Written by Richard Wee & Ashley Yip
Rights of a detained person under Laws of Malaysia.
Introduction
“I want to call my lawyer!” seems to be the key phrase uttered by detained persons and etched in the mind of movie goers the world over. This right to legal representation is a fundamental right afforded to a detained person to ensure that he or she is given proper legal advise. Does this right exist in Malaysia?
This article will focus on 2 particular provisions of law which enshrined the right to a lawyer when detained – Article 5 of the Federal Constitution (FC) and S28A of the Criminal Procedure Code (CPC).
Article 5(3) of the Federal Constitution states:-
(1) No person shall be deprived of his life or personal liberty save in accordance with law.
(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.
(3) 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 of his choice.
(4) Without unreasonable 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:
Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day:
Provided further that in its application to a person, other than a citizen, who is arrested or detained under the law relating to immigration, this Clause shall be read as if there were substituted for the words “without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey)” the words “within fourteen days”:
And provided further that in the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court.
(5) Clauses (3) and (4) do not apply to an enemy alien.
The Federal Constitution defines, ascribe and prescribe the rights of any person who is a Malaysian living in Malaysia. It is the supreme law of Malaysia.
Article 5(3) specifically enshrined the right of the people to consult and be defended by lawyers. Article 5(3) is the guiding principle in the management of this right. As such, when S28A CPC is interpreted, Article 5(3) will be referred to as the supreme guide.
The Criminal Procedure Code (CPC) was amended in 2006 via the Criminal Procedure Code (Amendment) Act 2006 (ACT A1274) which came into force in September 2007, and among the more interesting amendments to the CPC is the addition of Section 28A, which reads:-
Rights of person arrested
Section 28A
(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-
(i) for the legal practitioner to be present to meet the person arrested at his place of detention, and;
(ii) for the consultation to take place.
(5) The consultation under subsection (4b) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard;
(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) and (3) 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 paragraph (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 conditions specified under subsection (4) have ceased to apply where the person arrested is still under detention under this section or under section 117.
Section 28A is a welcome addition to the law. It further crystallises the right of an arrested person to call a relative or friend and/or a legal practitioner. Before the addition of Section 28A, Article 5 of the FC was constantly referred to as a general right of any person to a solicitor when arrested. It is also interesting to note that 28A is similar to Sections 56-58 of the United Kingdom’s Police & Criminal Evidence Act 1984 (PACE).
There are however 2 provisions in Section 28A which, it is submitted, would require judicial interpretation on the scope of police discretion and powers:-
- Section 28A (6)
- Section 28A (8)
Section 28A (6) states that the police may wait for a ‘reasonable time’ for the arrival of the solicitor before commencing questioning of the arrested person. How long is this ‘reasonable time’?
Whilst it is virtually impossible to fix a specific time period to define what is ‘reasonable period’, but it would be logical to acknowledge that the police ought to wait for a few hours, at least for the arrival of the solicitor. There should also be safeguards built into the interrogation of an arrested person who has demanded for the presence of a solicitor, who is albeit late.
Section 28A (8) contains a provision which allows the police to deny any arrested person the right to contact a relative/friend or lawyer if that allowance will lead to one of these circumstances:-
(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.
How far can this proviso be used by the police ?
We refer to a case related to the Malaysia Anti Corruption Commission (MACC). In the case of Public Prosecutor v Phee Boon Poh & Ors [2018] 9 MLJ 376, the High Court affirmed the fundamental right of Article 5 FC and S28A CPC. In that case, the detained parties were deprived of the right to a legal counsel, and the High Court Judge held that the “reasons justifying the deprivation of the applications’ (detainees) liberty ought to be clearly stated”. This decision was affirmed by the Court of Appeal.
It is submitted that Section 28A (8) must not be liberally interpreted and the Courts ought to discourage the arresting Authorities application of that provision.
Conclusion
So, can you call your lawyer?
The easy answer is – Yes. It is a person’s fundamental right to be able to contact his/her legal practitioner when arrested.
Published on 3 August 2020
Photo by Eduardo Sánchez on Unsplash