The Book of Prof Shad.docx

It should however be within the sight of the police

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privileged. It should, however, be within the sight of the police”. The unfortunate implication of the Tee Yam judgment is that the guarantee of Article 5(3) can be violated (a) not only by the ISA but by a subsidiary legislation under the ISA and (b) this can be done even in the absence of an explicit authorization in the ISA. (iii)Under recent amendments to the CPC, the right to consult with a lawyer has been fortified. New subsections (2) to (7) of section 28A provide that a police officer, before commencing any form of questioning or recording of any statement from an accused, has a statutory duty to inform the arrestee that he may communicate with a relative or friend or legal practitioner. The officer is required to give the arrestee a “reasonable time” for the consultation to take place. The consultation shall be within the sight but not within the hearing of the police officer. Pending the consultation the officer shall defer any questioning or recording of any statement. The officer has a duty to provide reasonable facilities, free of charge, to enable the right of consultation to be exercised. However, the above rights shall not apply if an officer, not below the rank of DSP, reasonably believes that the rights under subsections (2) to (7) are likely to result in an accomplice absconding, evidence being lost, witnesses intimidated or safety of other persons compromised. During judicial proceedings: The right to be represented in court, as opposed to consultation after arrest, was enforced strictly by the court in Saul Hamid v PP [1987] 2 MLJ 736. This is a real and substantive right and cannot be refused: Parasuraman Velu v Ketua Polis [2006] 5 MLJ 764. Under the Public Order Prevention of Crime (Procedure) Rules 1972 there is a right to be represented by legal counsel during proceedings before the Advisory Board. 27
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However, the right applies only in relation to lawyers qualified to practice in Malaysia: Re GG Ponnambalan [1969] 2 MLJ 263. 19 If an accused person is not represented by a lawyer, that does not invalidate the proceedings. It does not mean that the judicial proceedings cannot be commenced: Mohamed Abdullah v PP [1982] 2 MLJ 201. However the right to a lawyer refers to a reasonably competent lawyer. The incompetency of a lawyer is a ground for mistrial: Shamim Reza Abdul Samad v PP [2009] 6 CLJ 93 FC; PP v Chow Chuan Wang [1992] 2 CLJ 1242; Sankar v The State [1994] UKPC 1 PRODUCTION BEFORE A MAGISTRATE One of the important safeguards for personal liberty is that, subject to some exceptions, all arrests must be reported to the judiciary. Though the police have the power to arrest without a warrant when seizable offences are involved, 20 Article 5(4) requires that an arrestee shall within 24 hours (excluding travel time) be produced before a Magistrate and shall not be further detained without the Magistrate’s authority. This is also provided for in sections 28 and 117 of the CPC.
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