The right of any person to legal counsel upon being arrested is clearly guaranteed by the Federal Constitution. It is a part of our fundamental liberties. The provision for this right in the Federal Constitution is in clear term. It says:
"Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner." (Article 5 Paragraph (4) of the Federal Constitution).
Isn't the above provision clear enough? But it seems that our police (and probably our Government) does not understand that provision.
Following the Federal Constitution, our Criminal Procedure Code provides as follows:
"28A. Rights of person arrested.
(1) A person arrested without a warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.
(2) A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may-
(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts; and
(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.
(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.
(4) Where the person arrested has requested for a legal practitioner to be consulted, the police officer shall allow a reasonable time-
(a)for the legal practitioner to be present to meet the person arrested at his place of detention; and
(b)for the consultation to take place.
(5) The consultation under subsection (4) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be overheard.
(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4) has been made.
(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.
(8) The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that
(a) compliance with any of the requirements is likely to result in
(i) an accomplice of the person arrested taking steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.
(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.
(10) The police officer giving the authorization under subsection (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.
(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after the conditions specified under subsection (8) have ceased to apply where the person arrested is still under detention under this section or under section 117."
It is as clear as daylight. An arrested person must be allowed to see his lawyers as soon as practicable if he so wishes. The police can only deny this right under the following circumstances:
- if, by allowing him to see his lawyer, the arrested person's accomplice may be able to avoid arrest;
- or if, by allowing him to see his lawyer, evidence may be fabricated, concealed or destroyed;
- or the arrested person's statement must be taken without delay having regard to the safety of other persons. (for example, if a person is arrested under suspicion of being involved in a kidnapping, his statement must be taken urgently as the kidnapped person's life may be in danger).
But not any kind of police officer can decide to deny the right to legal counsel. Only a Deputy Superintendent of Police or his superior can make that decision. Otherwise, legal counsel cannot be denied. Is that not clear? What is so unclear about that? Which part of the above section is unclear?
Of course, our police are more than happy if lawyers are not present to be consulted by any arrested person. I don't really know why. Probably in their mind, lawyers are their enemy. Therefore they spell trouble. What our police (and our Government) seems to forget is that the whole criminal justice system (or administration of criminal justice) consists of the police, the prosecution, the lawyers and the Courts. Well, we can also say that the prison department is also an integral part.
All these elements have their own duties and functions. The police investigates. The prosecution decides whether to prosecute or otherwise. If they want to prosecute, than the prosecution prosecutes. The lawyers defend. The lawyers also ensure that there is no abuse. They also ensure that the police plays by the rules. What happened if rules are not followed? Well, remember what happened to Kugan? The Court then decides. That is how it works. Every party is but an integral part of a system. A system which is there to ensure justice is done.
The police should stop treating lawyers as their enemies. I think sometime the police forgets its real role in this whole system. Their role is to investigate according to the rule. The police is just the first element in a wider and broader justice system. It is not their function to ensure punishment. It is their function to ensure justice be done. And justice can only be done if rules are followed. Is that too difficult to understand? And when lawyers come to the police station to see an arrested person, they are just doing their job. And performing their duty and function within the system. That is all. What is so threatening about that?
And so, on the night of 7th May 2009, several persons were arrested supposedly for an illegal assembly. Five young lawyers (4 ladies and 1 gentleman) came to the police station after receiving calls from the arrested persons. They requested to see their clients. Not only were they refused, they were arrested instead!
Why? They were accused of being part of the illegal assembly? Or were they obstructing justice? Nobody knows. But they were arrested and locked up. They were told to wear lock up clothes, handcuffed and made to sleep in a cell. We have not only a case of arrested persons being denied of legal counsel, but also of the legal Counsels being arrested for trying to do their job!
What is becoming of this country? Are we seeing a total and absolute breakdown of law in Malaysia? What has become of our police? What is so difficult about letting lawyers to see their clients in accordance with the Federal Constitution and the Criminal Procedure Code? What is wrong with the police? This is why the proposed Independent Police Complaints and Misconduct Commission should be established as soon as possible. If the police force is to gain credibility and the trust of the people, the immediate establishment of that commission is a must. The people are now asking, "who polices the police?"
This is a blatant transgression of the people's right. A vulgar exercise of power. Unwarranted and uncalled for. And when other lawyers came to discuss the matter with the police, they were shouted at and just told to go away. One lawyer was even told to go and read the law properly. Why the rudeness? Have we lost all human values? All courtesy? What has happened to us?
As for the Malaysian Bar. Well, all 200 hundred of its members turned up in Court the next day to show support. 200? What crap! A disgrace no less! If this had happened in India or Pakistan, thousands of lawyers would have come! And who came? The usual suspect of course. Tuan Hj Sulaiman Abdullah, Malik Imtiaz, Ranjit Singh, Amer Hamzah, Ambiga et al. The others I suppose were very busy attending to clients and stuffs! What nonsense!
Some say it is their Constitutional right not to come and show support. Well, it is of course our Constitutional right to shit in our pants as well, is it not? Then why don't we? Or are we all already doing that? Some say what difference can 13000 lawyers make? There are 27 million people in Malaysia. Yes. This is the kind of nonsense we have in the Malaysian Bar. This is the kind of complete apathy that we have among us.
One must remember that the Walk For Justice by 2000 lawyers made a difference in 2007. Because of all the noise made by the Bar and later the public, a Royal Commission was established to investigate the VK Linggam tape. Never mind that the Government has chosen not to prosecute anybody. But at least the whole Malaysia, if not the whole world, now knows what kind of rubbish takes place behind closed doors! Well at least it hastened the establishment of the Judicial Appointment Committee.
The Bar's past President, Ambiga, is a proud recipient of the US Secretary of State’s International Women of Courage 2009 award. But sadly, her courage is not present in most of the members of the Bar.
This Friday, at 3 o'clock, the Bar's EGM to denounce the action of the police in arresting young lawyers who were just doing their job will take place at Dewan Sivik, PJ. I wonder how many lawyers will turn out. 500? 600? Pathetic if that is going to be the case.
Five of our brothers and sisters were arrested and 600 turn out. Almost comical. It almost lends credence to the people's perception that lawyers are sharks who would only act for money.
Well, I suppose, we deserve that perception. Although I would like to be proven wrong.