- You must be told why you are arrested, and you may consult a lawyer of your choice (Federal Constitution, Art 5(3)).
- You must be brought before a magistrate within 24 hours (Art 5(4)).
- You may ask for your family to be told where you are (CPC s28A).
- You may refuse to answer questions that would incriminate you (CPC s112).
- A woman may only be searched by a woman.
- YBGK gives free legal help at the police station and remand stage.
Where your rights come from
Article 5 of the Federal Constitution (Perlembagaan Persekutuan) protects personal liberty. If you are arrested:
- you must be told the grounds of your arrest as soon as possible (Art 5(3));
- you have the right to consult and be defended by a lawyer of your choice (Art 5(3));
- you must be brought before a magistrate (majistret) without unreasonable delay, and in any case within 24 hours (not counting travel time). You cannot be held longer without the magistrate's authority (Art 5(4)).
The Criminal Procedure Code (Kanun Tatacara Jenayah) puts these rights into practice, mainly in section 28A, which was added in 2006.
Your rights under CPC section 28A
- Being told why. The arresting officer must tell you the grounds of your arrest.
- Contacting family or a friend. You may ask to have a relative or friend told that you have been arrested and where you are being held.
- Contacting a lawyer. You may communicate with, and consult, a lawyer of your choice. The consultation happens within sight of the police but out of their hearing.
- Questioning waits. If you ask for a lawyer, the police should generally give you a reasonable time for the lawyer to arrive and for the consultation, before they question you or record your statement.
Exceptions. A senior officer (Deputy Superintendent or above) may delay these rights if they reasonably believe that allowing them would help an accomplice escape, lead to evidence being hidden or destroyed or a witness intimidated, or that questioning is so urgent it cannot wait because of other people's safety. The officer must record the reasons in writing.
Statements to the police (CPC section 112)
Police may record your statement (percakapan) under section 112. You must answer questions about the case and tell the truth. But you may refuse to answer any question whose answer could expose you to a criminal charge, penalty or forfeiture: the privilege against self-incrimination. The officer should explain this to you first.
- Read the statement carefully before signing. Ask for corrections if anything is wrong.
- Do not sign anything you do not understand. You may ask for an interpreter.
- Anything you say may be used in later proceedings, so get legal advice first where you can.
Body searches
- A woman may be searched only by another woman, with strict regard to decency (CPC s 19(2)).
- Body searches must follow the procedure set out in the Fourth Schedule of the CPC (CPC s 20A). The Schedule covers different levels of search, including more intrusive ones that have stricter conditions.
- An arrested person must not be restrained more than is necessary to prevent escape (CPC s 19(1)).
- Police may take items found on you into safe custody. Ask for a list of what was taken.
Remand and free legal help
If the police want to hold you beyond 24 hours, they must bring you before a magistrate and ask for a remand (reman) order. The maximum is 7 or 14 days depending on the offence (see The criminal process). You can ask to be represented, and you can ask the magistrate for fewer days or for release.
The National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan, YBGK) funds lawyers to help Malaysians at the police station, at remand hearings and when they are charged. This help is free of charge regardless of your income at those early stages. Contact the Bar Council Legal Aid Centre in your state. Details are on Getting legal help.
What the police can and cannot do
| Police can | Police cannot |
|---|---|
| Arrest without a warrant for seizable offences, or where the law allows | Hold you beyond 24 hours without a magistrate's order |
| Search you and take items that may be evidence | Use more restraint than necessary, or have a man search a woman |
| Question you and record your statement | Force you to answer questions that would incriminate you |
| In limited cases, delay your access to a lawyer or family, with written reasons | Refuse these rights as a routine practice |
If you believe your rights were breached, write down names, ranks, badge numbers, times and places as soon as you can, and tell your lawyer. Complaints about police misconduct can also be made to the Independent Police Conduct Commission or to SUHAKAM (the Human Rights Commission of Malaysia).
Practical checklist
- Stay calm. Do not resist or run, even if you believe the arrest is wrong.
- Ask: "Why am I being arrested?" and "Where are you taking me?"
- Ask to inform a family member or friend, and to contact a lawyer.
- Say clearly that you want a lawyer before giving a statement.
- Do not sign a statement you have not read or do not understand.
- Note the names and ranks of officers, and the police station.
- Ask for a list of any items taken from you.
- At the remand hearing, ask for a lawyer (YBGK can help) and tell the magistrate about any ill-treatment or medical needs.
- Family members: go to the police station or the court with the person's identity details, and contact the state Legal Aid Centre.
Children
Special rules apply when a child (under 18) is arrested. These include informing a parent or guardian and dealing with the case in the Court for Children under the Child Act 2001. Get legal help immediately.
Laws cited on this page
| Act 593 | Criminal Procedure Code · Kanun Tatacara Jenayah | Official text |
| Act 611 | Child Act 2001 · Akta Kanak-Kanak 2001 | Official text |
Listed automatically from the federal Acts named on this page. All laws of Malaysia →
Sources
- Federal Constitution, Article 5
- Criminal Procedure Code (Act 593), ss 19, 20, 20A (text)
- Mondaq - Rights of an arrested person in Malaysia (s28A)
- Malaysian Bar - About YBGK
- Malay Mail - s112 CPC and questioning
- SUHAKAM
Related
The criminal process: from police report to verdictGetting legal helpCourts and their powersHow Malaysian law works