ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEAL PROGRAMME
Urgent Appeal Case: AHRC-UAC-249-2008
7 November 2008
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MALAYSIA: Lawyer is persecuted by police for statement in court over police negligence
ISSUES: Freedom of opinion and expression; rule of law; independence of lawyers; right to health
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Dear friends,
The Asian Human Rights Commission (AHRC) has been informed that a lawyer's freedom to speak independently as an advocate on behalf of a citizen has come under attack by the police. Following a statement in court regarding police negligence of his client's medical condition that resulted in her fainting during her remand hearing and having to be rushed to hospital, Mr. N. Surendran was approached by police and told that a police report has been lodged against him and that he is required for questioning. There has been no similar inquiry initiated into the failure of the police to ensure medical treatment for his client while in police custody.
CASE DETAILS:
On 24 October 2008 Mr. N. Surendran and a team of other lawyers were representing the ten persons arrested at the Prime Ministers Office in Putrajaya on 23 October 2008 for trying to hand over an appeal letter to the Prime Minister (PM) calling for the release of five members of the banned Hindu Rights Action Force (Hindraf) and others detained without trial under the Internal Security Act 1960 (ISA). They were the first persons to be arrested after the organisation was declared unlawful on 15 October 2008.
During the remand hearing at Kajang Magistrates' Court, Surendran informed the Magistrate that the police had been negligent in their handling of detainee Lourdes Mary. She is diabetic but had not been given her diabetic medications including her insulin injections causing her to faint in court during the proceedings, She had to be rushed to hospital (please see photo). Her leg had swollen to twice its normal size. Lourdes had been brought to court at 8.30am but collapsed at around 12 noon.
As Surendran left the court after the hearing he was approached by two police officers and told that a report had been lodged against him and that he was being investigated for having said in court that the police were negligent. They later issued Surendran a notice under Section 111 of the Criminal Procedure Code (CPC) dated November 3, asking him to present himself for questioning at the Putrajaya Police Head Quarters on Thursday 6 November 2008 at 2.30pm. The Investigating Officer Chief Inspector Saunders also told Surendran that he was being investigated because of his statement in court.
Surendran, in a statement dated November 3, said:
"This development is very disturbing as it encroaches upon the sacrosanct duty of an advocate to speak without fear and favour on behalf of citizens. The liberties of the people are put at serious risk when lawyers are harassed or questioned merely for speaking on their behalf in a court of law. Indeed, it is fundamental in Commonwealth countries that lawyers are to be free to advocate their clients cases without interference or prosecution by the authorities, especially so in criminal matters. It is of utmost importance that the authorities recognise and accept the crucial role played by lawyers in the criminal justice system and it is hoped that they will refrain from such actions in the future".
The President of the Malaysian Bar, Ambiga Sreenevasan, on November 6, did say:
'We are perturbed that the police served a Section 111 notice on lawyer N. Surendran in relation to statements he allegedly made to the magistrate in court in the course of proceedings. N. Surendran was questioned today by the police pursuant to a police report made against him for the alleged statements. We are seriously concerned, as no offence appears to have been committed and the police were unable to enlighten him as to what offence they are investigating.
We therefore view the police questioning as an act of pure harassment and intimidation that encroaches upon the ability of an advocate and solicitor, who is an officer of the court, to perform his duties effectively and to the best of his ability.
This harassment must stop if we are indeed committed to the principle of access to justice and to the Rule of Law. It is internationally recognised that lawyers perform a vital function when they act for their clients in the pursuit of justice. It is also internationally recognised that they must be permitted to carry out these functions freely.'
The police are yet to discontinue the investigation against Surendran.
BACKGROUND INFORMATION:
HINDRAF is a movement that advocates for Indian rights in Malaysia that emerged in 2007.
On the 13 December 2007 five Hindraf leaders were detained under the Internal Security Act, 1960 (ISA) and issued a two year detention order. They are P. Uthayakumar, R. Kengadharan, V. Ganabatirau, M. Manoharan and a senior executive with Malaysia Building Society Bhd, K. Vasantha Kumar. Leader P. Waythamoorthy fled to London. The five who are being detained without trial have come to be known as the HINDRAF 5. (Please see: AHRC-FUA-001-2008).
Despite the detention of their leaders, the movement continued to advocate for rights, and on 15 October 2008 the Home Minister Datuk Seri Syed Hamid Albar declared it as illegal.
In a statement he said:
"As a result of the investigations, the Home Ministry, as per its authority under sections 3 and 5 of the Societies Act 1966, has declared Hindraf unlawful and detrimental to peace, public order, security and the moral values of Malaysia".
"I feel that if we don't rein in their activities, they will continue to jeopardise security and public order, and our country's sovereignty, as well as upset the harmony among races".
Syed Hamid said the decision to ban the movement was based on all of the activities the organisation had been involved in since its beginning. The Home Minister stated that Hindraf were trying to exploit racial issues within Malaysia and causing distrust between Indians and Malays which was detrimental to public order and safety. He further urged citizens to avoid becoming involved in any way with this organisation or its activities.
On the 23 October 2008, the six year old niece of detained Hindraf leader P Uthayakumar, accompanied by ten other persons, went to the Prime Minister's office to hand over an appeal letter, asking for the release of her uncle. They were arrested and detained. In Malaysia, within 24 hours, the police have to obtain a further remand order if they want to continue to detain the suspects further for investigation.
On 24 October, Magistrate Nurdiana Mohd Nazari, who heard the remand application, allowed further remand for three days for ten of them, including Lourdes Mary.
It was during this remand hearing, that Lourdes Mary collapsed and had to be rushed to the hospital.
FURTHER INFORMATION:
The ISA is seen to represent a deteriorating human rights and democracy situation in Malaysia by the government. It allows for detention without trial and Section 8 (power to order detention or restriction of persons) states that if a Minister is satisfied that the detention of any person is necessary for the security of Malaysia they can issue a detention order directing that person to be detained for a period not exceeding two years. However, this detention order can be renewed by the Minister, which is not uncommon therefore making detention effectively indefinite: AHRC-UAC-217-2008
By declaring the HINDRAF as unlawful, it generally made associating in any way with HINDRAF now a crime. As an example, section 48(1) of the Societies Act 1966 states :"(1) Any person who in any manner acts on behalf of, or represents, or assists, whether in a professional capacity or otherwise howsoever, any unlawful society, or any person who was an office bearer thereof as if he continues to be an office-bearer thereof, or any body which was the governing body of the society or of any branch thereof as if it continues to be such governing body, in relation to any matter, shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding fifteen thousand ringgit or both.
ADDITIONAL COMMENTS:
The United Nations Basic Principles on the Role of Lawyers is an international standard designed to assist Member States in ensuring the proper role of lawyers. These should be respected and incorporated into Governments national legislation and practice. Under Section 14 lawyers are to act to protect the rights of their clients and to promote justice, upholding human rights and fundamental freedoms as recognised in national and international law, acting freely and diligently. Under Section 16 Governments should ensure that lawyers can thus perform their professional functions without 'intimidation, hindrance, harassment or improper interference'.
Further, under Section 18 of the Basic Principles it states: 'Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions', and importantly in Section 20: 'Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority'.
Surendran acted within his professional function by drawing attention to his client, Lourdes Mary’s right to medical attention and the subsequent denial of this by police that lead to her ill-health. That the police have failed to investigate the serious consequences of officers' actions towards Lourdes, causing her to faint and be rushed to hospital, but have acted with efficiency and promptness regarding their 'reputation' and its possible defamation, casts a shadow over Malaysia's reputation regarding human rights within the international community.
SUGGESTED ACTION:
Please write letters to the authorities listed below stating your concern over Malaysia's deteriorating human rights record and the lack of freedom or independence of lawyers.
The AHRC has written a separate letter to the Special Rapporteur on the Independence of Judges and Lawyers calling for intervention in this case.
To support this appeal, please click here: 
SAMPLE LETTER:
Dear __________,
MALAYSIA: Please stop harassment against a lawyer informing court of police negligence
Name of victims:
1. Mr. N. Surendran, lawyer
2. Ms. Lourdes Mary, client
Name of alleged perpetrator: Malaysian Police
Date of incident: 24 October 2008
Place of incident: Kajang Magistrates' Court, Putrajaya
I am concerned to learn of another example of the worsening human rights record and further deterioration of freedom in Malaysia.
On the 24 October 2008 Mr. N. Surendran, a lawyer, who was representing clients, including Lourdes Mary, one of 11 persons arrested on the 23 October 2008 when attempting to hand over an appeal letter to the Prime Minister at the Prime Minister's Office asking for the release of the Hindu Rights Action Force (Hindraf) five who have been detained without trial under the Internal Security Act 1960 since 13 December 2007.
I am aware that he informed the court that police had been negligent in ensuring that Lourdes Mary received the required medical attention. Lourdes Mary is a diabetic and needed her medication, including insulin injections. Being denied her medication, her leg swelled up and she suffered pain and great discomfort. She fainted in court during the remand hearing and had to be rushed to hospital.
I am informed that when Mr. N. Surendran left court he was approached by police officers, who told him that a report had been lodged against him for what he had said in court concerning police negligence. It was also confirmed later by the Investigating Officer Chief Inspector Saunders that Surendran was being investigated for the statements he made in court.
Subsequently, a Section 111 of the Criminal Procedure Code (CPC) notice dated 3 November 2008 was issued to him requiring him to report for questioning at the Putrajaya District Police Headquarters on Thursday 6 November 2008 at 2.30pm. This has further been confirmed by the Investigating Officer Chief Inspector Saunders, the questioning is to be on Thursday 6 November 2008 at 2.30pm.
The police have still not discontinued their investigation against Mr N. Surendran.
I am informed that the International Covenant on Civil and Political Rights (ICCPR) includes under Article 14.1 that everyone shall be entitled to a hearing by an independent and impartial tribunal, and in Article 19 that everyone has the right to freedom of expression.
This case clearly illustrates police harassment and persecution of Surendran over his comment on police negligence to the Magistrate, the level to which the independence of lawyers has become threatened.
I am further informed that police have failed to investigate the issue of Lourdes Mary's denial of medical care and medication for her diabetes during police custody, which caused her medical condition to worsen. The police should not be immune from criticism, particularly when errors have been made that could have cost the life of a detainee. Rather than trying to protect their 'reputation', police should be investigating their own procedures and officers, and allow lawyers to perform their professional functions free from political bullying.
In light of the above, I urge you to take immediate steps to stop this harassment against Surendran by the police and to ensure that Surendran can continue performing his profession as a legal representative without further harassment.
If this kind of police action does not stop, it will affect the independence of lawyers and their ability to perform their duty of upholding then cause of justice without fear or favour.
I also urge you to investigate the police officers responsible for failure to provide proper medical care and attention to the detainee.
I take this opportunity to call upon the government of Malaysia to repeal the Internal Security Act, 1960 (ISA) and other laws that allow for detention without trial. I call on the Home Minister to also revoke all current 2-year detention orders and release all those being detained without trial.
I also call on the Home Minister to revoke his order making HINDRAF unlawful, and to respect the freedom of association and expression.
Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:
1. Dato' Seri Syed Hamid bin Syed Jaafar Albar
Home Minister
Blok D 2, Parcel D
Pusat Pentadbiran Kerajaan Persekutuan
62546 Putrajaya
MALAYSIA
Fax: +60 3 8889 3854
Tel: +60 3 8886 3299
2. Dato' Seri Abdullah Ahmad Badawi
Prime Minister
Prime Minister's Office Malaysia
Perdana Putra Building
Federal Government Administrative Centre
62502 Putrajaya
MALAYSIA
Fax: +60 3 8888 3444
Tel: +60 3 8888 6000
E-mail: ppm@pmo.gov.my
3. Tan Sri Musa Hassan
Inspector General of Police (IGP)
50560 Bukit Aman,
Kuala Lumpur.
Fax: +60 3 22725613
Tel: +60 3 22626015
4. Tan Sri Abu Talib Othman
Chairperson,
National Human Rights Commission (SUHAKAM)
Tingkat 29, Menara Tun Razak,
Jalan Raja Laut,
50350 Kuala Lumpur
MALAYSIA
Fax: +60 3 2612 5620
Tel: +60 3 2612 5600
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)
Asian Human Rights Commission
19/F, Go-Up Commercial Building,
998 Canton Road, Kowloon, Hongkong S.A.R.
Tel: +(852) - 2698-6339 Fax: +(852) - 2698-6367
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