Right to legal representation

Access to legal aid is crystallised in Article 5 (3) of the Federal Constitution and in sub-sections 28A (2) to (7) of the CPC.

By Fadiah Nadwa Fikri (The Star)

ON THE night of May 7, I was one of five Legal Aid lawyers who were arrested in the course of discharging our statutory duties to our clients who had earlier been detained for participating in a peaceful candlelight vigil at the Brickfields Police Station in support of Coalition for Free and Fair Elections (Bersih) activist Wong Chin Huat.

At around 10pm that night, we – the four other lawyers being Ravinder Singh Dhalliwal, Puspawati Rosman, Murnie Hidayah Anuar and Syuhaini Binti Safwan – had gathered in front of the police station.

We informed the police that we were the lawyers for those who had been arrested. We demanded that the police give us 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 time. We tried to stay in touch with our clients to obtain the latest 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 (8) of the Criminal Procedure Code (CPC), that is, 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.

He said that he had invoked section 28A (8) 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, everyone who was there could hear, loudly and clearly, the cries of our clients demanding their constitutional right to see their lawyers.

I told the IO 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 (8) 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.

Dissatisfied with his response, we demanded to see the certificates ourselves. He just walked off.

A few minutes later, OCPD Asst Comm Wan Abdul Bari Wan Abdul Khalid 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. The five of us 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 police officers coming towards us. We were all arrested.

The arrests of five of us indeed made history in the legal profession where lawyers, being officers of the Court were subjected to arrests by the police in the course of discharging their statutory duties.

The right to legal representation is crystallised in Article 5(3) of the Federal Constitution which enshrines the fundamental right of a person to consult and be defended by the legal practitioner of his/her choice.

It expressly provides as follows: “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.”

This constitutional right to legal representation must be accorded to any person whose liberty has been deprived by way of arrest and detention by the authorities.

Further, the constitutional right to legal representation has been translated into sub-sections 28A (2) to (7) of the CPC which clearly spell out the rights of arrested persons, including the right to communicate and consult with the legal practitioner of their choice.

Denial of this fundamental right to legal representation amounts to a deliberate breach of the Federal Constitution, the highest law of the land.

This blatant violation of Article 5(3) of the Federal Constitution is severely injurious to the principles of justice, humanity, human rights and the rule of law.

This gross violation impedes the promotion of a fair and just criminal justice system in this country which would in turn contribute to the erosion of the core values of humanity and human rights.

Therefore, it is imperative upon each and every citizen of Malaysia to respect and embrace the fundamental rights and liberties guaranteed by the Federal Constitution.

It is equally pertinent to condemn the deliberate breach of these fundamental rights and liberties as this is in line with the preamble of the Universal Declaration of Human Rights which states:

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people …”