In Malaysia, the right to be represented by a lawyer of your choice is immediately after you have been arrested.
Article 5(3) of the Federal Constitution says this '(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.
28A Rights of person arrested in the Criminal Procedure Code states,
(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.
BEST ADVICE - If you get arrested or are required to answer questions by the police - BE SMART, and consult the lawyer first - know your RIGHTS before talking. The law allows you to not answer some questions as - '...such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture...'(Section 112(2) Criminal Procedure Code)
The person being questioned by the police HAVE the right to refuse to answer... So, be smart, talk to your lawyer first before answering...
When the police wants to question you, and record your statement - can the lawyer be present in the room? YES, he can.
Many years ago, when I was called to Bukit Aman allegedly on some Sedition offence - I had not one, but 4 lawyers present in the room during the police questioning and recording of the statement... That is your right.
In another occasion, when a law enforcement officers turned up in my house. What I told them was to come back later. I then contacted my lawyer, who came and was present when the law enforcement officers returned to question me...
USE your right to consult and be represented by a LAWYER always - BE WISE.
It is a good idea to have contact numbers of several lawyers with you at all times...
It is foolish to assume that you only need to get a lawyer after you have been charged in court -the moment the law enforcement/police come to question you, or arrest you - get a LAWYER. If you cannot afford a lawyer, reach out the Malaysian Bar Legal Aid Center to get a lawyer..
Sadly, there are some BAD laws in Malaysia that attempts to deny or delay your right to consult and/or be represented by a lawyer > Well, good people including the Malaysian Bar is fighting to get rid of such UNJUST laws...
Ratu Naga sues MACC for breaching right to legal representation
Syarul Ema Rena Abu Samah, better known as Ratu Naga, was taken to MACC on Feb 16 for an investigation.
KUALA LUMPUR: Perikatan Nasional’s Syarul Ema Rena Abu Samah has filed a suit in the High Court against the Malaysian Anti-Corruption Commission (MACC), alleging that it breached her constitutional right to legal representation.
Syarul Ema, better known as Ratu Naga, was taken to MACC on Feb 16 for an investigation.
It was later reported that she was being investigated over “rewards” she allegedly received for helping NGOs secure grants.
Syarul Ema claimed that she was denied access to her lawyers that day.
“Seven MACC officers came to my house on Feb 16 and informed me that they wanted to conduct a raid and search.
“They seized my handphone and laptop. After the raid and search was completed, I was detained and taken to MACC’s headquarters,” she said.
She said she informed her lawyer, Nabila Khairuddin, about the arrest.
“I told the officers that I wanted Nabila to be with me when they record my statement,” she said, adding that MACC allegedly refused her request.
MACC allowed Syarul Ema to return home later that evening.
Her suit seeks a declaration that MACC’s actions were in breach of her right to legal representation as enshrined in the Federal Constitution.
The suit is fixed for case management on March 12. - FMT, 8/3/2024
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