludes the time of journey.
Section 28 (1) & 28 (3) of the CPC Act 2006 the deletion of the word ‘court’ allows the accused under remand to be produced before a Magistrate even on holiday/ a weekend. Prior practice, arrested on weekend/public holidays as the holidays are discounted in computing the 24 hours.
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Exception
Not applicable to arrest/ detention under existing law relating to restricted residence.
CHIA KHIN SZE V THE MENTRI BESAR OF SELANGOR [1958] MLJ 105-“…article 5(4) was intended to apply to arrests under the Criminal Procedure Code and not to arrests under the Restricted Residence Enactment and that article 5(3) does not apply to cases under the Enactment…”
For arrest of non-citizen under immigration law, the word ‘unreasonable delay’ is to be substituted to ‘within 14 days’
For arrest for offence under the jurisdiction of syariah court, Magistrate means the judge of Syariah Court
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SEJAHRATUL DURSINA@CHOMEL BTE ABDULLAH V KERAJAAN MALAYSIA [2006] 1 MLJ 405
Federal Court:
“…the writ of habeas corpus is only available to a person who is being physically detained unlawfully. He must be in actual custody. A person who is subjected to a restriction order is not being physically detained, imprisoned or in custody and as such a writ of habeas corpus is not available to him”