Right to ONE Phone Call Resolution (25/3/2000)

The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 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.