Saturday, May 14, 2011

In Lock Up: Your Right, You Should Know It!

I wrote this article upon knowing that one of our fellow lawyer colleague were denied her right as a lawyer, hence denying her client's right for a legal representation and amounting to a violation of section 28A of the Criminal Procedure Code (CPC). The incident happens at IPD Selayang whereby the police denied her from seeing her client in the lock up.
If you think that this is a small incident, so small that it won’t effect your right, YOU ARE WRONG!
Such incident is a contempt to the intention of the legislator and a direct disrespect to our constitution.
Why?
Pursuant to the amendment of CPC in 2006, the Parliament had inserted s.28A which strengthens the right of citizen of Malaysia as provided by Article 5 of the Federal Constitution.
The essence of s.28A is that suspects have the right to know the ground of arrest and to make phone call to their family informing their whereabouts and a phone call to their lawyer.
I’m focusing on the right to call the lawyer. The underlying principle of the imposition of such right is simple, to ensure that the suspect know their right upon being held and questioned by the police officer.
To do so, they need a lawyer to tell them what is their right, what can be asked by the police, what cannot be asked by the police, what kind of answer you are not obliged to answer and most importantly, whether the police have the right to use any violence or threat against them to force them telling something that is incriminating against themselves.
By denying a lawyer to see his client in the lock up, it amounting to denying the right of the suspect to get a legal representation, a right clearly enshrined in the CPC as well as our constitution, hence amounting to disrespect to our system of law.
Yes, it was argued that s.28A also allows the police to deny the right of the suspect if there is a possibility that by granting their right to a lawyer, it will disturb the whole police investigation and witness.
But please bear in mind that the right to deny is an exception stipulated in s.28A. Just like any other exception, it should only be applied when you can show that injustice will happen as consequences of adhering to the general rule.
The police should not blatantly invoke the exception without even considering the general rule and its effect of granting such right.
As such, the police being the officer of justice should view such matter in good faith and should not simply being prejudice to the suspect. After all, the suspect is not guilty until is proven guilty.
For the reader, this is your right and you should know it! Learn it and remember it by your heart.
Upon being detained by a police officer you must know that you have the right to;
i) know the ground of arrest
ii) make a phone call to your family
iii) make a phone call to your lawyer asking them some advice or to ask them to come to the lockup.
Know this right because the police investigation period is the most crucial stage in the criminal prosecution as this is the time where all the evidences were gathered.
In simple way, once you get arrested and being detained, get your lawyer!

image taken from: http://www.setiaalam.net/sara/quick-updates/40-setia-alam-updates

3 comments:

  1. Hello barista,
    i was arrested at my house in Gombak and there is no warrant issued by the police. the police scolded me and take me to the police station. they dont even inform me why i was arrested. in that kind of situation, what is my right?

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  2. the police should inform you the ground of arrest. did the police inform to your the ground of arrest at the lock up? because if he do, then the police have discharge its liability, but if they have failed to do so, and they keep on detaining you, you have the right to sue for wrongful detention

    sincerely
    Khairul Aiman
    Messrs. Irzuan

    ReplyDelete
  3. Nice article and perfect posting, I really appreciated

    Kodokijo - get4best.com

    ReplyDelete