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Thread: Lawyers: Police abused CPC provisions

   
   
       
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    Lawyers: Police abused CPC provisions

    Lawyers: Police abused CPC provisions

    Posted by admin
    Saturday, 09 May 2009 01:42

    Written by Melody Song, The Edge

    The Malaysian Bar Council criticised the police for disallowing the five lawyers who were arrested Thursday night to legal counsel, saying that they violated specific provisions in the Criminal Procedure Code (CPC) which guarantees those detained access to lawyers.

    The lawyers had gone to the Brickfields police station on Jalan Tun Sambathan to assist 14 people who had been arrested for holding a candlelight vigil for political analyst Wong Chin Huat.

    Bar Council President Ragunath Kesavan said that although under Section 28A ( of the CPC there is an exception which allows police to refuse lawyers access to their clients, it is invoked only in extraordinary circumstances.

    Bar Council’s Human Rights Committee Co-chairman Andrew Khoo added that the context of invoking the exception is when it is believed that the client may pass harmful information to an outsider via the lawyer, or hide evidence, such as in kidnap cases.

    More…
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    Re: Lawyers: Is the Malaysian Bar pathetic? — Art Harun

    Is the Malaysian Bar pathetic? — Art Harun

    The right of any person to legal counsel upon being arrested is clearly guaranteed by the Federal Constitution. It is a part of our fundamental liberties. The provision for this right in the Federal Constitution is in clear term. It says:

    “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.” (Article 5 Paragraph (4) of the Federal Constitution).

    Isn’t the above provision clear enough? But it seems that our police (and probably our Government) do not understand that provision.

    Following the Federal Constitution, our Criminal Procedure Code provides as follows:

    “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.

    ( 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 ( shall only apply upon authorisation by a police officer not below the rank of Deputy Superintendent of Police.

    (10) The police officer giving the authorisation under subsection (9) shall record the grounds of belief of the police officer that the conditions specified under subsection ( 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 ( have ceased to apply where the person arrested is still under detention under this section or under section 117.”

    It is as clear as daylight. An arrested person must be allowed to see his lawyers as soon as practicable if he so wishes. The police can only deny this right under the following circumstances:

    • If, by allowing him to see his lawyer, the arrested person’s accomplice may be able to avoid arrest;

    • Or if, by allowing him to see his lawyer, evidence may be fabricated, concealed or destroyed;

    • Or the arrested person’s statement must be taken without delay having regard to the safety of other persons. (for example, if a person is arrested under suspicion of being involved in a kidnapping, his statement must be taken urgently as the kidnapped person’s life may be in danger).

    But not any kind of police officer can decide to deny the right to legal counsel. Only a Deputy Superintendent of Police or his superior can make that decision. Otherwise, legal counsel cannot be denied. Is that not clear? What is so unclear about that? Which part of the above section is unclear?

    Of course, our police are more than happy if lawyers are not present to be consulted by any arrested person. I don’t really know why. Probably in their mind, lawyers are their enemy.

    Therefore they spell trouble. What our police (and our Government) seems to forget is that the whole criminal justice system (or administration of criminal justice) consists of the police, the prosecution, the lawyers and the Courts. Well, we can also say that the prison department is also an integral part.

    All these elements have their own duties and functions. The police investigates. The prosecution decides whether to prosecute or otherwise. If they want to prosecute, than the prosecution prosecutes. The lawyers defend. The lawyers also ensure that there is no abuse. They also ensure that the police plays by the rules. What happened if rules are not followed? Well, remember what happened to Kugan? The Court then decides. That is how it works. Every party is but an integral part of a system. A system which is there to ensure justice is done.

    The police should stop treating lawyers as their enemies. I think sometime the police forget their real role in this whole system. Their role is to investigate according to the rule.

    The police are just the first element in a wider and broader justice system. It is not their function to ensure punishment. It is their function to ensure justice has been done.

    And justice can only be done if rules are followed. Is that too difficult to understand? And when lawyers come to the police station to see an arrested person, they are just doing their job. And performing their duty and function within the system. That is all. What is so threatening about that?

    And so, on the night of 7th May 2009, several persons were arrested supposedly for an illegal assembly. Five young lawyers (4 ladies and 1 gentleman) came to the police station after receiving calls from the arrested persons. They requested to see their clients. Not only were they refused, they were arrested instead!

    Why? They were accused of being part of the illegal assembly? Or were they obstructing justice? Nobody knows. But they were arrested and locked up. They were told to wear lock up clothes, handcuffed and made to sleep in a cell. We have not only a case of arrested persons being denied of legal counsel, but also of the legal Counsels being arrested for trying to do their job!

    What is becoming of this country? Are we seeing a total and absolute breakdown of law in Malaysia?

    What has become of our police? What is so difficult about letting lawyers to see their clients in accordance with the Federal Constitution and the Criminal Procedure Code?

    What is wrong with the police? This is why the proposed Independent Police Complaints and Misconduct Commission should be established as soon as possible. If the police force is to gain credibility and the trust of the people, the immediate establishment of that commission is a must. The people are now asking, “Who polices the police?”

    This is a blatant transgression of the people’s right. A vulgar exercise of power. Unwarranted and uncalled for.

    And when other lawyers came to discuss the matter with the police, they were shouted at and just told to go away. One lawyer was even told to go and read the law properly.

    Why the rudeness? Have we lost all human values? All courtesy? What has happened to us?

    As for the Malaysian Bar. Well, all 200 hundred of its members turned up in Court the next day to show support. 200? What crap! A disgrace no less! If this had happened in India or Pakistan, thousands of lawyers would have come! And who came? The usual suspect of course. Tuan Hj Sulaiman Abdullah, Malik Imtiaz, Ranjit Singh, Amer Hamzah, Ambiga et al. The others I suppose were very busy attending to clients and stuffs! What nonsense!

    Some say it is their Constitutional right not to come and show support. Well, it is of course our Constitutional right to shit in our pants as well, is it not? Then why don’t we?

    Or are we all already doing that? Some say what difference can 13000 lawyers make? There are 27 million people in Malaysia. Yes. This is the kind of nonsense we have in the Malaysian Bar. This is the kind of complete apathy that we have among us.

    One must remember that the Walk For Justice by 2000 lawyers made a difference in 2007. Because of all the noise made by the Bar and later the public, a Royal Commission was established to investigate the VK Linggam tape.

    Never mind that the Government has chosen not to prosecute anybody. But at least the whole Malaysia, if not the whole world, now knows what kind of rubbish takes place behind closed doors! Well at least it hastened the establishment of the Judicial Appointment Committee.

    The Bar’s past President, Ambiga, is a proud recipient of the US Secretary of State’s International Women of Courage 2009 award. But sadly, her courage is not present in most of the members of the Bar.

    This Friday (four days time), at 3 o’clock, the Bar’s EGM to denounce the action of the police in arresting young lawyers who were just doing their job will take place at Dewan Sivik, PJ. I wonder how many lawyers will turn out. 500? 600? Pathetic if that is going to be the case.

    Five of our brothers and sisters were arrested and 600 turn out. Almost comical. It almost lends credence to the people’s perception that lawyers are sharks who would only act for money.

    Well, I suppose, we deserve that perception. Although I would like to be proven wrong. — www.art-harun.blogspot.com
    py

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    Re: Lawyers: Police abused CPC provisions - Account from arrested lawyer

    http://www.malaysianbar.org.my/general/a_mockery_and_a_blessing_in
    _disguise.html

    A Mockery And A Blessing In Disguise!


    Monday, 11 May 2009 01:24pm
    A personal account contributed by Fadiah Nadwa Binti Fikri

    Following the arrests made on previous night on participants at the peaceful
    candlelight vigil in solidarity with Bersih activist Wong Chin Huat, my
    friends and I were informed to be on standby for possible new arrests on the
    night of 7 May 2009.

    I headed home after work and decided to go to the gym early that night at
    around 8pm, while being on standby to head straight to the police station in
    case arrests were indeed made. I kept looking at my handphone for any
    updates. It was 930pm and I decided to leave the gym. Five minutes after
    that, I got a message from Puspawati Binti Rosman saying that 14 people had
    been arrested by the Police. I forwarded the message to Murnie Hidayah
    Binti Anuar, asking her to come to the police station to render legal
    assistance to those who had been arrested.

    Puspa was the first to arrive at the police station and at around 10pm, all
    of us gathered in front of the police station. We informed the police that
    we were the lawyers for those who have been arrested. We demanded the
    police to give legal access to our clients. The officer-in-charge told us
    that the investigating officer (IO), DSP Jude Pereira, was in a meeting at
    that point in time. We tried to stay in touch with our clients in order to
    obtain recent updates on their condition, and we gave them legal advice over
    the phone. Our clients informed us that the police had asked them to sign
    the certificates under section 28A( of the Criminal Procedure Code (CPC),
    i.e. the waiver to the right to legal representation. We advised them not
    to sign the certificates.

    After waiting for nearly an hour, we were informed that the IO's meeting had
    just finished. We demanded to see the IO but to no avail. I called the IO'
    s number and when he answered, I demanded that he give us access to our
    clients since we had been waiting outside the gate for nearly an hour.

    He said that he had invoked section 28A( of the CPC and that our clients
    had signed the certificates. I got so upset that I repeatedly told him that
    our clients had not signed the certificates. At that very moment, every one
    who was there could hear, loud and clear, the cries of our clients demanding
    their constitutional right to see their lawyers, as they shouted, "WE WANT
    LAWYERS!"

    I told the I.O to come near the gate where we were standing as we needed to
    talk to him to clarify the situation. He came towards us and he repeatedly
    said that our clients had signed the certificates and he asked us to leave.
    When I asked him to specify the grounds for invoking section 28A( of the
    CPC, he said, "That's the ground!". And I responded, "What IS the ground?
    Can you please specify the ground??" He kept quiet as he was unable to
    answer that simple question. Dissatisfied with his response, we demanded to
    see the certificates ourselves. He just walked off, leaving us without any
    explanation.

    A few minutes later, OCPD Wan Abdul Bahari approached the gate and ordered
    everyone to disperse in three minutes as what was happening outside the gate
    was allegedly an illegal assembly. I could see the press and those who were
    there leaving the place. Ravinder Singh Dhalliwal, Puspa, Murnie, Syuhaini
    Binti Safwan and I did not step back as we were fully aware of the fact that
    we were still on duty.

    The OCPD counted to three, the gate was opened, and all we could see was the
    police officers coming towards us. We were all arrested. We were brought
    to the police station car park and asked to stay there. I got a call from
    Amer Hamzah Arshad asking me to tell the police that our lawyers wanted to
    see the IO. I called one police officer and told him that our lawyers
    needed to see the IO. Much to my surprise, he had the nerve to tell us that
    we were not under arrest. We asked him, "If we are not under arrest, that
    means we can walk out now right?" He just looked at us. What a mockery!

    Each of us started to call our families and lawyers. While waiting for the
    IO to get back to us, we just couldn't help but laugh over the arrests. Don
    't get us wrong, it's not that we enjoyed being arrested, but it was just
    that the whole situation did not make any sense at all and the best thing
    that we could do was laugh over the ludicrousness of the institution called
    "Polis Di Raja Malaysia", an institution that is supposed to uphold law and
    order in this country of ours.

    "Violated" is the best description as to our feelings in relation to the
    whole scenario when law, fairness and justice were replaced with
    highhandedness, arbitrariness and gross violation by an institution that is
    entrusted to do the contrary. I could still remember, one month ago during
    a planning meeting on urgent arrest training at the Legal Aid Centre, one
    question that was raised was the possibility of lawyers being arrested
    whilst discharging their statutory duties. After what happened last
    Thursday night, the answer is yes, in line with the infamous tagline
    "MALAYSIA BOLEH" - anything is possible, including the deliberate breach of
    constitutional law, the highest law of the land.

    We were kept in Brickfields Police Station until 4am. The waiting game was
    utterly exhausting and emotionally draining. The fact that we had the
    support from the conscientious members of the Malaysian Bar made us all
    stronger to face the situation. Knowing that the conscientious members of
    the Bar would always be there for us reaffirmed, and continues to reaffirm,
    our beliefs that the struggle must continue. The fact that all
    conscientious members of the Bar are behind us reaffirms that Rule of Law
    still has the chance to flourish.

    We are lucky that we could see for ourselves, before our very own eyes, how
    degrading the conditions in the lock-up are. It struck me in the head that
    once you are being held in the lock-up, you lose your dignity as a human
    being. The unfair treatment given to us and our clients who first got
    arrested speaks for itself. They were yelled at and intimidated when
    statements were being taken down. Why the double standard? Can't we all be
    treated as normal human beings? Does God treat lawyers and laymen
    differently? It's a blessing indeed, to have experienced all this
    firsthand.

    We don't fight this battle just for us, it's for humanity as a whole.
    py

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    Re: Lawyers: Bar wants minister, IGP to quit over arrest of lawyers

    Bar wants minister, IGP to quit over arrest of lawyers
    By Debra Chong

    PETALING JAYA, May 15 — The Malaysian Bar today demanded the immediate resignation of the Home Affairs Minister, the Inspector-General of Police (IGP) and two other high-ranking police officers over the “unlawful” arrests of five lawyers from its Legal Aid Centre last May 7. More…
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    Re: Lawyers arrest: BERSIH: Hishamuddin must resign if Najib means business

    BERSIH press relase on 17 May at Petaling Jaya

    BERSIH: Hishamuddin must resign if Najib means business


    The Coalition for Clean and Fair Elections (BERSIH) supports the Bar Council's demand for the resignation of the Home Minister Hishamuddin Hussein, Inspector-General of Police Musa Hassan, the Brickfields OCPD Wan Abdul Bari Wan Abdul Khalid and investigating officer on-duty Jude Pereira over the unlawful arrest of five lawyers on duty on May 7, 2009.

    Responding to the Bar's demand for an apology, Hishamuddin has replied that "lawyers are not above the law", implying that lawyers representing detainees can be construed as a "criminal" act. BERSIH stresses that, such responses reveal a lack of both competence and integrity on the part of the Home Minister who is in charge of law and order issues.

    BERSIH calls upon Prime Minister Najib Tun Razak to immediately remove Hishamuddin from his Home Affairs portfolio if the Minister refuses to resign. A minor reshuffle of the Cabinet is inevitable if the Prime Minister means business in his slogan "performance now". Like the Perak coup, Hishamuddin's abysmal and misjudged performance is now a liability to the new Cabinet.

    BERSIH also calls upon Koh Tsu Koon, the Minister in charge of monitoring the performance of all Ministers to either recommend the removal of Hishamuddin or come out in defence of the Minister. Koh's portfolio in quality control (QC) would be pointless if he does not respond to crises but produces a KPI report only after months of disastrous ministerial incompetence.

    BERSIH stresses that the Bar Council's resolution to demand political accountability and seek judicial remedy over the unlawful arrest of lawyers on duty is an act to protect public interest, and must not be seen as driven by self-interest. Civil society groups including other professional organizations should therefore show solidarity with the Bar in demanding an unreserved apology from the government and the resignation of the Ministers and police officers for their misconduct.
    py

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    Re: Lawyers: Police abused CPC provisions

    When we have political leaders who are so full of themselves and speak with such hypocrisy, is in any wonder that the people's anger with UMNO is increasing by the day? The victims (the 5 detained lawyers) want to sue the govt and the police for abuse of power and he is twisting it round to make it appear as if the victims want to threaten the govt.

    Nazri keep on urging the victims (lawyers and the Perak PR State Govt) to let the courts decide when we know full well the judiciary has lost the trust of the people and are seen to be beholden to UMNO. Such arrogance will only hasten the departure of UMNO.


    Nazri: Bar Council’s decision to sue govt an attempt to intimidate

    KUALA KANGSAR, May 17 – The decision by the Bar Council to sue the government over the May 7 detention of five legal aid lawyers is an attempt to intimidate the enforcement authorities from discharging their duties, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said today.

    He said it also showed that the legal practitioners themselves wanted to undermine the country’s legal system.

    “The Bar Council is supposed to be a role model. If police enforce the law and among those caught are their (Bar Council) members, they have to accept it.

    “We have the judiciary. Let the court decides whether the five lawyers are guilty or not,” he told reporters after opening a programme for Ujian Penilaian Sekolah Rendah (UPSR) pupils in the Padang Rengas parliamentary constituency at the Sekolah Menengah Kebangsaan Temenggong, Kati here.

    He was commenting on a resolution passed by the Bar Council at its extraordinary general meeting on Friday to sue the government and Inspector-General of Police Tan Sri Musa Hassan over the detention of the five lawyers during the candlelight vigil for the Coalition for Clean and Fair Elections (Bersih) activist Wong Chin Huat last week.

    On the political crisis in Perak, Mohamed Nazri said, the court was the best avenue to settle the dispute and that there was no need for a fresh state election as the state legislative assembly was still intact.

    “There is no hung assembly”, he said, adding that the request to dissolve the state assembly cannot not be made by the minority. – Bernama Link here…
    py

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    Lawyers detention: IGP: Police will do whatever it takes to maintain security

    It is obvious that the police are there to protect the interests of the Ruling Regime and they will do whatever it takes to protect the security of UMNO's hold on power.

    IGP: Police will do whatever it takes to maintain security

    Posted by admin
    Sunday, 17 May 2009 10:52

    (The Star) SEPANG: The police will do whatever it takes to maintain peace and order in the country, including detaining certain quarters who are out to create trouble, Inspector-General of Police Tan Sri Musa Hassan said yesterday.

    “Are lawyers immune to the law? Can they do whatever they want without fear of any action being taken against them?

    “Lawyers should set good examples and follow their professional procedures when discharging their duties,” he told reporters at the KL International Airport on his return from Hanoi where he attended the 29th Asean Chief of Police conference yesterday.

    The IGP was commenting on the call by the Malaysian Bar for the Home Minister Datuk Hishammuddin Tun Hussein and himself to resign following the alleged unlawful detention of five Legal Aid Centre lawyers by the Brickfields police recently.

    “We have a duty to protect the people and to ensure that peace and security prevailed. I will not allow what is happening in a neighbouring country to happen here. I will never let that happen in this country,” he added.

    Bar president Ragunath Kesavan said the Bar would seek a meeting with the Prime Minister to present a memorandum on the EGM resolution to condemn the police action in denying lawyers access to 15 detainees of the candlelight vigil for political activist Wong Chin Huat on May 7.

    Meanwhile, the Advocates Association of Sarawak also condemned the detention and interrogation of the lawyers. Link here…
    py

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    Re: Lawyers: Who police the Police?

    Lawyers: “Please do some soul-searching”

    2009 May 18
    by elviza

    THE art of writing has always been a passion for me; being a lawyer a job. I keep the two apart for personal reasons. But at times – a certain fracas at the Brickfield’s police station comes to mind – this is not quite possible. Thus, I am forced to temporarily forgo the self-imposed delineation of roles. Therefore, at least for today, I am putting on my lawyer’s hat.

    On 7 May 2009, five legal aid lawyers approached the gate of Brickfield’s police station requesting to see their clients, who had been arrested earlier for holding a candle light vigil for activist Wong Chin Huat. The police denied them access despite the detainees’ insistence to be legally represented.

    Shortly after that, Brickfield’s OCPD ACP Wan Abdul Bahari, went on a rampage, shouting the litany of his warnings declaring that the gathering was “illegal”. A surreal nightmare then began when the five lawyers, including one journalist, were arrested.

    This roughshod behavior of the police means only one thing: a transgression to the rules of law. More…

    Comments in MT.
    py

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