The Penal Code is the primary legislation that consists of 511 sections that encompass the wide range of criminal offences that are punishable in the court of law in Malaysia. Other than the Penal code there are specific legislations like the Dangerous Drugs Act 1952, Firearms (increased Penalties) Act 1971, Essential (Security Cases) Regulations 1975 to govern special areas of the criminal offences with its own arrest, bail and sentencing procedures.
Except for these specific Acts mentioned above, generally the Criminal Procedure Code (CPC) was promulgated to regulate the administration of the criminal justice or procedure in Malaysia. The CPC inter alia provides the ways in which an arrest, search, police investigations and trials are to be conducted throughout Malaysia.
It has to be noted that the basic rights of an individual are enumerated in the Federal Constitution of Malaysia. As such there are essential procedures in law that strikes the balance between protection of society against criminals as well as to uphold the maxim “ that one is innocent until proven guilty”.
Accordingly, there are basic fundamental rules and procedures that are to be adhered to in restraining a potential offender and amongst other things the following are the primary constitutional and or international rights of an individual:-
- A right to be informed of the ground of his arrest and the right to representation upon arrest (Article 5 clause (3) of the Federal Constitution);
- A right to be produced before court within 24 hours of arrest (Section 117 of CPC);
- The right to be informed whether the offence is bailable or non-bailable;
- Search is to be carried out on the offender and premises within the purview of the criminal rules and regulations;
- Any restraint of the arrested individual should be carried out within the purview of the Police Act 1967 and general restraint procedure of the CPC and the Lock up Rules;
- Promises, which form the consideration or part, of the. Considerations for each other are called reciprocal promises;
- An agreement not enforceable by law is said to be void;
Following from the above it is evident that an arrested person must be given opportunity to defend himself following the maxim nemo judex in causa sua potest and audi altrem partem. Further, at all times a person who is charged is also entitled to the defence of autrefois aquit and autrefois convict at all times i.e. an individual can be charged and convicted only once for a crime.