Know Your Rights When Arrested in Malaysia
Understanding your constitutional protections during police arrest, remand and questioning.
Published: 15 March 2025 · Criminal Law
Your Constitutional Right to Liberty
Article 5 of the Federal Constitution guarantees that no person shall be deprived of their personal liberty except in accordance with law. What this means in practice is that every arrest must have a legal basis, whether under the Criminal Procedure Code, the Dangerous Drugs Act 1952, or any other written law. If a police officer cannot tell you the specific section under which you are being arrested, you have the right to ask. A failure to inform the arrestee of the grounds of arrest may render the detention unlawful, as the courts have repeatedly affirmed in decisions going back to the landmark case of Ooi Ah Phua v Officer-in-Charge Criminal Investigation.
What Happens During an Arrest
When a person is arrested in Malaysia, the police have the power to take them to a police station for investigation. Under Section 28 of the Criminal Procedure Code, the arresting officer must produce the arrested person before a Magistrate within 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to the court. If the police wish to detain the person beyond this 24-hour window, they must apply for a remand order from a Magistrate under Section 117 of the CPC. The Magistrate has the discretion to grant or refuse the remand application, and the maximum remand period depends on the severity of the offence under investigation.
Your Right to Remain Silent
One of the most important safeguards available to an arrested person in Malaysia is the right against self-incrimination, rooted in Article 5(1) of the Federal Constitution. In practice, this means that you cannot be compelled to answer questions that might incriminate yourself. Section 112 of the Criminal Procedure Code allows a police officer to examine any person supposed to be acquainted with the facts of the case, and the person is legally bound to state the truth. However, you have the right to remain silent when your answer may expose you to a criminal charge. Before recording your statement, the officer is required to inform you of this right. Many people, out of fear or confusion, waive this right without realising the consequences. A statement given voluntarily to the police can later be used in court, and the prosecution may rely on it to establish elements of the offence.
The Right to Legal Representation
Article 5(3) of the Federal Constitution expressly provides that where a person is arrested, they shall be informed as soon as may be of the grounds of their arrest and shall be allowed to consult and be defended by a legal practitioner of their choice. This is not a mere formality. The police must inform you of this right promptly, and they must allow you reasonable access to a lawyer. In the case of Nadasan Nada v Public Prosecutor, the court emphasised that the right to counsel is a fundamental safeguard against abuse of police power. If you are arrested, you should ask to contact a lawyer immediately. The police cannot prevent you from seeing your lawyer, although they may restrict access during specific periods of active interrogation. Having a lawyer present during the investigation stage can make a material difference to the outcome of your case, particularly in serious offences where the statements recorded at this stage form a critical part of the prosecution evidence.
Remand Proceedings and Bail
Not all offences are bailable in Malaysia. Under the Criminal Procedure Code, bailable offences are those where bail is a matter of right, while non-bailable offences leave the grant of bail to the court's discretion. For seizable offences carrying the death penalty or life imprisonment, bail is generally not available, though the court may still grant it under exceptional circumstances. In Johor Bahru, remand hearings are conducted at the Johor Bahru Magistrates' Court, and a criminal defence lawyer can make representations on your behalf during these proceedings. Legal representation at the remand stage is critical because the length and conditions of detention can directly affect the quality of the investigation and the evidence ultimately gathered by the prosecution.
If you or a family member has been arrested, contact Messrs S.K. Song immediately. Our criminal defence team has decades of experience representing individuals at every stage of the criminal process, from the moment of arrest through to trial and appeal. Call our 24-hour line at 07-334 2188.