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) does 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.