At Chambers of Aminahtul Mardiah, we are committed to ensuring that every Malaysian understands their legal rights, especially in moments when it matters most. Getting arrested is often a frightening and confusing experience, especially if it is your first encounter with the law. But the law is clear: no one is above the Constitution, not even the police. Our Constitution, laws, and courts have consistently recognised that every person, whether a citizen or foreigner, deserves to be treated justly under the law. If you are facing arrest or investigation, knowing your rights can protect your freedom.
This article is written to help you understand your rights under the Federal Constitution, the Criminal Procedure Code (CPC).
Whether you are a concerned parent, an informed citizen, or someone dealing with an arrest, we hope this guide empowers you with knowledge and confidence.
1. Am I Being Arrested? Ask This First.
If the police approach you, the very first thing you should ask is:
“Am I under arrest?”
This is crucial. If the answer is “no,” you are not legally required to follow them or go with them unless they are issuing a summons. But if they say “yes,” then the full weight of your constitutional rights kicks in.
If the police officer is not in uniform, they must show their authority card. Take note:
- if the color of the authority card is either BLUE, YELLOW and WHITE, yes, they are indeed police, the color varies merely due to their ranking.
- If the card is red, they are suspended and have no authority to stop you.
If You Are Arrested, Do Not Panic — Know What to Do
When you are arrested:
Stay calm and do not resist. Resisting arrest may result in additional charges or the use of force.
Ask why you are being arrested. If no reason is given, that is unlawful.
Ask which police station you are being taken to. Make a note of this.
Request to make a phone call to inform your family or lawyer. You have a right to do this.
During detention, the police must treat you with basic human dignity. You are entitled to food, clean water, clothing, and access to medical care. Your personal belongings must be recorded and returned upon your release.
2. You Have the Right to Be Told Why You Are Being Arrested
The law is very clear on this. Article 5(3) of the Federal Constitution states that a person who is arrested must be informed of the grounds of their arrest as soon as possible. Section 28A (1) of the Criminal Procedure Code (CPC) reinforces this obligation.
In the case of Ananthagopi Alaguganesan v Menteri Dalam Negeri & Ors [2024] 10 CLJ 539 confirmed that this right is not merely procedural. The Court held that the failure of police to inform a detainee of the reason for his arrest is unconstitutional and renders the arrest unlawful. Importantly, the Court also confirmed that Article 5(3) applies equally to non-citizens. The Constitution protects all persons, not only Malaysians, from arbitrary arrest and detention.
And in a more recent 2024 High Court decision, Tanasilan a/l Nakethiran v Public Prosecutor & Ors [2022] MLJU 1160 the court reaffirmed that if the authorities fail to disclose the grounds of arrest even under laws like SOSMA the resulting detention is unlawful.
In that case, the court ruled that the Detention Order was invalid because the applicant was never properly informed of the reason for his arrest under section 4(2) of SOSMA which is a direct violation of Article 5(3).
These rulings make it clear: if the authorities cannot or do not explain why you are being arrested, your arrest is unconstitutional.
3. You Have the Right to Contact a Lawyer Immediately
Article 5(3) again comes into play here, alongside Section 28A(2) of the CPC, which mandates that an arrested person has the right to:
“consult a legal practitioner of his choice.”
Once you are arrested, you have the right to contact a lawyer of your choice. The arrested person must be given reasonable access to counsel before being questioned. In the case of Public Prosecutor v Phee Boon Poh & Ors [2018] 9 MLJ 3, High Court emphasised that police officers and even Magistrates must give real effect to this right. In that case, a remand order was declared defective because the detainees had not been given a proper chance to consult their lawyers before the hearing.
Although Section 28A(8) CPC provides an exception where the police may delay access to counsel if they “reasonably believe” that such access would interfere with investigations, this is a high threshold.
In short, unless a real and justifiable risk is involved, you cannot be denied access to your lawyer.
4. Police Cannot Hold You Without Charge for More Than 24 Hours
The 24-Hour Rule: You Cannot Be Detained Without Judicial Oversight. Once you are arrested, the police cannot detain you beyond 24 hours unless they obtain an extension from a Magistrate.
This is required by Section 117 of the Criminal Procedure Code and backed by Article 5(4) of the Federal Constitution, which provides that:
“a person who is arrested shall be produced before a magistrate within twenty-four hours and shall not be further detained except with the magistrate’s authority.”
The remand procedure exists to prevent abuse and prolonged detention without oversight.
5. You Have the Right to Remain Silent
When questioned by the police under section 112 of the CPC, you only need to provide your name, IC number, and address. Beyond that, you have the right to remain silent. If a question might incriminate you, you can choose not to answer.
If a statement is recorded, you have the right to review, correct, and understand it before signing. No one should force you to sign a statement that is incorrect or unclear. If you are threatened, pressured, or misled into signing a confession, that statement may be challenged in court as involuntary and inadmissible.
You Are Not Alone, We Are Here to Help
Being arrested is a serious matter, but it is not the end. The law protects your rights and liberties, and as criminal defence lawyers, it is our duty to ensure that these rights are respected. If you or a loved one is facing arrest or police investigation, get in touch with us immediately.
At Chambers of Aminahtul Mardiah, we have experience handling all stages of criminal defence, from arrest to remand hearings, bail applications, mitigation, and trial. We are here to protect your rights and guide you through the legal process with dignity, competence, and compassion.