Arresting the illegal arrests – Art Harun

Arresting the illegal arrests – Art Harun

Wednesday, 20 May 2009 07:35am

©The Malaysian Insider (Used by permission) MAY 19 - In my article “Is the Malaysian Bar Pathetic?”, I asked the question, “who polices our police?” This question is brought to the fore recently when the police arrested five legal aid lawyers who were trying to see their respective clients at the Brickfield Police Station. The Scene On the night of May 7, 2009, about 14 persons assembled in front of the Brickfields Police Station. They were apparently holding a candle light vigil for Wong Chin Huat who were earlier arrested for the grave offence of sedition by suggesting to the public to wear black. It was a peaceful assembly. No shouts. No screams. Just some harmless activists wearing black holding candles. They were arrested. Some time after they were arrested, five young lawyers arrived at the police station asking to see their clients who were arrested earlier. Again. No shouts. No screams. Apart from the OCPD of course. Although he was within hearing distance from the lawyers, he had of course to use a loud hailer. The lawyers spoke softly. Nicely. They coaxed him. Pleaded with him. Even begged him. The OCPD asked them to disperse because according to him, the lawyers were assembling illegally. I must make a mental note to not go to the police station in future in a group of more than three. Because under the law, that is illegal assembly. Never mind my intention. Anyway, the lawyers argued that they should be allowed to see their clients. They were told that their clients have signed a form saying that they have waived their right to see lawyers. The five young lawyers – comprising four young women and one man – asked to see the alleged waiver form. The police did not show them. (Events would show later that the police were lying as the arrested persons never signed any such form). Finally, the OCPD lost his cool. He ordered the arrest of the lawyers. The lawyers were then arrested. The whole episode did not take place in Zimbabwe or Rhodesia (as it was previously known) during Ian Smith's apartheid rule. It happened on May 7 2009 at the Brickfields Police Station. Watch exactly what happened at Malaysiakini.TV. The Dungeon Treatment Their statements were taken. They were made to wear the lockup suit. One of the women was told that the lockup suit was not washed, for whatever reason. When they were being brought from one block to another, their hands were handcuffed. (Note: I think the police were mindful that drugs worth RM1 million could disappear from their own store room and so they were just taking precaution to ensure that the lawyers did not disappear too). The male lawyer was driven to another police station. In the car he asked where he was being driven to but the police officer said he did not know. Meanwhile, in the outside world, nobody, including his family, knew where he was. Efforts to locate him proved futile as family members and lawyers were given the normal run around from one station to another. He finally ended up at Taman Tun Dr.Ismail police station. The Absolute Outrage and the Condemnation About 200 hundred lawyers showed up at the Courts the next day to demonstrate their support. The Bar called an EGM on May 15 and about 1,400 lawyers attended. A resolution was passed to condemn the act of the police. In addition, the Bar Council was given the power to sue the police for the unlawful arrests. To cap it up, the Malaysian Bar demanded the immediate resignation of the Investigating Officer, the OCPD, the IGP and the Home Minister. My Two Cents' Worth of Verbal Diarrhoea The arrests were a blatant transgression of our fundamental rights. Article 5 of our Federal Constitution specifically provides that an arrested person shall have the right to legal consultation. The Criminal Procedure Code also says so. (see my article “Is the Malaysia Bar Pathetic?” on this). The arrests were a vulgar attack on basic human rights. It was the proverbial middle finger to all of us. I could go on and on like a chipped CD. But I will stop. Deflect and Attack As a law student, I was taught to answer questions without lying and without actually answering them. It is an art in itself. There are apparently seven ways. The absolutely no-class way of doing that, is to say “no comment”. That is for people with the lowest level of sophistication of course. Another way is naturally to ask the question back to the questioner. “What are you talking about?”, for example. My favourite method is to say something real dumb and irrelevant. When I am asked questions which I do not want to answer, I would sometime say, “the moon is a harsh mistress”. Completely harmless. Completely artful. Completely nonsensical. And irrelevant. It will leave the questioner speechless while giving me time to scoot off. The IGP and Nazri Aziz however take the cake on this issue. It puts my “the moon is a harsh mistress” answer in the drain. Here's an excerpt of what these two said. The IGP was quoted as saying: “Are lawyers immune to the law? Can they do whatever they want without fear of any action being taken against them? Lawyers should set good examples and follow their professional procedures when discharging their duties,” The full report is here. Nazri Aziz would not want to be left out, would he? Here's what he had to say: “The Bar Council is supposed to be a role model. If police enforce the law and among those caught are their (Bar Council) members, they have to accept it. We have the judiciary. Let the court decide whether the five lawyers are guilty or not,” The full report is here. This is what we call “deflect and attack”. It is answering question, without lying and of course without answering the question. And they have added a twist. While they were doing so, they also attack. Brilliant. So now, instead of them dealing with the real issue, namely, whether the police's actions were lawful and acceptable, they deflected the issue by saying the “Bar Council” is not above the law and it was intimidating the police from discharging their duties. Dear Minister Nazri. In the first place, none of the Bar Council members were arrested. Those arrested were members of the Malaysian Bar, not members of the Bar Council. Could you at least be briefed properly on the difference between Malaysian Bar, Bar Council and members of the two please. And who is intimidating who? Lawyers intimidating the police? Where were the tear gasses and acid laced water? Because the last time I checked those things would have been brought out if the police were feeling intimidated. And dear IGP. No. We are not saying lawyers are above the law. The mere fact that the lawyers were arrested is proof enough that we are not, is that not the case? The question is this. ARE THE POLICE ABOVE THE LAW? That question can only be answered by considering a sub-issue. And that is, whether the arrests were lawful or otherwise. The Law The police, like any other servants of the state, must follow the law. They cannot simply arrest anybody they like and under any circumstances which they perceive warrant an arrest. Under section 23(1)(a) of the Criminal Procedure Code, any police officer, without an order from a magistrate and without a warrant, may arrest any person against whom “a reasonable suspicion exists” of his having been concerned in any seizable offence. (I shall not discuss what is seizable or non-seizable offence). So, under the law, the police can only arrest when there is “reasonable suspicion” that the person whom the police wants to arrest has been concerned with an offence. The next question is this. What constitutes “reasonable suspicion”? If a policeman sees a man, dressed in baggy pants and big jacket, with hands in his pockets, from which a small barrel-like instrument could be seen protruding from one of the pockets, walked into a bank, can he arrest that man? What about a lady, caught along Dataran Merdeka at 1am, wearing a tight skirt and a tank top, with condoms in her handbag. Can she be arrested? The answer to those questions depends on the circumstances, on whether it would be reasonable for the police, at that very time, to suspect that the man or lady was concerned with an offence. This question has been argued and decided by the Privy Council in a case known as Chong Fook Kam & Anor v. Shaaban & Ors [1968] 1 LNS 23. The phrase “reasonable suspicion” was succinctly explained by Lord Devlin: “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete.” “But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar.” “There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.” “There is first the power, which their Lordships have just noticed, to grant bail. There is secondly the fact that in such countries there is available only a limited period between the time of arrest and the institution of proceedings; and if a police officer institutes proceedings without prima facie proof, he will run the risk of an action for malicious prosecution.” In short, the power to arrest is not to be taken as a God given right to do whatever the police like. First there must be reasonable suspicion that the person has been involved in some manner with a criminal offence. Then the police must think whether the arrest was really necessary. Would granting him a bail to secure his attendance at the police station be enough, for example. Is there a possibility of escape? Is the person going to commit another crime if not arrested? There are questions which the police are confronted with before an arrest could be made. And as to whether the police can be sued for making an illegal arrest, well, Lord Devlin has answered it in the passage above. The power of arrest is subject to judicial control. So, what the Malaysian Bar wants to do, i.e. to sue the police, is not an intimidation. It is a process by which the police actions could be judged. Nazri Aziz says we have Courts in Malaysia. Yes, of course we have. And that is where the lawyers are going this time. What is the problem? Where is the intimidation? Like, what's the fuss? Kedahans would say, “hang sakit tang mana?” (“where are you feeling painful?”) The Icing’s on the Proverbial 15-Tier Cake The PM was quoted by Utusan Malaysia as saying: ‘‘Kita juga akan menguatkuasakan undang-undang dengan cara paling berhemah,’’ Loosely translated, that means “We will also enforce the laws in a courteous way”. The full report is here. Ladies and gentlemen, please have a look at the video at Malaysiakini.TV again. Watch it carefully. Was there a reasonable suspicion that the five young lawyers were committing an offence? Was there a necessity for the arrests? And as a last question, was the law being enforced in a courteous way? You tell me. - www.art-harun.blogspot.com