Jerald Gomez & Associates

Police Powers and Remand Proceedings

MLJ – Police Powers and Remand Proceedings

 

Malayan Law Journal Articles

Police Powers And Remand Proceedings by Jerald Gomez1

Introduction

The purpose of this paper is to consider the law relating to the remand of an accused person, the safeguards accorded by the law as well as the actual problems and abuses of the system. Practical difficulties and real life examples will be used to bring out the magnitude and seriousness of the situation. The paper also sets out proposals for changes and the way forward.

The big picture

Certain minimal rights of man based on the concept of ‘equality and liberty’ were recognized early in human civilization. These were accorded international recognition in the Universal Declaration of Human Rights 1948 and to some extent incorporated into the Federal Constitution of Malaysia. The Judiciary in Malaysia is entrusted as the guardian of these rights under the Constitution. To further enhance the protection of such rights a National Human Rights Commission was established in 1999 under the National Human Rights Act. The Act specifically incorporated that ‘regard shall be had to the Universal Declaration of Human Rights…’2

Consideration of the abuse of s 117 detentions 3 and the need for reforms cannot be done in abstract, but in relation to the interest of a democratic society and the rights and personal freedoms of the individual.

It has often been said that an important measure of society’s civilization is the extent to which human rights are respected and protected within the context of criminal proceedings.4 On the other side of the coin are the rights of society protected by the Government who must do so within the laws promulgated by a democratically elected legislature (Parliament).5

The balance

A balance must be struck between the interests of society and that of the individual.

In discussing the individual’s personal freedom in the context of criminal procedure, Lord Denning said,

It must be matched with social security, by which I mean, peace and good order of the community in which we live. The freedom of a just man is worth little to him if he can be preyed upon by the murderer or the thief. Every society must have means to protect itself from marauders. It must have powers  to arrest, to search and imprison those who break its laws. So long as those powers are properly exercised, they are safeguards of freedom. But powers may be abused, and if those powers are abused, there is no tyranny like them.6

Raja Azlan Shah FCJ (as he then was), in Hashim bin Saud v Yahya bin Hashim & Anor7 held,

We too often think of the administration of justice simply as it relates to the protection of the rights of an accused person, that is, to know the charge against him, to be represented by counsel, to be confronted by witnesses, to have an impartial trial. But justice does not mean only for the accused; it also means the interests of the State, and not enough is paid to the interests of the State.

And recently, Abdul Wahab Patail J stated, in relation to remand applications under s 117,

It must be borne in mind that in considering remand applications, the Magistrate must balance fairly between the right of personal liberty of the individual who has not yet been proven guilty, against the equally important public interest, the object that is the duty of the police, that crimes be investigated effectively and offenders be brought to justice. The latter is an equally important consideration.8

The overemphasis on the protection of one interest over another is bound to have an adverse impact. An even balance must be struck between the two.

The judiciary: the balancer and protector

The duty of keeping this fine balance has been entrusted to the Judiciary. In the words of the former Chief Justice of India, PN Bhagwati, in his paper on Human Rights in the Criminal Justice system,

The task in a democracy governed by the rule of law is entrusted to the judiciary and it is the judiciary which has to find a dividing line so as to harmonize the two interests without over emphasizing one to the detriment of the other.9

The former Lord President Tun Salleh Abas in Lim Kit Siang v Dato’ Seri Dr Mahathir Mohamad10 stated,

The Courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role, they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislations or excesses in administrative action.

The judiciary is the ultimate protector of the individual’s rights and liberties. It also keeps the fine balance between the common good of society as a whole and the rights and liberties of the individuals who make up that society.11

The verdict

In 2002 the Chief Justice of Malaysia, Tun Dzaiddin, stated the position clearly,12

In my personal view, the current criminal procedures as we know them, when set against the backdrop of real life situations now, appear to be wanting.

The learned Chief Justice went on say that,

In fact, there should be a bundle of protections, such as against unreasonable search and seizure, arbitrary detention and right to counsel upon detention.

It is clear that the head of the judiciary found that the pendulum has swung too much in favor of protecting society and there is a serious imbalance with regard to the rights of an individual person.

The learned Chief Justice called for a re-evaluation and a revisit of these issues.

The Human Rights Commission of Malaysia has also studied these issues and have called for reform in this area.13

The law: arrest, detention and remand

There are specific Constitutional safeguards enshrined in the Constitution to protect the personal liberty of every person in this country. For our purposes, art 5 of the Constitution provides precise safeguards for an arrested person.14

In that light, s 28 of the Criminal Procedure Code (‘the CPC’),15 which deals with the arrest of a person, states that

No Police officer shall detain in custody a person arrested without a warrant for a longer period than under all circumstances of the case is reasonable.

The section goes on to state that:

Such period shall not in the absence or after the expiry of a special order of a Magistrate under section 117, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court.

There is a very strict embargo on the police. They are not allowed to detain a person for a period longer than reasonable, and in any event not beyond 24 hours.16 The discretion to further detain a person is bestowed only on a Judicial officer. The separation of powers clearly is in place here to ensure a proper check and balance.

In the words of KC Vohrah J, one of our more highly regarded and respected judges,

It will be noted that sections 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution17

Though the discretion to detain an individual is transferred to a Magistrate, it is not without fetters and the strict requirements of the law.18

The case of Re The Detention of R Sivarasa & Ors19 highlights some of the requirements laid down by the law. Sivarasa was arrested under s 27A(1)(c) of the Police Act, for the offence of meeting unlawfully or failing to disperse on the order of the police.

He was arrested20 and detained for more than 24 hours. The police sought a remand order from the Magistrate and obtained one for a period of 4 days.21 After the expiry of the order, the police sought a further remand order for another 10 days,22 which the Magistrate allowed. The case was taken up on revision that very day, 13 November 1996 at 3.15 pm. The High Court fixed the application for full arguments on the next day and after hearing both the Deputy Public Prosecutor and counsel for the accused, the remand order was set aside and Sivarasa was released.

It is the writer’s view that if individuals meet without police permits or refuse to disperse, these are not offences, if at all, that justify their remand. In fact the learned judge in Sivarasa‘s case posed the question,

In other words why was there a need to detain each and every of the 10 suspects?23

The proper course is for that individual to be charged with the offence and not to be detained, as a form of punishment.

In Sivarasa‘s case, the Magistrate ordered the remand of the arrested person even without satisfying herself whether there was a reasonable suspicion that justified the arrest as required by law.

As the learned Dato’ KC Vohrah J held,

I cannot see anywhere anything in the application — even if one were to assume that copies of the entries of the diary had been produced to the Magistrate — to show a basis for the arrest and detention of each of the 10 persons, be it on even a ‘reasonable suspicion’.24

Even the mandatory requirement under s 117 that the police officer making the accusation

shall forthwith transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before such Magistrate.

was not complied with. It was tantamount to an unlawful remand.

Section 119 of the CPC specifically states what must be entered in the diaries. There is no ambiguity.

In fact, two years before Sivarasa was remanded, the High Court had in another case, Polis Di Raja Malaysia v Keong Mei Cheng Audrey,25 affirmed by the Court of Appeal, set down what the Magistrate must be supplied with before a remand order can be made. The learned High Court judge held,

These details provide the true proceedings in the investigations in compliance with what is required by s 119(1) of the CPC. A copy of this is what the officer must supply the Magistrate under s 117.

The learned judge went on to state what the law is.

As a matter of law, not only must the diary be in the form specified by s 119 of the CPC but it must also be replete with grounds indicating the information against the accused (respondent) is well founded.26

Anything short of that again is not acceptable as otherwise the police will be on a frolic of their own and the citizens and subjects (and foreigners) can be in grave danger of losing their liberty if not their limb.

The police officers and Magistrate in Kuala Lumpur in Sivarasa‘s case did not follow the law as clearly laid down.27

More recently in Re Syed Mohammad b Syed Isa; Mohd Rosdi bin Jaafar; Thiagarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors28 Abdul Wahab Patail J, in reviewing applications for further detention, clearly reaffirmed the position:

Section 117(iii) CPC provides that in authorizing remand the Magistrate shall record his reasons for doing so. The requirement is mandatory — Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611, [1997] 1 CLJ 471. Thus in Saul Hamid Pakir Mohamed v PP [1987] 2 CLJ 257, Edgar Joseph Jr, J (as he then was), held that the President of the Sessions Court had erred when he failed to record his reasons for extending the order for remand. It underlines the need to consider the application carefully.

 It is imperative to record his reasons so as to enable review of the remand order if occasion should arise, as when an application for further remand is made. Failure to do so may gravely prejudice the person so remanded: Daulatram AIR 1933 Or 315.

 Remand orders should not be taken lightly or as a mere formality (Artatran AIR 1956 Or 129). A bare statement accepting the reasons given in an application is thus insufficient compliance with section 117(iii) CPC. It does not uphold the spirit and substance of section 117(iii) CPC.

 The importance of these reasons is best understood from the perspective that a remand order deprives a person of his personal liberty, a fundamental right guaranteed by the Federal Constitution.

In these cases the police and Magistrate breached the law. If it were a common citizen who had breached the law, he would have been arrested and charged. However the police officers and Magistrate concerned did not suffer any form of punishment for their wrongdoing. It is common ground that persons entrusted with such powers and who are well versed in the law have a higher duty to comply with the law and if they breach the law and the trust reposed in them, the degree of accountability on their part must be much higher.29

Because this has not been the case in Malaysia, these breaches continue with impunity.

The general response of the more senior police officers when confronted with the question on why the police make such arrests and decide unnecessarily to apply for further remand of a person under s 117 for 14 days and sometimes even longer, is that it is not they who remand the accused but the Magistrate. The investigating officer only makes a request as to what he needs. This surely cannot be a satisfactory answer to justify improper requests for remand.

The Magistrates are usually junior judicial officers, often just qualified and with hardly any experience and a limited knowledge of the big picture and the importance of their role. More often than not, it becomes a mere rubber-stamping exercise.30

Both parties, the Magistrate and the investigating officer, claim immunity for all their actions and orders as provided for by law.31 This cavalier attitude compounded by the immunities, perpetuates the problem.32

Therein lies one of the main reasons why the abuse and injustice continue.

Magistrates and the members of the Police Force fail to appreciate that,

Remands should not be taken lightly as a matter of mere formality (see for example Artatran AIR 1956 Or 129).

By comparison, sentencing a person, whether to a fine or a term of imprisonment, is a less onerous burden since it is only done with the confidence that the person being sentenced has been proven beyond reasonable doubt to be guilty.

A remand order, on the other hand, must always be considered along with the knowledge that the person sought to be remanded has not been proven beyond reasonable doubt to be guilty, and is entitled to be presumed to be innocent.

It must always be borne in mind that be it a remand or imprisonment, the subject is deprived of his liberty. It follows that a remand order cannot be based solely on that a serious crime has been committed and the [person] brought before the Magistrate seems to be a suspicious person, but must be based on some degree of confidence that he is the wrongdoer, that his remand is necessary to complete investigations and which cannot be achieved if he is released on bail. The onus is however, upon the prosecution to advance the grounds.33

The Courts have given clear guidelines:

  1. Section 117 requires more investigations to be carried out before an arrest. An arrest should not be the first step in an investigation, except in cases of an arrest in the course of a crime.34
  2. There must be grounds for believing that the accusation and information is well founded, suspicion is insufficient.35
  3. The entries of the investigation diaries provide the foundation upon which the reason or ground supporting the application are identified and weighed.36
  4. The police officer has a mandatory duty to transmit to the Magistrate a copy of the entries in the diary.37
  5. The investigation diary must be in the form stipulated under s 119 CPC.38
  6. The police must account for the period between the arrest and appearance before the Magistrate before a further remand is ordered.39
  7. If the police had previously obtained a remand order, but no diligent investigations were carried out, it is a correct exercise of the Magistrate’s discretion to refuse the application … 40
  8. The police must show that the remand of the arrested person is necessary to complete investigations, which cannot be achieved if he is released on bail.41
  9. Since completion of investigations is the purpose of the application under s 117(i) CPC, it cannot itself be the reasons or grounds supporting the application42. There must be something more than a mere assertion that investigations cannot be completed.
  10. Section 117 does not authorize detention of a person at leisure to conduct further investigations as to his involvement in other offences.43
  11. To remand a person until he gives a s 113 statement44 only makes the statement inadmissible and does not satisfy the onus on the police to show that a remand is necessary.45
  12. Grounds such as the remand is necessary for the suspect to be questioned, interrogated or for purpose of obtaining a cautioned statement are not valid.46
  13. If no more useful progress can be achieved but the person cannot yet be charged, or that further remand is not necessary because investigations are completed, he should be released on sufficient bail terms to ensure his attendance when required.47
  14. To check the suspect’s background, his friends and the stolen goods, begs the question of the quality and value of police information and in any case does not require remand of the arrested person. Similarly, completion of investigation papers is purely clerical work on the part of the police.48
  15. The police must satisfy the Magistrate why the accused person should be held in police custody and not in prison custody.49

Other safeguards, like the constitutional safeguard of the arrested person’s right to consult counsel has also been whittled down.

In Ooi Ah Phua‘s case,50 Suffian LP in the Federal Court held that

The right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest… . The right should not be exercised to the detriment of any investigation by the police.51

In most cases, the counsel is not allowed to see the arrested person until investigations are completed. In some cases where access is given it is in the presence of the police officers.

What seems to have been missed is the substance. As Raja Azlan Shah J (as he then was) put it,

It is at the police station that the real trial begins and a Court which limits the concept of fairness until the period of police investigations are completed, recognizes only the form of the criminal process and ignores its substance.52

To even get access to an arrested person before a Magistrate in a remand proceeding is difficult, although the courts have clearly said that:

… In all cases, the police should, upon request, cooperate by keeping relatives of an arrested person or his counsel informed of the dates, times and the name of the Magistrate from whom a remand is going to be sought so as to enable counsel to appear before the Magistrate and apply to be heard.53

In reality, what actually happens is that the family members of the arrested person wait around the police station hoping to get a glimpse of the arrested person as he/she is being escorted to the Black Maria and immediately call the lawyer who is on standby at the Magistrates court of that particular district where the police station is located. Sometimes lawyers wait until the afternoon for the arrested person to be brought.

There have also been cases where the arrested person is brought and taken through a back door and not through the main entrance of the chambers. The remand order is given and the lawyer appointed is still waiting at the main entrance or court.54

Then there is what is called ‘chain-smoking remand orders’ — where the arrested person is taken to one Magistrate for 14 days, then to a different Magistrate for another 14 days and it continues like that. The writer knows of several instances where this has happened and has personally had conduct of a case where a habeas corpus application was filed as the arrested persons were detained for over 100 days. As soon as the date was fixed for hearing of the habeas corpus application, the arrested persons were released on bail and two of them charged. The High Court did not proceed with the application as it had become academic.

These types of abuses continue to this day, making a mockery of the safeguards afforded by the Constitution and the CPC.

The Magistrate is not informed that this arrested person has been kept in detention for more than 100 days. He only concerns himself with the investigation before him and not what investigation has been done in the various police stations.55

Abdul Wahab Patail J has held that,

To restrict the application of s 117 detentions to only 15 days to dispose of all matters relating to any report made before arrest ignores the fact that the alleged offence may be committed and reported in different police districts and police stations, and as a result falls under the jurisdiction of not only different police stations but different police districts and investigation officers in the ordinary performance of their duties are properly independent.56

With due respect, the writer disagrees for the following reasons:

  • The Constitution is the supreme law of the land. Article 5 is framed to ensure that no person is deprived of his life or personal liberty save in accordance with the law. Article 5(4) provides that a person shall not be detained beyond 24 hours without the Magistrate’s authority. Parliament has clearly stipulated in s 117 of the CPC that the Magistrate can only authorize the detention of an accused for a period not exceeding 15 days. It does not specify how many Magistrates or how many police officers or how many remand orders can be made but it does specify that ‘a person shall not be detained… ‘ It is clear from a plain reading of the Constitution that the intention of the legislature is to limit the detention of the accused to no more than 15 days at any one time. Any other interpretation will render illusory the protection provided for under the Constitution and the CPC.
  • Even in the case of a multiple offender, there is no need for the accused to be remanded and sitting in the police station while the police investigate. He can be released on police bail and be required to come back to the police station at any time for whatever reason the police may need him. As pointed out earlier, the police must investigate and then arrest. Not the other way round.

‘The liberty of the subject should not be sacrificed for administrative expediency’57

  • Today the police are equipped with computers and cutting-edge technology and forensic ability. They are in touch with each other throughout the country. They should be more efficient in law enforcement and it should not be at the expense of a fundamental right to personal liberty.
  • Our whole criminal jurisprudence is based on the presumption of innocence. In Khoon Chye Hin v Public Prosecutor58 Thompson CJ quotes Holroyd J:59

It is maxim in English law that it is better that ten guilty men should escape than that one innocent man should suffer.

Thomson CJ went on to hold that,

In other words it is but another way, perhaps a vivid way, of enunciating the presumption of innocence.

How then can one justify the detention of a man presumed innocent for a continuous period of remand of over 100 days on the basis of a variety of reports in different districts?

It must always be remembered that when a person is arrested and remanded for a long period of time, a social stigma immediately attaches to him, his friends desert him, his business and work is affected, his right to livelihood jeopardized, his creditors close on him, he is mentally tormented and put to the expense of engaging a lawyer. It is no consolation that he may turn out to be totally innocent after the police have completed their investigations.60

  • Where does one draw the line? 15 days each for different states or for different districts or for different police stations or different divisions (like special branch, commercial crime or criminal investigations) or different units or different investigating officers in the same police station or different reports even if it is under the same investigating officer? As a result a person can be detained for long periods of time almost indefinitely in our country on this basis without accountability.

The ‘police’ means the whole police force for the purposes of the Constitution and the CPC. Each police personnel is an agent of the whole force. The principal through its agent is only allowed, pursuant to s 117 of the CPC, a remand order/detention of the accused of a maximum period of 15 days, 14 of which must be by way of a Magistrate’s order. Each agent cannot have 15 days based on their various investigations all over the country. The whole basis of prohibiting the police from detaining a person beyond 24 hours and a Magistrate from remanding a person beyond 14 days, should not be thwarted by procedural gymnastics.

  • There are other specific legislation that allow for long periods of remand and detention.61 These statutes can be resorted to if the threat to society is so great. It is not in the interest of society and it was never the intention of legislature to give the power to the police and Magistrates to remand a person for more than 15 days under the general provision of s 117 of the CPC.

Abdul Wahab Patail J has taken the view that the proper way to avoid abuse is by the courts applying s 117 strictly and exercising its discretion to remand under s 117 not solely by the demands of convenience of the investigative and prosecution authorities, but by balancing such needs against the fact that any remand order is a restriction of a fundamental liberty against a person who has not been convicted of an offence.62

Unfortunately this is precisely where the system fails. Even when there is only the power to decide on remanding an accused person for 14 days leave alone ‘chain smoking orders’, the Magistrates are too young and inexperienced and the High Court is normally too taxed to entertain an application for revision.

To relate a typical incident — the writer recently appeared before a Magistrate in PJ to contest the request from the police for further remand (a chain smoking order). The first thing that struck the writer was the Magistrate’s youth. She seemed younger than his chambering student. Throughout the proceedings she did not look up once. She stared at the papers in front of her and gave the order the police asked for, even after Sivarasa‘s case was extensively quoted and brought to her attention. To her credit, she recorded her reasons for giving the remand order and read it aloud as follows ‘Reman diberi atas alasan merujuk kertas siasatan kepada TPR’63 — which on the face, is wrong in law.

On that basis, the writer rushed to the Shah Alam High Court and arrived at 11 am. He asked to see the Judge who was in chambers and related to the interpreter what had transpired in the Magistrates court. The Judge sent word through the interpreter that she would not see counsel without a letter. With great difficulty a letter was prepared narrating all the events that had transpired, and handed in by 2.15pm. The writer was informed that there was a farewell tea party for a staff in the Judge’s Chambers and was requested to come next week to which he replied, that it would be academic by then. The writer waited and the Judge finally came out of chambers and met the writer after 4.15pm only to say that it was too late, nothing could be done. The writer politely requested the Judge to look into this so that it would not happen to another citizen. That in a nutshell is the present state.

This brings out the next important point, delays and the attitude of those in authority. It has been well stated by Mr DR Karthikeyan, Director General of the Indian National Human Rights Commission that

The biggest contributing factor for the denial of human rights to a majority of people is ‘delay’ — delay in taking decisions, delay in communicating decisions, delay by those holding any authority at various levels in government. Most public servants are insensitive to their fellow citizens… Unless we devise a system where delay in the decision-making process is avoided, millions of people will remain victims of human rights violations… We can ensure better observation and protection of human rights only by increasing people’s awareness about their rights, and sensitizing security forces and public servants of their duties.64

There are many abuses that are never made known as a result of persons being detained without adequate safeguards. The statutory declarations of Munawar Anees and Meor Abdul Razak relate frightening experiences in police custody. It is the writer’s humble view that the safeguards did not work and the judiciary failed in these instances to protect the basic rights of these persons. Their statutory declarations stand as a reminder of what can happen.

It must be remembered that

In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of a police station or lockup.65

High Court judges have time and time again reminded the police and Magistrates of their role. Sharma J in Public Prosecutor v Law Say Seck & Ors66 said,

It may be that there is no justification for me to say that the police investigating agency in our country has not yet acquired a reputation of being proof against the temptation of attempting to secure confessions by questionable methods. I might say that such means and methods are capable of being used and it is the duty of the magistrate to see that they devote their attention to all the safeguards provided for ensuring that the confessions they record are truly voluntary.67

The warning given by the Syed Idid J in Polis Di Raja Malaysia v Keong Mei Cheng Audrey68 has not been heeded.

Anything short of that again is not acceptable as otherwise the police will be on a frolic of their own and the citizens and subjects (and foreigners) can be in grave danger of losing their liberty if not their limb.

And that of Lord Denning,

So long as those powers are properly exercised, they are safeguards of freedom. But powers may be abused, and if those powers are abused, there is no tyranny like them.69

The abuses

It must be appreciated that the police have extensive powers. They have power to detain people and keep them in places to which others have no access.

In the words of Anand J of the Indian Supreme Court,

Death in police custody is not generally shown in the records of the lockup and every effort is made by the police to dispose (sic) of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher officers turn a blind eye to such complaints. Even where formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting in death, as the police lockup where generally torture or injury is caused is away from public gaze and the witnesses are either policemen or co-prisoners who are highly reluctant to appear as prosecution witnesses due to fear of retaliation by the superior officers of the police… since they are in charge of the police station records which they do not find difficult to manipulate.70

The same situation exists here.

Therefore it is almost impossible to secure evidence of what transpires in the police station by way of witnesses or even documents if the police themselves do not cooperate. Taking the matter to court does not help.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a (sic) suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lockup, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture.71

The safeguard that an arrested person has a right to consult a legal practitioner under art 5(3) has as mentioned earlier been diluted by judicial pronouncement in Ooi Ah Phua‘s case,72 which allows delays and restrictions to this right.73

No one is allowed to have access to these individuals unless the police say so — not even an advocate and solicitor of the High Court of Malaya who is an officer of the court.

The way remand orders are obtained as well as the lack of cooperation by senior police officers make it extremely difficult, for even the safeguards against detention beyond 24 hours to be effective.

As a result many who are clothed with power and authority, continue to commit crime and injustices on individuals as they please and continue to enjoy the protection of the law with no or very limited recourse on the part of the victim.74

Though the writer appreciates that there are honorable police officers and magistrates who do their best to uphold and enforce the law, there are a great many who do not.

Therefore, all the writer can do apart from sharing his own experiences is to highlight what has happened to people who have been arrested, those few of which have been reported in the press. It cannot be proven who committed the crime. The conclusion is yours to make based on your personal experience and from the brief facts that we are allowed to know.

On 13 April 1993, the New Straits Times (NST) reported — Police said teenaged fisherman Manaf Mat died while in custody of prison authorities and not under police custody. Manaf died in Alor Star General Hospital on 8 February 1993, nine days after he was arrested for alleged drug possession.

On 13 May 1994, the NST reported — Police detainee found dead in cell. A 45-year-old detainee was found dead inside the Klang police station lockup. Lim defaulted supervision after serving sentence for dadah offences in 1990.

On 15 May 1995, the NST reported — An air-conditioner mechanic detained by police under the Emergency Ordinance 1969 to facilitate investigations into a financial institution break in March died under detention.

On 19 May 1995, the NST reported — City Police Chief, Datuk Ismail Che Rus has denied that the death of a 40-year old air-conditioner mechanic while in police custody was due to internal bleeding.

On 11 October 1995, the NST reported — Attorney-General, Datuk Mokhtar Abdullah ordered a judicial inquiry following dissatisfaction with police failure to identify the person or persons responsible for the death of an air-conditioner mechanic in a police lockup.

On 21 November 1995, the NST reported — A police officer told the Magistrate’s court that the suspect identified as detainee No 37/95 was found dead, naked and in half-kneeling position at the Police Remand Centre, DSP Paul Keong, who is PRC commandant said.

On 22 November 1995, the NST reported — A detainee was in the interrogation room for over 96 hours at the police remand centre before he died several days later.

On 23 November 1995, the NST reported — A detainee at the Police Remand Centre complained of being assaulted at an interrogation room where he had been kept for four days. The complaint by detainee Lee Quat Leong was made to L/Cpl Khalid Ahmad who told the court that Lee however, did not tell him who had assaulted him.

On 24 November 1995, the NST reported — A teacher, Daniel Hasni Mustaffa, who is Lee’s friend and former neighbour said, Chief Inspector Ng Koh Siew denied the deceased was assaulted while in detention.

On 25 November 1995, the NST reported — Mechanic Lee Quat Leong who died while being detained at the police remand centre had succumbed to subconscious bleeding caused by violent blows on many parts of his body, a forensic pathologist told the Magistrate’s court.

On 29 November 1995, the NST reported — Eleven policemen including the City Deputy Head of Criminal Investigations were criminally involved in the death of mechanic Lee Quat Leong at the police remand centre.

On 18 January 1996, the NST reported — A detainee collapsed in the lockup of the District Police Headquarters and died on the way to the Tengku Ampuan Rahimah Hospital in Klang.

On 4 July 1997, the NST reported that a 25-year-old man who was detained for suspected car and motorcycle thefts was found dead in a toilet at the Cheras Police Headquarters.

On 21 December 1997, the New Sunday Times reported that the Perak Police Chief Deputy Commissioner, Mariman Mohd Taib said the police were awaiting post-mortem and chemist reports pertaining to the death of Othman Mohd Hashim in a police lockup in Parit. Othman, who was detained for alleged theft, was found hanged with a towel in a lockup.

On 2 September 1997, the NST reported that a second-hand car dealer, R Shanmugam, who was found dead at the Kampong Tawas Police Station lockup, was in police lockup for 66 days. The death certificate issued by the hospital authorities stated he died of hanging.

On 10 February 1998, the NST reported that the Selangor police offered to record statements from seven Indonesian workers who claimed to have watched their colleague being assaulted by two plainclothes detectives. As a result, the victim died in police custody at the Seri Kembangan Police Station.

On 4 March 1998, the NST reported that police said that the cause of death of the 36-year-old labourer while in police custody at the Bentong District Police Headquarters was liver failure. However, the victim’s wife claimed that there were a few bruises on her husband’s body and hands and legs.

On 15 April 1999, The Sun reported that police are investigating the death of a 20-year-old drug suspect at the Nilam Puri Police Station two hours after his arrest. Police were about to take him to the Kota Bahru Police Headquarters when they found him dead in the lockup.

On 17 March 2000, the NST reported that the Bar Council today called for an inquest into the death of a man while in police custody four months ago. Francis Nathan, 21, who was held for questioning in connection with dadah related offences, died at the Kuala Lumpur Hospital on 26 October last year.

On 29 April 2000, The Sun reported that a 22-year-old assistant driving instructor who drowned in the Malacca river four years ago after escaping from police custody was found to have been handcuffed at the time of his death, a sessions court was told today.

On 20 May 2000, The Star reported that a widow who is suing the police and the government claimed that her 31-year-old husband was taken from her house by policemen in August last year and brought back ‘as a corpse’ eight days later.

On 20 May 2000, Berita Harian reported that a woman whose husband died while in police custody at Rawang Police Station last year, filed a summons against the Royal Malaysian Police Force and the government of Malaysia for damages amounting to RM 682, 400 (Pada 20 Mei 2000, Berita Harian melaporkan seorang isteri yang suaminya mati ketika dalam tahanan polis di Balai Polis Rawang tahun lalu, mengemukakan saman menuntut gantirugi sebanyak RM 682, 400 daripada Polis Diraja Malaysia (PDRM) dan Kerajaan Malaysia).

On 13 June 2001, Harian Metro reported that a detainee was killed from injuries to the head, ribs and other parts of the body as a result of being assaulted by other detainees in the Setapak Police Station lockup — (Pada 13 Jun 2001, Harian Metro melaporkan seorang tahanan terbunuh apabila cedera di kepala, rusuk dan beberapa bahagian lain akibat dipukul sekumpulan tahanan lain di lokap di Balai Polis Setapak, di sini).

On 26 January 2002, the NST reported that a man has sued the officer in charge of the police station in Parit, Perak and two others for negligence involving the death of his son in the police lockup a day after his arrest on Dec 16, 1997.

On 5 August 2002, Malaysiakini reported that Suhakam had begun probing the mysterious deaths of two suspects detained at the Putrajaya police station lockup. On June 21, a 20-year-old waiter died at the Putrajaya Hospital after he was sent there from the lockup. Another suspect died at the Putrajaya Hospital on July 28 after spending more than a week at the lockup.

On 10 February 2003, The Star reported that according to police, a suspect who fell to his death after questioning at the district police headquarters had minutes earlier confessed to killing a bank cashier.

On 14 March 2003, The Star reported that a Barisan MP had voiced his concerns over the image of the police, citing cases of criminal acts committed by police officers including having sex with female detainees. He said statistics between 2000 and last year showed 44 detainees died in police detention. These should not be regarded as isolated cases. He proposed the setting up of a special commission to conduct research on how to improve the force, and the formation of an independent body to investigate and prosecute police who had committed offences.

On 8 April 2003, The Star reported that the Inspector-General of Police said that six policemen, including one or two ‘senior police officers’ were found to have abused their powers during a raid at the Palm Court apartments. The police had rounded up 196 people including 186 Indian nationals, most of whom were IT experts. The Indians had complained of physical abuse by the police and some claimed that their passports were defaced.

There is an expectation of society that the government and their law enforcement functionaries deal with criminals in an efficient and effective way and bring to justice those involved in crime. But the cure cannot be worse than the disease itself.75

As the Supreme Court of India reminded members of the judiciary,

The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society.76

A core problem

In remand proceedings, the problem seems to persist. It continues even though judges have decided on, pronounced and declared the law. Most, if not all decisions on remands, are made by Magistrates. The checks and balances do not seem to be working. There is something amiss.

In Re The Detention of R Sivarasa & Ors,77 KC Vohrah J held,

It will be noted that ss 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution.

However, Magistrates are part of the judicial and legal service, as provided under art 132 of the Federal Constitution. The service is run by a commission, of which the Attorney General is a member.78 The Attorney-General however, is known as the head of the judicial and legal services.79

The police conduct the investigations and the Attorney General’s chambers prosecute. The AG’s chambers work closely with the police (quite rightly) and are very much involved and often times direct the investigating officers.

How can Magistrates be expected to adjudicate fairly on remand applications, when the application is made under the directions of their head/chairman? The Magistrates may fear that their career advancement in the judicial and legal service may be affected apart from being penalized by way of transfers.

Magistrates often serve as Public Prosecutors and are interchanged, which compounds the problem. It is often their former colleagues or Senior DPPs or division heads of the AGs chambers who are directing the investigation or who appear before the Magistrate, placing the magistrate in a difficult position, especially in light of the great possibility that they may go back into the AGs chambers. Magistrates who have been DPPs would have worked very closely with the police and formed close ties and these factors may be weighing on their minds when deciding on remand applications.

In the case of Cheak Yoke Thong v PP,80 an application was made asking the Magistrate to disqualify himself from hearing the case on the ground that the Magistrate would be biased because the Magistrate is a member of the judicial and legal services of which the Public Prosecutor at whose instance the charge against Cheak was preferred, is its head. The Magistrate refused the application. But on the day before upon a similar application in another case, the same Magistrate allowed the application and disqualified himself.

Salleh Abas FCJ held:81

With regard to actual or likelihood of bias, the learned Magistrate said in his grounds of judgment that although he feared the Attorney-General, he gave an assurance that he would never give in to the Public Prosecutor’s convenience…

We see no reason not to accept his assurances, unless he did not mean what he said. After all the fear that he entertained is a self induced and misguided fear…

… The Attorney General today is a civil servant. He belongs to the judicial and legal service and being the highest paid officer in the service it is natural that he assumes the leadership in the service and is thus referred to as head of the service for better or worse…

… If the submission of Cheak is accepted it will mean that all Magistrates and presidents of sessions courts in this country will have to disqualify themselves from hearing any criminal prosecutions at the suit of the Public Prosecutor. Such a situation will cause a failure of justice as the whole administration of justice in the subordinate courts will come to a standstill. The law will not be so powerless as to allow the situation to develop. The doctrine of necessity can always be invoked to prevent it from happening. Just as ex necessitate the Yang DiPertuan Agung is authorized by the Constitution to declare a state of emergency when he is satisfied that an emergency situation exists, similarly ex necessitate the Magistrate is competent and obliged to adjudicate even though he is prima facie disqualified for interest or bias…

… The learned judge who heard the appeal held that the Attorney General is not the head of the judicial and legal service, that it is not his decision alone which decides the fate of the Magistrates career in government service because the Magistrate together with all the other officers in the judicial and legal service is under the jurisdiction of the Judicial and Legal Service Commission. We see no reason to disagree with him.

The key feature in a democratic government is the separation of powers. Separation obviously means that it is separate and independent, on an objective, not subjective assessment. Any person exercising a judicial function must adjudicate between individual and state and individuals inter se. That person must be separate from the other organs and independent for the system of checks and balances to work.

Even in civil law, as stated in the leading textbook on administrative law,82 the principle that bias disqualifies an individual from acting as an adjudicator flows from two fundamental maxims, that a man should not be judge in his own cause, and secondly, justice must not only be done but seen to be done.

The first maxim applies not only when the adjudicator is himself a party to the dispute but also when he has some interest therein. According to the second maxim, it is not necessary to prove that a particular decision was in fact influenced by bias. It is sufficient if there is reasonable suspicion about the adjudicator’s fairness.

The fountain of administrative justice must not only be pure but it must also enjoy public confidence and credibility.83

In the words of Lord Denning,

Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: the judge was biased.84

The Magistrate may not be actually biased but it is the perception and public confidence that is being addressed.

If this is the position in civil law, what more in criminal law, where the personal liberty of an individual is at stake?

Conclusion

The substantive law as to how and when a person can be arrested, the constitutional safeguards as to how and for how long a person can be remanded, are fair and just. These sacred and cherished rights of life and personal liberty have been enshrined in the Constitution.

The expression ‘life or personal liberty’ has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.85

The problems lie in the structure, procedure, delay and the personalities who carry out these functions. The police are given wide powers affecting the rights and liberty of individual citizens. Powers of arrest, search, seizure, detention and application for remand and police bail, mark several stages in executive police action which afford vast scope for misconduct by police personnel at the operational level.

 In fact, recently there have been reports of police officers being involved in crimes, a whole team of them. How could this have gone undetected for so long? Even the highest-ranking police officer, the former Inspector General of Police86 was charged for inflicting bodily injury to the former Deputy Prime Minister, which received international publicity and provoked concern. The assault87 and battery was initially denied. But after a Royal Commission of Inquiry was formed in view of the growing international and local pressure, the former IGP himself admitted his guilt. He was charged and convicted of the crime committed on a person at the complete mercy of the police while in custody. How could this have happened?

What about those who kept silent and acquiesced to the crime? They were never brought to justice. They continue to be our law enforcers. If a former Deputy Prime Minister can be subject to such a crime at the hands of the highest ranking officers in the presence and/or knowledge of other high ranking officers in our police force, what about a mere citizen in the hands of the lower ranking officers and constables?

If functionaries of the Government become law breakers, it is bound to breed contempt of the law and would encourage lawlessness and every man would have a tendency to become a law unto himself thereby leading to anarchy. No civilized nation can permit that to happen.88

The safeguard in requiring a Magistrate to consider any application by the police, is at present ineffective, as they do not understand, appreciate or are unable to play their vital role in remand proceedings.

There is no proper accountability.

That is why, apart from denying a person his freedom and liberty, and subjecting him to the humiliation and distress, the further remand of a person in police custody after 24 hours should be the exception rather than the norm that it has now become.

Recommendations

The recommendations that follow seek to redress some of the weaknesses in the system, highlighted in this paper.

  • Structure

It is of fundamental importance to ensure that the doctrine of separation of powers applies to any person or body who adjudicates disputes between individual and state and individuals inter se. Therefore, the most important recommendation is to truly have a separation between the legal service headed by the Attorney-General and the judicial service headed by the Chief Justice. Its importance cannot be overemphasized.

  • Procedure
    • A fixed time be given every day for remand applications to be heard for specific police stations in a particular court only. This list must be made public. Remand hearings must be conducted in open court with the decorum and seriousness it rightly deserves.
    • High Court judges to be available at short notice to hear an application for revision and ensure that the safeguards and law are being followed. There must always be a High Court judge designated and free to hear applications for revision orally on the very day or at the latest within 24 hours of the remand order being made.
    • The constitutional right of an arrested person to counsel be given immediate effect. The Magistrates or sessions court judges must ensure that the accused has access to his counsel at the remand hearing. In line with the Federal Constitution, this could be included in the IGP standing orders and the Courts’ Practice Directions.
    • The right of an accused person to consult and be defended by a legal practitioner of his choice is illusory if there is no privacy during that consultation. There must be a conducive environment for the arrested person to be able to tell his counsel how he is being treated and to give instructions on his case.
    • If possible, remand applications should be heard only by senior judicial officers (sessions court judges).
    • A person can only be detained by the police and Magistrate at any one time for a maximum period of 15 days but can be arrested any number of times and released on police bail with the requirement to present himself at the police station on and at a specific date and time.
    • Any person remanded under s 117 must be detained in a remand centre managed by prison authorities.
  • Sanctions/Accountability
    • Absence of proper supervision of police officers encourage abuse. When police officers feel that their activities are not monitored, they take liberties. Imposition of deterrent punishment on erring officers by departmental superiors can go a long way in enforcing norms of discipline and ensuring compliance of the law.
    • An effective internal self-monitoring system must be set up with some degree of independence and transparency in the police force.
    • There should also be adverse consequences for Magistrates who continue to flout basic procedure and requirements of the law.
    • Sanctions both civil and criminal for breaching the provisions of the law with regard to false arrest, detentions, remands and abuse by those in power must be imposed if it can be shown that they acted in reckless or total disregard of the law and the safeguards established by it. There must be severe consequences not only for those officers who commit the crime, but also those who knew of it and kept quiet. There must also be some disciplinary action taken against those who are in charge who could with reasonable diligence have found out. There must be a clear mechanism for this and a report, which must be tabled in Parliament annually.
    • External accountability is essential. There must be an independent and transparent board apart from the internal self-monitoring system. The board could comprise of representatives from Suhakam (one commissioner), the Bar Council (two members), Hakam (one member), Attorney General’s Chambers (two members), one member of Parliament, senior police officers (two members), the judiciary (two members). Its function is to monitor the abuses and recommend changes to the procedural and substantive law in this area. Ideally it should be chaired by a Commissioner from Suhakam who should preferably be a former judge.
    • Police abuse occurs mainly because of corruption, psychological pressures or over-zealousness. Every police officer must be required to undergo and pass a yearly psychological assessment, like that instituted in Australia for their police officers (Western Australia).
  • Training & Education
    • Respect for human rights should be incorporated into the professional ethics course of the police force. A board should be set up comprising two Commissioners of Suhakam, two members of the Bar Council and two members from the AG’s chambers to come up with a syllabus for inculcating these values into the members of our police force. Every police officer must realize that he is responsible for upholding human rights both in prevention of crime and in enforcement of the law.
    • 2 MLJ cxxix at clvi
    • A similar programme needs to be organized for all Magistrates and sessions court judges on a yearly basis.
  • Adequate remuneration and public recognition
    • Police officers should be adequately remunerated for the perilous jobs that they perform and those who execute their jobs well should be recognized and rewarded.
    • There should be a review of the salary scale of our police force, they should be paid well and rewarded both monetarily and by way of promotion for doing what is right. We must give them the proper motivation.
    • There should be a transparent and public system of rewards for the police officers deserving of the same. The public should be encouraged to play their part in writing in to praise the police officers who are doing an excellent job, well above and beyond the call of duty.
  • Redress for victims and public investigations to address public perceptions

Though not directly on point, this is relevant due to deaths of arrested persons while in remand. Some mechanism needs to be put in place to ensure the perpetrators of these crimes are brought to justice.

  • Death in police custody
    • A police report must be lodged by the investigating officer of what exactly transpired resulting in the death of the arrested person within two hours of the death.
    • Medical and forensic experts appointed by the deceased’s family must be given access to the body and allowed to be present throughout the post-mortem.
    • An inquest must be held immediately
    • The court must determine the cause of death with the aid of experts with the issue of culpability in mind. If the death is due to natural causes, the court should clear the police of any culpability, which must be done clearly, precisely and publicly. If the cause of death is not because of natural causes but due to beatings then all those who had custody care and control of the arrested person while in police custody must be charged for the offence. They will have to defend themselves in court. The officer in charge of the police station should be fined or disciplined in some way.
    • In order for this to be credible, just and transparent, the family of the deceased person should be allowed to adduce evidence and through counsel cross-examine all witnesses in an inquest before a decision is made.
  • Injury in police custody
    • The victim must be given immediate medical treatment
    • 2 MLJ cxxix at clvii
    • The victim must be given immediate access to his lawyer and family
    • A police report must be lodged by the investigating officer immediately or at the very latest within two hours as to how it happened and this report must be immediately made available to the victim or his lawyers.
    • The arrested person must be immediately placed in the custody of prison authorities or at the very least in the custody of another police officer in a different police station.
    • Civil and criminal sanctions will apply.
  • Reversing the burden of proof

The Law Commission of India in its 113th Report 89 recommended that the following rebuttable presumption be incorporated into the Evidence Act, which in the writer’s opinion would be an effective way to address the abuse of police powers. The Indian Supreme Court also called upon Parliament to incorporate the amendments suggested.90 The Law Commission recommended that in the prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the court may presume that the injury was caused by the police officer having the custody of that person during that period. This should apply both where injury or death is caused to a person while in police custody. We can include this rebuttable presumption in our Evidence Act 1950 under s 114.

Finally

Power tends to corrupt and absolute power corrupts absolutely.91 It is so often quoted but seldom really appreciated. We cannot place in the hands of any one person, absolute power over another. There must always be a check and balance. It is the balance that is difficult to attain. But if we have adequate laws and procedures in place, the proper checks and balances, effective safeguards for the individual, programs to educate on fundamental rights and personal liberty of human beings and to sensitize those entrusted with the power to detain and remand — we will help those in power stay clear of the temptation and corruption that power inevitably brings.

Slowly we will achieve that fine balance between respecting and protecting the individual’s human rights within the context of criminal proceedings and the interest of society in bringing criminals to justice.

We can then truly say, we are governed by laws not by men.92

 

 

1  Articleship, CLE (Malaya), CLC (IALS, UK), LLM (UK), MCIArb (UK), Mediator – Australia & Malaysia, Member of the Bar Council, Malaysia; Member of the Human Rights Committee of the Malaysian Bar; Appointed lecturer on Police Powers and Human Rights by Suhakam, the Human Rights Commission of Malaysia.

2 The writer does not share the view taken by Siti Norma FCJ in Mohd Ezam bin Mohd Noor v Ketua Polis Negara & other appeals [2002] 4 MLJ 449 at 514 that it means only ‘an invitation to look at the 1948 Declaration if one is disposed to do so…’ The writer is of the view that once Malaysia became a member of the United Nations, it pledged itself to achieve, in co-operation with the UN, the promotion of universal respect for and observance of human rights and fundamental freedoms. The UN General Assembly proclaims the common standard of achievement for all peoples and all nations, to the end that every individual and organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance both among the peoples of Member States themselves and among people of territories under their jurisdiction. As a Member State we must honour our pledge. Parliament, in line with that, enacted s 4(4) of the Human Rights Commission Act 1999 with the words ‘regard shall be’ not making it an option.

3 Under s 117 of the Criminal Procedure Code 1927 — hereinafter referred to as remand proceedings/orders.

4 PN Bhagwati at the Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23 February, 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House, at p 11.

5 ‘It must always be remembered that the freedom to which we aspire is freedom to govern ourselves under a system in which parliamentary institutions shall be exclusively representative of the people’s will’ — Tunku Abdul Rahman in moving the second reading of the Federal Constitution Bill on 15 August 1957 — Malaysian Constitutional Documents (2nd Ed) Vol 1 at p iv. Also see Cyrus V Das Governments & Crisis Powers (1996) The Malaysian Current Law Journal Sdn Bhd, Kuala Lumpur at p 69.

6 The Rt Hon Lord Denning, The Due Process of Law (1980) London, Butterworths, at p 101.

7 [1977] 2 MLJ 116.

8 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

9 Kumarappa-Lecture delivered at the TATA Institute of Social Sciences, Bombay, on 23 February 1985. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House at p 11-12.

10 [1987] 1 MLJ 383 at p 387.

11 To do this, the judiciary must always keep in mind the most important and general principle stated by John Stuart Mill in his Essay on Liberty that, ‘The only purpose for which power can be rightfully exercised over any member of civilized community against his will, is to prevent harm to others.’

12 Keynote Address by the Rt Hon Tun Mohamed Dzaiddin Hj Abdullah, Chief   Justice Malaysia, at the opening of the seminar entitled ‘A Practical Approach to Criminal Procedure’ on Tuesday, 15 October 2002 at Dewan Tun Hussein Onn, Putra World Trade Centre, Kuala Lumpur. [2002] 4 MLJ at i-lxiv.

13 The Human Rights Commission of Malaysia (Suhakam) decided that this should be one of the priority areas to be studied for the year 2000 and published a report entitled ‘SUHAKAM Law Reform Report: Rights of Remand Prisoners December 2001’ (hereinafter referred to as ‘the Suhakam Report’). The report raises several shortcomings of the present remand proceeding and has recommended changes to be made.

14 Article 5(1) — No person shall be deprived of his life or personal liberty save in accordance to law.

Article 5(3) — 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.

Article 5(4) — Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty four hours (excluding the time of any necessary journey) be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority …

15 Criminal Procedure Code (1927) FMS Cap 6.

16 It is worthy of note that Suhakam has recommended that a person be brought before a Magistrate within 24 hours as specified in the Constitution and ss 28 and 117 of the CPC, regardless of whether the 24 hours would fall within a Saturday, Sunday or Public Holiday. The liberty of the individual should not be sacrificed for administrative expediency.

17 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at p 619.

18 Section 117 in its entirety:

  • Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 28 and there are grounds for believing that the accusation or information is well-founded the police officer making the accusation shall forthwith transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before such Magistrate.
  • The Magistrate before whom an accused person is produced under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused person in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. If he has not jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction.
  • A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

19 [1996] 3 MLJ 611.

20 He was arrested with 66 other people in an alleged demonstration, which took place at Asia Hotel Kuala Lumpur on 9 November 1996.

21 Sivarasa and the others were remanded from 10 November 1996 to 13 November 1996.

22 The remand order was for another 10 days, which makes it the maximum period of remand that is permissible under the law for the Magistrate to allow. Bearing in mind the offence investigated it is difficult if not impossible to understand the legal basis the police had, for requesting further remand and of greater concern is how the Magistrate made the remand order. In many instances this injustice continues today.

23 KC Vohrah J in Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at     619.

24 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611at 619. See Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 at 221. However Shaik Daud J in the case of Audrey Keong v PDRM [1997] 3 MLJ 477 at the Court of Appeal stage took the view that the Magistrate should not at that stage concern himself with the legality or otherwise of the arrest but nevertheless affirmed the High Court’s decision on a different ground.

25 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296at 303.

26 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296 at 303.

27 In fact, in Sivarasa‘s case as well, the court went on to re-emphasize the point and held that failure to transmit to the Magistrate a copy of the entries was fatal — Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611 at 618.

28 [2001] MLJU 163.

29 Factors such as these are taken into account when sentencing a person.

30 In Suhakam’s report at p 7 it states ‘The hearing, in Kuala Lumpur, is conducted in the Magistrate’s Chambers and not in open Court. The arrested person is locked in a cell at a distance from the Magistrate and is unable to communicate either with the Magistrate or his counsel, if he has one. The arrested person in not in the same room as the Magistrate and cannot hear what is going on between the Police officer and Magistrate. The arrested person is not given an opportunity to challenge the information put before the Magistrate’.

31 An order of a Magistrate authorizing the detention of an arrested person beyond the period of 24 hours made under s 117 is a judicial act and cannot found a claim for damages against the Magistrate: Chong Fook Kam v Audrey Keong [1994] 3 MLJ 296 at 303 See also Hamid Ibrahim, Hamid’s Criminal Procedure (1994) Kuala Lumpur, Denning’s Book Centre at p 268.

32 In other jurisdiction like in India, Canada and Ireland the courts have ruled that the state is liable, sovereign immunity is not available for violations of fundamental right to life or basic human rights.

33 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

34 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

35 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

36 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

37 Re The Detention of R Sivarasa & Ors [1996] 3 MLJ 611.

38 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296.

39 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

40 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

41 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

42 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

43 Ibid.

44 Cautioned statement pursuant to s 113 of the CPC.

45 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

46 Re Syed Mohamed b Syed Isa; Mohd Rosdi bin Jaafar; Thigarajah a/l Palaniandy; Rajis a/l Seeni Deen & Ors [2000] MLJU 163.

47 Ibid.

48 Ibid.

49 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

50 [1975] 2 MLJ at p 198.

51 In fact in the case of Ooi Ah Phua v Officer-in-charge of Criminal Investigations Kedah/Perlis [1975] 2 MLJ at 198 the Federal Court went further and held that the right to file a habeas corpus was not the correct remedy. The writer is of the view that the Court should not and cannot take away a constitutional right afforded to every citizen who believes he/she is unlawfully detained. How much more unlawful can a detention be, if the detaining authority breaches the express right guaranteed under the Constitution?

52 Raja Azlan Shah J in the Federal Court in Hamid Bin Saud v Yahaya bin Hashim & Anor [1977] 2 MLJ 116 at p 118.

53 Saul Hamid v Public Prosecutor [1987] 2 MLJ 736 at p 740 as per Edgar Joseph J. In Suhakam’s report at p 7 it states ‘The hearing, in Kuala Lumpur, is conducted in the Magistrates Chambers and not in open court. The arrested person is locked in a cell at a distance from the Magistrate and is unable to communicate either with the Magistrate or his counsel, if he has one. The arrested person in not in the same room as the Magistrate and cannot hear what is going on between the Police officer and Magistrate. The arrested person is not given an opportunity to challenge the information put before the Magistrate’.

54 Suhakam in its report at p 9 recognizes this problem and recommends that all remand proceedings be held in open court. ‘The proceedings be carried out in open court with the arrested person in the dock and in a position to communicate with the Magistrate as well as counsel.’

55 Suhakam in its report at p 8 adverted to this problem and at p 10 stated that ‘Magistrates should inquire when the person was first arrested and whether he has been moved from one district to another and more importantly, how long he has already been in custody’.

56 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121.

57 Suhakam in its report at p 8 states ‘Suhakam is of the view that the liberty of the subject should not be sacrificed for administrative expediency’.

58 [1961] 27 MLJ 105 at 108.

59 Sarah v Hobson 1 Lewin 261.

60 PP v Tan Kim San [1980] 2 MLJ 98. Though here the learned judge, Harun J (as he then was) rebuked the police for charging first and then investigating, the same stigma attaches to a person arrested and remanded for a long period of time.

61 Internal Security Act 1960.

62 Dasthigeer b Mohamed Ismail v Kerajaan Malaysia & Anor [1999] MLJU 121 by Abdul Wahab Patail J.

63 Translation: ‘Remand is given on the basis that the investigation papers must be referred to the DPP’.

64 The Delhi Times, December 10, 1998. Also found in Noorjahan Baya, Human Rights and Criminal Justice Administration of India (2000) New Delhi, Upal Publishing House, at p 8.

65 DK Basu v State of West Bengal (1997) AIR SCC 610 at p 615.

66 [1971] 1 MLJ 199.

67 [1971] 1 MLJ 199 at 201 — The position where s 113 Statements under the CPC is inadmissible as evidence may go a long way in helping the police secure convictions by way of evidence rather than by confession. It has been suggested that if what is said by the accused cannot be used in court, it will encourage the accused to speak and tell of things that will assist police investigations — Tan Sri Harun Hashim, Vice Chairman of Suhakam.

68 Polis Di Raja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296 at 303.

69 The Rt Hon Lord Denning, The Due Process of Law (1980) London, Butterworths at p 101.

70 Neelabati Bahera v State of Orissa (1993) 2 SCC 746 also in (1993) AIR SCW 2366. Quoted extensively in the Indian Supreme Court case of DK Basu v State of West Bengal (1997) AIR SCC 610 at p 619.

71 DK Basu v State of West Bengal (1997) AIR SCC 610 at 620.

72 [1975] 2 MLJ at p 198.

73 Suffian LP ‘The right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyers on the one hand and on the other the duty of the police to protect the public from wrong doers by apprehending them and collecting whatever evidence that exist against them. The right should not be exercised to the detriment of any investigations by the police.’ [1975] 2 MLJ at p 198.

74 The writer is aware that not all members of the police force are doing this but there is a substantial proportion of them who do so and a substantial proportion who cover it up or refuse to take action against these ones who break the law. The proportion is sufficient to no longer be treated as an isolated incident.

75 Supreme Court of India in DK Basu v State of Bengal (1997) AIR SCC 610.

76 Ibid at p 620 — It is with regret that the writer notes that in a recent case of an inquest into the death of a person while in police custody, the lawyer holding a watching brief for the family of the deceased was charged with interfering with court proceedings pursuant to s 228 of the Penal Code and for criminal intimidation pursuant to s 506. The s 228 charge was eventually withdrawn by the Attorney General and the High Court discharged the lawyer of the charge under s 506 — Uthayakumar a/l Ponnusamy v Pendakwa Raya [2003] 3 AMR 592.

77 [1996] 3 MLJ 611 at p 619.

78 Article 138 of the Federal Constitution.

79 Per Salleh Abas FJ in Cheak Yoke Thong v PP [1984] 2 MLJ 119.

80 [1984] 2 MLJ 119.

81 Cheak Yoke Thong v PP [1984] 2 MLJ 119.

82 Administrative Law of Malaysia and Singapore (3rd Ed) by MP Jain, Malayan Law Journal, Butterworths at p 358.

83 Administrative Law of Malaysia and Singapore (3rd Ed) by MP Jain, Malayan Law Journal, Butterworths at p 358.

84 Metropolitan Properties Ltd v Lannon [1968] 3 All ER 304, at pp 310-311.

85 DK Basu v State of West Bengal (1997) AIR SCC 610 at 616.

86 Tan Sri Rahim Nor.

87 The Royal Commission of Inquiry heard evidence from a Government doctor who described the blows as lethal even after being told the meaning and effect of the word lethal.

88 Supreme Court of India in DK Basu v State of Bengal (1997) AIR SCC 610.

89 113th Report of the Law Commission of India.

90 DK Basu v State of West Bengal (1997) AIR SCC 610.

91 Lord Acton, in a letter to Bishop Mandell Creighton, 3rd April 1887 in Creighton L, Life and Letters of Mandell Creighton (1904) Vol 1, Ch 13.

92 Paper presented at a Seminar organized by the Malaysian Bar Council on Police Powers and the Rights of a Remanded Person on 26 April 2003, Kuala Lumpur, with participation from the Judiciary, Suhakam, Non-Governmental Organizations and the Malaysian Bar.

MLJ – Police Powers and Remand Proceedings
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