IT is very clear, from the comments reported in the press in recent days, that the minister for home affairs, the inspector-general of police and the minister in the prime minister’s department, among others, have wholly misconstrued the position of the Malaysian Bar in respect of the arrests of Fadiah Nadwa Fikri (secretary), Murnie Hidayah Anuar, Puspawati Rosman, Ravinder Singh Dhalliwal (chairperson) and Syuhaini Safwan from the Kuala Lumpur Legal Aid Centre (LAC).
The crux of the issue is that the LAC lawyers were arrested in the course of carrying out their professional obligations as advocates and solicitors, in accordance with the law of the land.
There is a crucial difference between such detention and previous incidents where lawyers were arrested when acting as private citizens. There are sufficient guidelines to regulate the role and responsibilities of lawyers, which stipulate that lawyers should not place themselves in a position of conflict. The LAC lawyers were at the police station to render legal assistance, and at no time were they part of the alleged unlawful assembly.
Section 28A (4) of the Criminal Procedure Code (CPC) and Article 5 of the Federal Constitution guarantee an arrested individual’s right of access to a legal practitioner of his/her choice, and these provisions must be upheld. Logically, lawyers can only provide such legal assistance if they are present at the police station.
The Malaysian Bar is therefore neither seeking nor expecting preferential treatment nor exemptions from the law. It is seeking instead to uphold the fundamental right of lawyers to have access to their clients. It is this role that we are modelling.
The presence of a lawyer when an accused is questioned or arrested promotes accountability because lawyers serve as a check and balance, on the spot, against police excess.
It must be remembered that the police force, as a law enforcement agency, commands far more physical and tangible power than any other public service agency, and hence a mechanism for accountability is all the more necessary. Access to legal counsel is thus a cornerstone of our criminal justice system, and a crucial safeguard for the rights of a detained person.
Nazri It is ironic that Datuk Seri Mohamed Nazri should now characterise the Malaysian Bar’s intention to file suit over the arrests as “an attempt to intimidate enforcement authorities from discharging their duties” when, in reality, the arrests were clearly a form of harassment to obstruct the lawyers from discharging their responsibility to provide legal representation to their detained clients.
It is not the action of the LAC lawyers that has undermined the legal system, but rather the arbitrary action of the police in arresting them while they were performing their duty.
We shall proceed with legal action to determine the role and position of advocates and solicitors in such situations, and to seek clarification of the scope of Section 28A (4) of the CPC, which we believe the police breached in this instance.
The government must accept dissent as a legitimate form of expression and a democratic norm. As much as it may be unpalatable, it must not be silenced but countered with reforms and concrete changes.
Ragunath Kesavan
President
Malaysian Bar
19 May 2009
mike says
Having witnessed the things that are happening in this country simple people like me are losing faith in the government, the police and the judges. We are lost. The Bar at this moment looks like the light at the end of the tunnel. And I am proud to say that the Bar has so not let us down – keep up the good work. You people are our only hope at the moment.
Right2Choose says
We need the Bar Council to be the catalyst for change. Keep up the pressure. We the citizens are fully behind you. We just need more organizations to channel the disappointment of the citizens in our law enforcement and judiciary. Keep it up. The time is now.
god says
This is very true. It is very discouraging and frightening to see the BN govt’s willingness to sacrifice long term social order and stability by using the CPC for political gain. It is making a mockery of the rule of law. It is changing it to a rule of law. There can be only one way to go, if this continues. Destruction of society. This journey starts with the first step. This step is already taken.