NOVEMBER 29 — Article 5(3) of the Federal Constitution guarantees to an arrested person at least three rights, namely –

(1)    the right to be informed of the ground of his arrest;

(2)    The right to consult a legal counsel of his choice; and

(3)    The right to be defended by a legal counsel of his choice.

However, those rights will have to be balanced by the right of the police to carry out their investigations unimpeded.

Fifty years ago in Ooi Ah Phua v Officer in Charge Criminal Investigation, Kedah/Perlis [1975] Lord President Suffian said:

“A balance has to be struck between the [rights] of the arrested person … on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them.

“The interest of justice is as important as the interest of arrested persons and it is well-known that criminal dements are deterred most of all by the certainty of detection, arrest and punishment.”

The first right is in the first limb of Article 5(3). The arrested person has the right to be informed “as soon as may be” of the grounds of arrest. The phrase “as soon as may be’” denotes that the right operates forthwith and that the authorities making the arrest shall “as soon as possible” inform the person the grounds of his arrest.

In other words, the accused should be informed as soon as possible or in the shortest practicable time of the grounds of his arrest. 

This is to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against the accused so that he can exercise the second and third rights, namely, of consulting a legal counsel of his choice and to be defended by him. (See the judgment of Justice Grover in the Indian case of Re Mahdu Limaye [1969])

The second and third rights are in the second limb of Article 5(3). Significantly, the limb does not direct the time when this right begins.

The significance was not lost on Justice Syed Othman, who in PP v Mah Chuen Lim said as follows:

“The Constitution does not prescribe the time within which the arrested person shall be allowed to consult counsel. But section 38 of the Interpretation and General Clauses Ordinance, 1948, which applies to the Constitution (see Eleventh Schedule) reads:

“When no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed and as often as the prescribed occasion arises. What is ‘convenient speed’ would depend on the circumstances of each particular case. I do not think it is desirable to lay down the speed convenient to all cases.”

The rights of the arrested person should not be exercised to the detriment of investigation. The authorities concerned must, however, exercise their discretion in good faith to enable the person arrested to exercise his constitutional rights.

The end of justice is justice, and the spirit of justice is fairness – to both the arrested person and the authorities.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.