WITHERING AWAY RIGHTS OF THE ARRESTED

The recent Practice Direction of the Chief Justice Bil 3/2003 may cause the further withering away of the constitutionally guaranteed rights of the arrested person as stated in Art. 5(3) and Art 5(4) of the Federal Constitution.

Article 5(3) provides that “Where a person is arrested he shall be informed as soon as may be of the grounds of arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”  Whilst Article 5(4) provides that “Where a person is arrested and not released he shall without reasonable delay, and in any case within twenty four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.

Section 117 of the Criminal Procedure Code reiterates this production before a magistrate within 24 hours. This reason for the production before a Magistrate is for the purposes of applying for a further remand order for the purposes of completing police investigations. Section 117 until 120 also deals with the procedure and requirements that need to be satisfied before a Magistrate grants a further remand order.

It must be remembered that in Malaysia, a person arrested and detained by the police have got NO right to one phone call, and hence there is no way a person arrested can contact his lawyer, his family and/or his friends. There is also no right of access to lawyer and family when the person has been arrested and detained.  There are times that no9 one - not his lawyer, not his family, not his employer - that will know that a person has been arrested and detained by the police. One must not forget that in Employment Law absence for two(2) days tantamount to a breach of the employment contract by the employee and the employer may be able to terminate the employment. 14 days in police custody (worse case scenario) without having access to employer for a person no more than a suspect may mean a serious violation of rights.

In the Federal Court  case of Ooi Ah Phua -v- Officer-in-charge Criminal Investigation, Kedah/Perlis (1975) 2 MLJ 198, Yang Amat Arif Sufian (Lord President) in his judgment had this to say “With respect, I agree that the right of an arrested person to consult his lawyer begins from the moment of arrest, but I am of the opinion that that right cannot be exercised immediately after arrest. A balance must be struck between the right of the arrested person to consult his lawyer on the one hand and on the other hand the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them.” In short, this decision allowed the police the deny (or rather stay) the arrested person’s constitutionally guaranteed right whilst during police detention.

This Federal Court decision have been relied upon by the police, and the result was that nowadays the right of the arrested person to have access to a lawyer has been  generally (if not completely) denied whist the arrested person is in police custody.  Thereafter, the only time that an arrested person have access to his lawyer, and the right to be represented by a lawyer was when the arrested person was brought before a Magistrate for a  remand application under section 117 Criminal Procedure Code.

In the case Ooi Ah Phua, Ooi was arrested of suspicion of being part of a gang of armed robbers. It is my humble belief that denial of the right of lawyer should have been restricted to the facts of that case, and to cases of similar nature. But the reality is that the right to a lawyer have been denied to almost every person arrested and detained by the police.

One Federal Court decision has withered away the constitutionally guaranteed rights of the arrested person while in detention. The fear now is that another Practice Direction by the Chief Justice in 2003 will further wither away whatever remaining of that right of access to a lawyer guaranteed to an arrested person.

Practice Direction of the Chief Justice Bil 3/2003

Practice Direction of the Chief Justice Bil 3/2003 , which became effective in 2 January 2003, is said to be issued, amongst others,  to ensure the increased adherence to the requirements of section 117 Criminal Procedure Code during remand applications throughout Malaysia.

Item 2(iii) of the said Practice Direction  states  that if the police is able to discharge the burden of proving the arrested person’s right to be represented by a lawyer  during a remand hearing would interfere with police investigations, then the right of the arrested person  to a lawyer will be denied. From the arrangement of words in the said Practice Direction, it seems that even during the period the police is called to discharge this burden of proof, the arrested person will not be represented by a lawyer. Without a lawyer, the arrested person will not be able to make any submissions in reply to the police’s application to deprive him/her of the constitutionally guaranteed right  to consult and be defended by a lawyer as soon as possible.

Item 2(iii) of the said Practice Direction further states that the arrested person will be asked whether he wants to be represented by a lawyer or not. In Malaysia, a person arrested has NO  right to one phone call, and  NO  right of access to family, friends or lawyer after he is arrested. This would mean that the said arrested person will have no way of knowing whether his family or friends have already retained a lawyer or not for him. Hence, when the question is asked as to whether he wishes to be represented by a lawyer, in ignorance he will only say that he does not want to be represented by a lawyer.

Item 2(iii)(a) also states that if the accused person elects to be represented by a lawyer, then the Magistrate should give a short remand order for the arrested person to be given an opportunity to retain a lawyer. The word “short remand” is dangerously not defined, and this could mean 1 day, 3 days or even more.

From the arrangement of the items in the said Practice Direction, this “short remand” is for the arrested person to retain a lawyer, and this “short remand” order is to be given without any considerations to the other provisions in law governing an application for remand by the police for the purposes of completing police investigations.

Practice Direction does not have the force of law, but if left unchecked it may wither away whatever remaining rights of an arrested person to a lawyer.

Human Rights Commission(SUHAKAM) - Hak Tahanan Reman

The Malaysian Human Rights Commission(SUHAKAM) in its Report On Rights of Those Arrested and Detained (Hak Tahanan Reman) dated December 2001, amongst others, recommends that the person arrested should be given right of access to a lawyer as soon as he is arrested by the police. The fact that this report was prepared, amongst others, by Puan Mehrun Siraj, the former dean of the Universiti Kebangsaan Malaysia Law Faculty, who was then a Human Rights Commissioner, should also factor in the weight to be attached to this report.

SUHAKAM recommends that the right of the arrested person to access to a lawyer as provided for in Article 5(3) be given its full effect. In this report, SUHAKAM also recommends that the Ooi Ah Phua and the Hashim bin Saud(1977) 2 MLJ 116  decisons be immediately reviewed.

In that report, SUHAKAM also provides elaborate recommendations for reform. The report amongst others also calls for the recognition and respect of the right of access of the arrested persons to their family members as provided for in Rule 22(1) of the Lock-Up Rules 1953.

This comprehensive SUHAKAM report that gives very good recommendations should be immediately studied by the Judiciary, the Attorney General’s chambers , the Bar Council and all other relevant persons/bodies and laws, regulations, guidelines and Practice Directions (amongst others)  should be formulated to give effect to these recommendations of our Malaysian Human Rights Commission.

The Bar Council

The Malaysian Bar has also been very concerned with the rights of arrested persons, and have amongst others, called for the giving of the right of ONE phone call to arrested person.

This concern for  rights, have also led to the setting up of the Dock Brief Program whose primary objects is to provide legal advice, as to elections available when the charges are read, and to also advice the arrested persons based on the facts of the case (as provided by these persons) whether the said person have a possible Defence to the charges levied against them.

In 1998, when 100s of persons were arrested for illegal assembly, the Malaysian Bar through the Legal Aid Centre was also there to represent persons arrested when they were brought for remand applications by the police. Similarly, when 100s of persons were arrested in Johore in connection with the death of a senior police officer, the Bar has been there.

But unfortunately (to the best of my knowledge), the Bar Council and/or the State Committees have to date still not come up to address the Practice Direction of the Chief Justice Bil 3/2003 and its effect of further withering away rights of arrested person as guaranteed under Art. 5(3) of the Federal Constitution.

The importance of this right to cousel

Malaysians generally are persons ignorant of their rights on being arrested by the police. They are unaware of their right to not give any statement when arrested. They are unaware of their rights when they come before a Magistrate for an application for remand under section 117.

From my personal observations, many a time persons who come before a Magistrate in a remand application, if they say anything, will only state that they are not guilty and/or ask for the magistrate to order their release. This unfortunately is not the concern of the remand application. They also do not bring to notice of the Magistrate any threats, assaults and even battery inflicted on them by the police - where all this is very relevant if any section 113 cautioned statement is to be later challenged in court. The law is clear that such section 113 statements must not be a result of threats and promises. Police violence, once difficult to prove and/or be believed, after the Anwar Ibrahim case is acknowledged as true. In that case it was the then Inspector General of Police who was charged with that offence.

Hence, without proper legal advice, consultation and representation, arrested person’s rights get violated. Statements amounting to confessions (not always true) are given based on promises, assurance, threats, etc are given sometimes. The arrested person at times unnecessarily land themselves in a situation where by their own words, they are convicted and sentenced. This is a gross injustice, and any person arrested must be fully aware of their rights in law and more important their rights to a lawyer.

SUHAKAM in its 2001 Report also recommends that the arrested person shall be given information about the procedures after arrest, their rights to counsel, their rights with regard to statements taken, etc..  The Report is quite comprehensive, and I believe the Malaysian Bar and all other persons concerned with Human Rights should study this Report and join SUHAKAM in supporting these recomendations.

With regard to Remand Proceedings, sometimes one forgets that the police can also bring the arrested persons before Second Class Magistrates which include District Officers and Assistant District Officers. From my personal experience, one of my clients was brought for the third remand application before an Assistant District Officer, who without even waiting for counsel to be present granted a 3 day remand order. When confronted later, he agreed that he was not even aware that the said arrested persons had already been remanded for a period of 10 days, and that this was indeed the third remand application by the police. Of course, he also  did not note that there was an obvious bruise on the face of the arrested person.  Hence, it is essential that we either educate these First Class and Second Class Magistrates, or alternatively and better still just amend the law to limit the hearing of remand applications to Magistrates, properly trained in law and procedure.

Other rights of the accused also needs to be addressed

In the case of P. Uthayakumar, a lawyer, who was arrested last month in the premises of Sepang Magistrate Court, he informed me that on being arrested he was merely informed of the number of the police report and the Penal Code section under which the arrest was made. He was not informed of what the report contained, who made the report, when the report was made or even what offence he was alleged to have committed. Not knowing what he was supposed to have done which led to this arrest, a statement was taken from him. This, it seems, was a gross violation of Article 5(3) which also requires that “where a person is arrested he shall be informed as soon as may be of the grounds of his arrest...”. Surely a report number and a Penal Code section can in no way be considered sufficient to amount to being the said “..grounds of arrest...”.

When arrested, Mr P. Uthayakumar also informed me that he was striped down to his underwear and that front and back view photographs. As a lawyer, this was the first time that I have heard of such a thing being done. From my limited experience, besides taking statements, the police can only take fingerprints and photographs of the arrested persons.

The rights of the arrested person, and of accused persons are many. England and even India have taken leaps and bounds in legislative reforms to ensure that persons arrested and accused persons are given their required  rights, which  would ensure that justice is done to them and that accused persons, not be put to a disadvantage in defending themselves. Malaysia, a fast developing nation, unfortunately have not kept pace with the development of law and rights in many other jurisdictions.  

Innocent until proven guilty

An arrested person is merely a suspect (or a witness in some cases), and he is a person not yet charged with an offence. But looking at the state of the lock-ups and conditions at the police station, and comparing them with the lock-ups and conditions in the Sungai Buloh remand prison, where persons charged with unbailable offence or those who could not furnish bail are being held - it is time that something be done to upgrade the lock-ups and conditions in the police station. SUHAKAM’s Report mentions quite a few recommendations on how police station lock-ups can be up-graded.

In the case of P. Uthayakumar, the police arrested him on the basis of a police report. Was arrest really necessary? The police should really consider whether arrest and detention are really necessary, for after all what they wanted was only to take a statement. Mr P. Uthayakumar was released the following day, and was later charged in court on another day. There are relevant provisions in the Criminal Procedure Code to get a suspect (or a witness in some cases) to come in for purposes of investigation and/or to give a statement to the police. The Malaysian should preferably shy away from arresting and detaining persons save in very serious cases where there is a risk of the said person absconding. In the case of P. Uthayakumar, I am of the opinion, that there was no justifiable reason to arrest an officer of the court in front of court and detaining him - for surely if asked to come in for the purposes of investigation in compliance with the law, Mr P. Uthayakumar would have come in.

Conclusion

The Malaysian Bar and/or the State Committees have yet to respond to the withering of rights of arrested persons as contained in the Practice Direction of the Chief Justice Bil 3/2003. It may have not been the intention of the Chief Justice when issuing the said Directions, but alas a thorough reading and the “vagueness” in part of this Directions may lead to the exclusion of lawyers even during the remand hearings. A prompt and open response is needed, and thereafter the necessary follow-up must follow to ensure that rights guaranteed by the Federal Constitution be given its full effect, without provisions to exclude.

This Practice Direction was printed in the Bar Council’s Infoline (January 2003 Issue), and it is sad that the Criminal Procedure Committee and/or other relevant committees of the Bar did not catch the dangers of further withering of the arrested persons rights.

As the Malaysian Bar, we have the duty and responsibility of upholding the cause of justice without fear and favour - and those who elect to be our leaders must be alert and prompt in making a response as and when there is any injustice and/or anything that may lead to a deprivation of rights of ordinary Malaysians.

Charles Hector

February 2003