Friday, January 30, 2009

Right of the Arrested: Free Phone Calls, Right to inform friend...meet lawyer...

The law has changed from before - and now persons arrested do have the right to phone calls...

When arrested, the police MUST

a) Tell you the reason for the arrest

b) Allow you to get in touch with a friend or relative to tell them where you are, etc - and the police must provide means of communication (phone, etc) for free. No more asking for RM50 or more to use the phone...

c) Allow you to get in touch with a lawyer (and thereafter provide for a chance for you to meet up with your lawyer) - the police is not to start questioning or take a statement until you have had the opportunity to meet with your lawyer...

(Of course there are some exceptions....

Anyway, the fight for these rights were rejuvenated by the Malaysian Bar when they passed unanimously the following resolution in 2000...

Motion 5:

Whereas:

1. When a person is arrested in Malaysia, he can be detained by the police for a maximum period of not more than 15 days if the police utilize the powers pursuant to section 117 of the Criminal Procedure Code.

2. In Malaysia, there is no right to a phone call. The suspect cannot inform his lawyer, his family, friends and employer of the fact of his arrest and detention.

3. The constitutionally guaranteed right of access to a lawyer may be denied, even though the words used in Article 5(3) Federal Constitution is “Where a person is arrested he …SHALL be allowed to consult and be defended by a legal practitioner of his choice.”

4. Access to the lawyer is a right that should be available from the point of arrest. When a suspect is brought before the Magistrate pursuant to Section 117 Criminal Procedure Code and when the suspect is charged in court, he/she has the right to be represented by a lawyer.

5. The police do NOT have a duty in law to inform the lawyer: (a) whether the suspect will be charged in court OR whether the police are applying for further detention to complete their investigations. If the latter be the case, the police have no duty in law to inform the exact time when the suspect will be brought before the Magistrate; and the identity of the said Magistrate before whom the suspect will be brought for the section 117 application.

It is hereby resolved:-

A. That the Malaysian Bar expresses concern over the denial of the fundamental liberty guaranteed by Article 5(3) of the Federal Constitution to a majority of the suspects arrested and detained in the police lock-ups.

B. That the Malaysian Bar calls on the Malaysian Government to ensure that the right of access to a lawyer upon arrest and the right to be represented by a lawyer, especially during section 117 applications, be recognised and respected by the police and all concerned.

C. That the Bar Council does whatsoever necessary to ensure that the RIGHT TO ONE PHONE CALL, at the very least, be accorded to a suspect when arrested.

D. That the Bar Council does whatsoever necessary to ensure that the police is vested with the duty in law to inform lawyers of the detained suspect as to whether they are opting for an application for further detention pursuant to section 117 Criminal Procedure Code, and if so, at what time the suspect will be brought before a Magistrate and which Magistrate will be hearing the said application so as to give full effect to the right to a lawyer upon arrest.

Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam

Resolution:

The Motion was unanimously carried. (Source: Malaysian Bar Website)
And finally in 2006, it became law...and in middle 2007 this law came into force....See section 28A of the Criminal Procedure Code...

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.

[Ins. Act A1274; Subs. Act A1304]


1 comment:

SPEAK UP MALAYSIA said...

KNOW YOUR RIGHTS MALAYSIA: The Red Book - Police and Your Basic Rights

In 2006, The Malaysian Bar Council took the initiative to launch a publication titled "The Red Book - Police and Your Basic Rights".

The Red Book contains information that you will find useful if you have to deal with the police (plain clothes or uniformed).

For starters, the book contains information on your rights and what you can do and cannot do if/when you are stopped, arrested or questioned by the police.

Other useful information in the book include the colour schemes of police authority cards (blue is inspector or above, yellow below, white reserve and red suspended) and the phone numbers of Legal Aid Centres (LAC) that you can call if you need a lawyer.

Visit the link below to download an English or BM version of The Red Book from the Malaysian Bar Council website:
http://www.malaysianbar.org.my/index.php?option=com_docman&task=cat_view&gid=333&Itemid=1

SPEAK UP MALAYSIA:
PROTECT OUR RIGHTS,
STOP HARASSING
PEACEFUL CIVILIANS.

“All persons are equal before the law and entitled
to the equal protection of the law.”
Article 8 (1), Constitution of Malaysia

“Every citizen has the right to freedom of speech and expression.”
Article 10 (1A), Constitution of Malaysia

“All citizens have the right to assemble peaceably
and without arms.”
Article 10 (1B), Constitution of Malaysia