Dear Visitors,

Thank you for visiting this Blog. This was the Official Blog of my former Legal Firm, Messrs Richard Wee Lopez, but as of 1st January, I am now at a new firm 'Messrs Richard Wee Lopez'. My former firm merged with Messrs Sunil Lopez, and now carry the new name.

Please feel free to visit our new website of www.rwl.com.my and also our new Official Blog at http://richardweelopez.blogspot.com/

Thank you.

Regards,

Richard Wee

Putik Lada: In a Catch 22 bind

Contributed by Richard Wee Thiam Seng

Friday, 07 November 2008 07:54am

©The Star (Used by permission) by Richard Wee Parliament has to intervene when there is an issue of jurisdictional conflict between Syariah and civil laws. LAST year, the Federal Court in the case of Subashini Raja singam v Saravanan Thanga thoray, by a majority of 2-1, dismissed the wife’s application for a court order to stop her husband, who had converted to Islam, from going to the Syariah court for a divorce and from unilaterally converting their infant children to Islam. It was dismissed on a technical ground. Under Section 51, Law Reform (Marriage and Divorce) Act 1976, if one spouse converts to Islam, the other spouse can only apply for divorce three months after that conversion. Subashini filed her divorce application just before that three-month deadline. She had done so because her husband had filed a similar application in the Syariah court and that court was apparently prepared to grant a divorce order as well as an order for custody of her child despite her absence (she cannot appear in that court as she is not a Muslim). However, the Federal Court made some interesting observations. One major issue in that case was the conversion of one of the children in the marriage to Islam by the converted husband. Subashini had contended that the conversion was irregular and therefore void, as the law requires the consent of both parents when the child is converted to another religion. But the majority of the Federal Court, in a Judgment delivered by Datuk Nik Hashim Nik Ab. Rahman FCJ said: “The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtues of Articles 12(4) and 8 of the Federal Constitution, and Section 5 of the Guardianship of Infants Act 1961. [Articles 12 (4) of the Federal Constitution provides that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. Article 8 prohibits discrimination on the basis, among other things, of gender; and Section 5 of the Guardianship of Infants Act 1961 provides that both parents have equal rights in matters related to the child.] “After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Ei ther husband or wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in art 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent.” With respect, I disagree with this part of the decision. The 11th Sche dule, Section 2 (95) of the Federal Constitution specifically states that singular words in the Constitution shall include the plural. So the use of the word “parent” in the Federal Constitution does not mean only one parent but both parents. In the light of the majority decision of the Federal Court, it appears that the law as it stands now is as follows: 1. One parent can convert a child from one religion to another. 2. When that conversion is to Islam, the non-Muslim spouse may have no remedy because of the difficulties faced by non-Muslims in challenging the other party’s legal status as a “Muslim” due to various laws and court decisions. It is my view that Parliament has to intervene to legislate this matter and correct the position of Subashini and those like her. The amendments should include the requirement that both parents must give their consent if a child below 18 years of age is to be converted to another religion. As it stands now, it is almost impossible to give advice to a client in a similar position to Subashini’s. If a non-Muslim client told me that his or her spouse has converted their child to Islam and asks me what to do, I am in a quandary: If I say “I don’t know”, it won’t look good for me as a lawyer. If I say “go to the Syariah court to get a remedy”, I am asking a non-Muslim to go a Syariah court, which in any event is incorrect. If I say, “We’ll settle this in a civil court”, I may be bound by the majority decision of the Federal Court in the Subashini case. Unless the client is willing to take the case all the way to the Federal Court so that the issue can be revisited, he or she may not have any remedy. So, I urge Parliament to step in and amend the law accordingly. Section 5 of the Guardianship of Infants Act would need clarification by perhaps substituting the word “parents” for “parent”. This would ensure that the consent of both parents would be required before the religion of the child is changed. I would, however, venture to state that Parliament should consider allowing the child to choose whatever religion the child wants to subscribe to when he or she attains the age of 18. Till that age, the law may consider allowing the child to continue adhering to the religion that he or she was born into. As for the Federal Constitution, Article 12 (4) ought to be clarified to mean that both parents are empowered in matters related to the child. I am however reluctant to advocate amending the Federal Consti-tution. It is unhealthy to frequently amend the Federal Constitution, and in this matter, the provisions of the Con stitution have already clearly defined singular words like “parent” to include plural meaning of both father and mother. But for the sake of clarity and avoidance of doubt, perhaps Article 12 (4) should be specifically amended accordingly. In addition, when there is an issue of jurisdictional conflict between Syariah and Civil laws, Parliament must make laws not to compel non-Muslims to go to the Syariah court. Religion being a personal matter, Parliament must be sensitive to the people, by not making a person who subscribes to one religion to be adjudged by the laws of another religion.

“I want to call my lawyer”… But can you?

(From KL Bar's Relevan August 2008)

Richard Wee Thiam Seng analyses the new section 28A of the Criminal Procedure Code which crystallises the right of a person under arrest to contact the person’s lawyer

How many times have you heard that on television? A scene from a criminal investigation series will flash an arrested person’s demands to see a lawyer. Does that right exist in Malaysia?

The new Section 28A

The Criminal Procedure Code (CPC) was amended in 2006 via the Criminal Procedure Code (Amendment) Act 2006 (ACT A1274) which came into force in September 2007, and among the more interesting amendments to the CPC is the addition of a new Section 28A, which reads:-

 

Rights of person arrested

 28A. (1) A person arrested without a warrant, shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.

(2) A police officer shall before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may-

(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts;

and

(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.

(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.

(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time-

(i) for the legal practitioner to be present to meet the person arrested at his place of detention;

and

(ii) for the consultation to take place. 

(5) The consultation under subsection (4b) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard;

(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made;

(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.

(8) The requirements under subsections (2) and (3) shall not apply where the police officer reasonably believes that-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

 

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.

(10) The police officer giving the authorization under paragraph (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.

(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after conditions specified under subsection (4) have ceased to apply where the person arrested is still under detention under this section or under section 117.

Section 28A is a welcome addition to the law. It finally crystallises the right of an arrested person to call the person’s family or a lawyer. Our country, already independent for 50 years, only recognised this right on its 50^th anniversary. But better late then never, I suppose.

Before the enactment of Section 28A, Article 5 of the Federal Constitution was constantly referred to, as a general right to a solicitor when arrested. It is also interesting to note that Section 28A is similar to Sections 56 to 58 of the United Kingdom’s Police & Criminal Evidence Act 1984 (PACE). PACE will be discussed further below.

There are however 2 provisions in Section 28A which, it is submitted, would require judicial interpretation on the scope of police discretion and powers:-

1.    Section 28A (6)

2.    Section 28A (8)

 

Section 28A(6)

Section 28A (6) states that the police may wait for a ‘reasonable time’ for the arrival of the solicitor before commencing questioning of the arrested person. How long is this ‘reasonable time’?

Whilst it is virtually impossible to fix a specific time period to define what is ‘reasonable period’, but it would be logical to acknowledge that the police ought to wait for a few hours, at least for the arrival of the solicitor. There should also be safeguards built into the interrogation of an arrested person who has demanded for the presence of a solicitor, who is albeit late. It would be interesting to see how the Courts deal with this issue.

It is hoped that we will adopt similar Code of Practice under PACE, used in the United Kingdom, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion.

Section 28A (8)

Section 28A (8) contains a provision which allows the police to deny any arrested person the right to contact a family member or lawyer if that allowance will lead to one of these circumstances:-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

How far can this proviso be used by the police?

At the recent ‘Bersih’ and ‘Hindraf’ rallies, the police issued certificates under Section 28A (8) to deny the arrested persons their right to legal counsel, even though the lawyers were physically present at the police station to meet their clients.

It was unfortunate that this provision was so readily used at that time, when it is plain and obvious from the Section 28A, that subsection (4) is nothing more than an exception to the general rule. Over and above that, the constant usage of this exception would not only negate the true purpose of Section 28A of protecting the liberties of an arrested person, but is a fundamental breach of Article 5(3) of the Federal Constitution.

Section 28A (8) also uses general words to empower the police in discharging their duties under that provision. It allows a police officer who “reasonably believes” that allowing an arrested person to exercise the person’s rights in Section 28A (1) to (7) would “likely to result” in one of the given outcomes therein. How would these concepts be adjudicated? What principles would the Court apply when drawing the boundaries of these discretionary powers given to the police?

It is submitted that there are a few pertinent guiding principles to assist the Courts in drawing that said boundary.

First – Article 5(3) of the Federal Constitution. As our Federal Constitution is the highest authority of law, it should be the starting point in the decision making process of any Judge in deciding the scope of police discretion under Section 28A (8). Article 5(3) has long confirmed the right of any person arrested to have legal advice and representation when facing the criminal charges. The discretionary powers in Section 28A (8) must be subjected to the Federal Constitution.

Secondly –  in the case of Woolmington v. DPP[1935] AC 462, the House of Lords held that the prosecution bears a burden to prove beyond reasonable doubt. That decision also confirms the principle that an arrested person is innocent until proven otherwise. Based on that principle it is not acceptable that the exception of Section 28A (8) be regularly used. In Malaysia, the Woolminton rule has long been entrenched in our criminal matters (Mat v PP [1963] 1 LNS 82).

Over and above these 2 contentions, we should also take cognizance of the United Kingdom’s practice in this area. As mentioned earlier, PACE has a similar provision of conferring the right to arrested person to legal advice, and also provisions for their police to deny that right. However in the United Kingdom, PACE has many Codes of Practice governing the operation of PACE. If we refer to Code of Practise C of PACE, it is abundantly clear that the Code sets out the duties of the police in ensuring the arrested person is given the best opportunity to contact a solicitor. That Code went so far as to even suggest that the Investigating Police Officer should contact the Immigration Department when dealing with a foreigner despite PACE not requiring this be done.

It is hoped that Malaysia will adopt a similar Code of Practice as set out under PACE, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion for this sub section and also the discretion referred to above in Section 28A (6) .

Some cases from the United Kingdom can give us some guidance on how Section 28A can be interpreted.

The Court of Appeal in Samuel (1988) QB 615 held a confession given by the accused person (the appellant at the Court of Appeal) was inadmissible, after the facts therein indicated that the police had not only held the accused person for six hours and refused him to a lawyer but when a lawyer did arrive (who was sent by his mother) that lawyer was refused access to him for a further three hours, during which time he confessed to the crime. The police offered a justification that by allowing the accused to see the lawyer may have triggered the escape of other suspects. The Court of Appeal held that the denial of access to legal advice was unjustified and the Court did consider the Codes of Practise in PACE.

In another Court of Appeal decision Alladice [1988] Crim LR 608, although there was a finding that the accused was denied access to a lawyer, the Court held that the interview was in fact properly conducted as there was no evidence that the accused was coerced or forced into making the statement. However the Court did rebuke the police and did consider the Code of Practice in PACE. The Court still did stress the importance of the accused having access to a lawyer.

It can be concluded that in the United Kingdom, and to a large extent the European Union; the right to have a solicitor present when being interviewed and also to communicate privately with a solicitor; is viewed extremely seriously by the UK and European Courts of Human Rights. Any unnecessary deprivation of that right may be viewed as a violation of Article 6 (the right to a fair trial) of the European Convention of Human Rights.

It is submitted that Section 28A (8) must not be liberally interpreted and if given the opportunity to comment on that provision, the Courts ought to discourage the application of that provision.

Further the police force must make all efforts not to take the easy way out of denying the arrested person’s fundamental right to see a lawyer. The officers must be educated and exposed to that said right.

Can you call your lawyer?

So we return to the question posed, can an arrested person call for his/her lawyer?

So long as the police force continues to actively rely on Sections 28A (8) & (9), then the purpose and intention of Section 28A would be defeated.

Instead the right to see one’s family or lawyer as per Section 28A (2), (3) & (4) be given an interpretation that is as liberal as possible. It would be incumbent upon our Courts to protect the liberties of the people, and interpret the provisions above bearing in mind that the person arrested or accused; is still very much innocent until the Court so orders otherwise.

Richard Wee Thiam Seng

(assisted by Yip Xiao Heng, a Law Student from KDU)

To YLC or Not to YLC, that is the Question.
(From KL Bar's Relevan)
article 19 - August 2006

On 4th October 1975, the Government of Malaysia introduced ESCAR, Essential (Security Cases) Regulations. hat day was the beginning of a massive struggle by the Bar Council, which culminated in the addition of a new provision, the infamous Section 46A in the Legal Profession Act. The ESCAR was seen to be oppressive and had little respect to human rights. The case of a 14 year old boy in Penang found guilty and sentenced to be hung in 1978 became the focal point of a major protest by lawyers back then. The boy was not charged in a juvenile court, and was treated as a normal adult. He was sentenced to death for being in a possession of a pistol. The High Court Judge in that matter, had no choice but to pass that sentence, as it is required so in the ESCAR.

That 14 year old boy’s case caused a massive uproar, and the Bar Council made an appeal to the then Prime Minister, Tun Hussein Onn that the sentence is absolutely against basic human rights. Whilst the Bar Council acknowledge that the need to maintain security in the country was paramount, but that need for security should never compromise the basic civil liberties of fair punishment for offences under the law. That case became a world renowned case, and gave ESCAR world wide publicity. The Malaysian Bar had also passed resolutions to boycott all cases involving ESCAR on the basis that the provision is unconstitutional.

Instead of amending ESCAR, the government saw it fit then to add in S46A.

That infamous provision prohibits 3 groups of lawyers from being part of the Bar Council or State Bar Committees:-

a. lawyers in practise less than seven years
b. members of Parliament or State Legislative
c. Lawyers who were holding office in :-
(i.) trade unions;
(ii.) political parties, or
(iii.) any other organisations which is political in nature.

Recently on 5th July 2006, after almost 30 years of struggle, Dewan Rakyat passed the Legal Profession (Amendments) Bill 2006. In Paragraph 10, para (a) of S46A, which prohibits the involvement of lawyers less than seven years in practise, is abolished. In due time, the Bill will be passed and gazetted.

This marks a new era for the Bar. Finally any lawyer, at any age is not prohibited to offer oneself as a candidate for election to the Bar Council or State Bars. However it is still regretful that the members of the Bar involved in politics or trade unions continue to be sidelined. This separation is discriminatory against lawyers who just happened to have political and union affinities.

Whilst the continued prohibition of lawyers involved in politics and unions is frowned upon, the abolishment of the superficial prohibition of younger lawyers to be part of the Bar Council and State Bars is extremely welcomed and will definitely be received warmly by the legal profession. The Bar has evolved since the insertion of S46A in 1978. Initially the Bar had passed resolutions condemning the provision and eventually challenged the constitutionality of the S46A in Court, which culminated in the matter of Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165. By a majority of 2-1, the Supreme Court held that S46A was constitutional.

In the late 1990s, the Bar Council formed the National Young Lawyers Committee. The Kuala Lumpur Bar had a Junior Lawyers Representative under the Junior Lawyers Liaison Committee which then evolved into its current form of Young Lawyers Committee (YLC).

The YLC at KL Bar is given observer status in its’ monthly meetings, wherein the Chair and Secretary of the YLC are invited to be part of the meetings.

With the abolishment of that provision, the Bar Council and State Bars have to face different challenges with the YLC. Continuing the operation of the YLC in its current format, will mean that the Bar continues to separate the lawyers by their years in practise. We will look rather hypocritical. On one hand we criticised the government for imposing such a provision on us, and on the other hand (if we continue to form the YLC after this 2006 amendments) we may be seen to have internal discrimination.

The YLC of KL Bar in its current format is dynamic and proactive. Some of our more famous members like Ragunath Kesavan and Edmund Bon have gone on to be council members of the Bar Council. KL’s YLC is definitely the bedrock to many future leaders of the Bar. The activities of the YLC cater to the interest of many lawyers. Training on Corporate Law, targets the young
corporate lawyers. Lawyers who have welfare in their heart, join the Welfare Committee of YLC. The Human Rights Committee provide the platform for many aspiring Human Rights Lawyers.

Views of the YLC are seriously taken into account by the current KL Bar Committee, and many decision making process includes discussion with the YLC. Can we do away with the YLC? Should we close the YLC? What do we do with YLC?

These new and novel issues of the YLC have to be addressed.

I am of the view that the YLC must stay. YLC should be permitted in as part of the mainstream KL Bar Committee. The Chair of YLC should now be selected from one of the Committee Members of KL Bar. Perhaps a new convention and practice be formed wherein the youngest committee member is selected as the Chair of YLC.

Membership to YLC should be open to all lawyers irrespective of how long one has practised, but the Bar Council or State Bar can encourage the participation of the younger lawyers who just stepped into practice.

The YLC is an important committee to prepare future leaders of the Bar and also become a soft landing spot for younger lawyers who aspire to be active in the Bar Council or State Bars. To close it would be a shame.

The new YLC should be empowered to assist the younger lawyers who are more often than not, lost in the legal daily juggernauts. It should be the lubricant to ease lawyers into practice, and the no. 1 associate to all younger lawyers when they join the profession.

We must no more divide the membership of the Bar based on our years in practice. We are now a new Bar, stepping into a new era. We must do new things!


Richard Wee Thiam Seng
Chairman
Young Lawyers Committee
2006/07

Don’t move the goal post, improve the game

Contributed by Richard Wee Thiam Seng

Friday, 07 September 2007 12:45am (from the Malaysian Bar website)

The Attorney General recently proposed a No Fault Liability System to assist victims of accident cases to have faster access to compensation. He then referred to New Zealand and Australia as two countries with this system. It is almost impossible for any lawyer to comment that the No Fault Liability System won’t work, without being accused of merely protecting our ‘rice bowl’. Whilst there is little doubt that many lawyers are involved in this Personal Injury Claims involving motor vehicle, it is also virtually certain that the No Fault Liability System will see the end of lawyers’ involvement in those cases. Despite these foreseeable accusations against me, I will still endeavour to try persuading the AG that the No Fault System will likely not work in Malaysia. What is wrong with the current system? Ironically recently the Chief Judge of Sabah and Sarawak led a team of Judges who dialogued with the Bar about establishing a proposed ‘Pre-action protocol’ for Personal Injury Cases. The Learned Chief Judge’s team was keen to speed things up for such claims. This led to Forum held by Kuala Lumpur Bar Committee on the 10th April 2007. At that Forum, 2 major issues were raised by lawyers who attended the Forum:- 1. long wait for the issuance of the Medical reports from Government Hospitals, sometimes taking as long as a year; 2. equally long wait for documents from the Police. There were also some comments about Insurance Companies not replying quick enough and also low offers from the same. The Forum alluded KL Bar Committee members to some of the problems which causes delay to Personal Injury Claims, the very same delay that the AG believes can be solved by merely changing the system to a No Fault Liability System. Of course, needless to say, there are some instances where lawyers may have caused delays too. Lawyers are not so thick-skinned to deny that the legal fraternity is absolutely above the cause of delay. But what is crucial is we have clear evidence from the very lawyers that are conducting Personal Injury Claims on a daily basis of the some of the causes of the delay in claims. This evidence, to a very large extent can be substantiated. For the moment the said Pre-Action Protocol is not likely to take off, but is being reviewed. Perhaps a specialist court make take off, handling accident claims. In addition to the findings at that Forum, I wish to add a personal opinion. I am of the view that the Insurance companies are also culprits in the delay. These companies in the disguise of trying to evade fraudulent claims more often than not, delays the claims as long as they can. It is my view that even with the No-Fault Liability Claim, the compensation will still NOT be paid any quicker, so long as the Insurance Company are not coerced to do so. It is also my contention that the purging of lawyers in Personal Injury Claims cases would mean the victims would be at the mercy of the Insurance Company, and this time, the victim has no representation and no one to shield, protect and defend him/her. At this juncture, this write up looks more like a fault finding write up. And the fact is, IT IS! I am seeking to see where the fault and cause of the current delay which made AG want to propose the alternative No Fault System. It is my hope that since we can identify the causes for delay, AG only needs now to try tackle these issues and try resolving it. Clearly it is a problem which can be solved, so why change the current system? Would the No-Fault Liability System work? I venture to quote from the Australian Journal ‘The Agenda’, Vol 9 No 2, 2002, page 135. [please see : http://epress.anu.edu.au/agenda/009/02/9-2-A-4.pdf] In that article, the authors Bronwyn Howell, Judy Kavanagh and Lisa Marriott said this at pages 137 to 138:- “No-fault systems have been proposed as a means of reforming the tort-based system. No-fault systems remove the need to prove cause from the compensation equation and thereby reduce the transaction costs of the process (Danzon, 1990:4). Compensation is generally paid according to a prescribed schedule if the loss-sufferer satisfies the scheme administrators that loss has been incurred, regardless of any fault by the alleged loss-causer. Such schemes are typically funded out of levies on potential loss-causers or from general taxation and are accompanied by some limitations on the loss-sufferer’s rights to seek redress from the loss-causer through tort actions. The principal weakness of no-fault schemes is the difficulty of ensuring that the socially optimal amount of care is taken by potential loss-causers, as the links between their potential to cause loss and the costs of their actions are severed. Consequently, most no-fault schemes are accompanied by additional administrative systems, not present in typical tort systems, to monitor the behaviour of potential loss-causers in order to preserve their incentives for appropriate loss-avoidance (Kessler, 1999:13). The efficiency-improvement criterion is met if the transaction costs saved from the tort process are greater than the additional monitoring costs incurred in the no-fault system for the same level of compensation paid to individuals for the same number of adverse events. No-fault insurance schemes are common where the probability of a loss occurring is very uncertain. These include ‘acts of God’ (a sudden and unavoidable occurrence caused by natural forces, such as a flood or earthquake), where there is no party obviously at fault from whom partial cost recovery can be sought. The low probability of these events occurring, the unpredictability of the size of the loss and the exposure to large number of claims arising from a single event, mean that there is often a failure of private insurance companies to indemnify such losses. Further, as no individual has the ability to ‘cause’ the event, there is no need for incentives to prevent the loss-causing event and monitoring costs are low.” These authors are academicians in Australia and New Zealand and their views can be used as a guide to what we are facing here. As can be seen above, the purpose of introducing the No Fault Liability Systemin New Zealand [NZ] was to control spiralling costs. It is also meant to deal with mostly Medical Negligence cases, where the NZ government faced huge claims for medical negligence at its National Health Services [NHS] Hospitals. With a No Fault Liability System, the costs of maintaining the Hospitals can be fixed as the government need not make huge provisions for medical negligence suits. Another factor that the our AG ought to take into account is that in some states in United States of America where this No Fault Liability System is practised, the premium for the Insurance is extremely high. Why is this so? The Insurance Company in this kind of scheme would have no choice but to compensate a victim once the victim can prove his/her claim. There is little chance of defending the claim. So the Insurance Company would logically increase the premium to hedge their losses. Also, the AG must realise that even with the adoption with this system ALL the above mentioned delays [medical and police reports] still exist – which would only mean that accident victims now have to deal with the Hospitals and Police on their own to extract all relevant documents, for their claim. All the best to the victims! Conclusion I have said in my earlier postings at the Bar Website that I am concerned that such major change may in fact not solve the problem. And of course as a lawyer I will concede that the change of system will mean many of our friends all over Malaysia, will lose out in their income. I take a position that the current system needs some intervention by authorities to speed things up. If the AG truly wants to quicken the claims process of the victims, as he so assert in the press release, then I urge him to look at solving the current system and not changing it.

Human Rights and the Law: Your rights and the police

Contributed by Richard Wee Thiam Seng

Wednesday, 29 August 2007 06:31am

©The Sun by Richard Wee Thiam Seng WE have only one police force in this country. The police have wide-ranging powers provided in various laws. Yet, the increasing number of complaints against the police and the infamous nude-squat incident have raised the issue of the power of the police. To what extent may the police interfere with one’s personal liberty and security in the execution of their powers and duties? Under the Criminal Procedure Code (CPC), the police have powers to stop and search an individual who may subsequently be arrested. These powers are however not unlimited. As individuals, we have certain rights guaranteed under our Federal Constitution and laws made thereunder. In 2006, a group of lawyers came together to draft a pocketbook titled Polis dan Hak-hak Asas Anda or commonly known as the Red Book. This was aimed at informing and educating the public of their rights when “confronted” by the police. It was very well-received, and a second edition is underway. The said book was eventually launched by the Minister in charge of law, Datuk Nazri and the then President of the Bar Council, Yeo Yang Poh, at the Bar Council Secretariat in April 2006. Some of the essential information in the Red Book are as follows: 1. When the police stop you » You may ask the police for identification if the officer is not in uniform. Take note of the identification card number. There are different types of identification cards. The difference is in the colour which will indicate the rank of the officer. Blue : Rank of Inspector and above Yellow : Below the rank of Inspector White : Reserve police Red : Suspended officer (A suspended officer has no authority. You may walk away.) » When stopped, you should provide your identification card, if requested by the police. Should the officer request for other documents or show any other items, you may ask the officer the purpose of the request. Do so politely. » If you are not under arrest, you may walk away or refuse to follow the officer back to the police station or anywhere else, if asked. 2. Questioning by the police Section 112 CPC statement » The police may request you to go to the police station to answer some questions. If you are not under arrest, you may choose not to do so. You may however wish to cooperate but by having a lawyer accompany you. » The 112 statement is normally recorded if the police think you have information or knowledge about a case or offence. On most occasions, the police will make an informal request for your 112 statement. If the place and time is convenient to you, co-operate. If not, tell the police you will do so at a convenient place and time. » If you refuse to cooperate, the police may issue a formal order in writing signed by an investigating officer (known as a “police order”) to ask you to cooperate. Should you disobey the order, you cannot be arrested. However, it is an offence and the police may request a magistrate to issue a warrant against you to compel you to co-operate. In general, if you are merely a potential witness and not a suspect, you may not be arrested for the purposes of taking a 112 statement. » In giving a 112 statement, you may refuse to answer any question and remain silent if the answer is likely to expose you to a criminal offence. You may request that a lawyer be present when you are being questioned. Note that a 112 statement may be used in court. » Bring along a notebook or writing paper with you (personal notes). Make sure you understand every question asked. Write down every question asked in your personal notes. Take your time and think carefully. Then write your answer in your personal notes. Once you are satisfied with your answer, read your answer to the officer. Keep your personal notes for future reference. » Upon completion, read the questions and answers written by the officer carefully, and compare them with those in your personal notes. Make any corrections or changes you wish. If you are satisfied with your statement, sign below the last sentence of your statement, at every page. Section 113 CPC statement » Should the police arrest you because you are a suspect in a case or offence, and subsequently record a statement from you, the statement is a 113 statement. Except for this difference, the safeguards mentioned above in relation to 112 statements apply. 3. Arrest by the police » You must be informed of the reasons for your arrest. If you are not informed, you may enquire. You are advised not to resist an arrest. The police may use reasonable force to arrest you should you resist. » The arresting officer must immediately take you to the nearest police station and to no other place. You should ask the arresting officer for details of the police station. » You are also advised to make a telephone call to inform your family, friends, lawyer or the Legal Aid Centre of your arrest. » You may be detained for up to 24 hours to assist the police in investigations. Note the sequence of events and names of officers you come in contact with during this period. 4. Rights in detention » Note the following: i) You have the right to contact and meet with a lawyer. ii) You are to be given proper and adequate food and water, and one set of clothing. iii) You may take a bath two times a day. iv) The police must record and keep all your personal belongings in safe custody. Your personal belongings must be returned to you upon your release. v) If you are sick or feeling unwell, you have the right to receive immediate medical attention. 5. How long can you be detained? » The police may only detain you for up to 24 hours. The duty of the police is to complete their investigations within 24 hours and to release you as soon as possible. » If the police cannot complete their investigations within 24 hours, the police must bring you before a magistrate for a remand order to extend your detention beyond 24 hours (remand order). 6. Remand order by a magistrate » The power to issue a Remand Order by a magistrate is found in section 117 CPC. Purpose of a remand order » A remand order is to give more time to the Police to complete their investigations, and decide whether there is evidence to charge you for an offence. As you have the right of silence, the police cannot ask for a remand order only for the purpose of taking a statement from you. Period of a remand order » In total, you cannot be detained for more than 15 days. The police may make more than one application for a remand order. What happens at a remand order hearing? » When the police bring you before a Magistrate for a remand order, the police must give reasons to the magistrate why it is necessary to detain you for more than 24 hours. » You have the right to request for legal representation at the hearing. Ask the magistrate for it. If the police have denied you this right or threatened or assaulted or treated you inhumanely in any way during detention, inform the magistrate. » Alternatively, you may ask to be released or for a shorter remand order to be made. Give your reasons. e.g. “I will cooperate with the police in their investigations”, “I will be available”. » The magistrate’s duty is to consider carefully the reasons given by the police and your reasons why you should be released or for a shorter remand order. 7. Body Search without Arrest When can this be done? » If you are at a place (e.g. entertainment outlets) where the police are conducting a raid or looking for prohibited substances, the police may search your body or bags without arresting you. » This must be done in the presence of an officer who is an Inspector or of a higher rank. What is to be done? » Do not allow the police to put their hands into your pockets or bags. Volunteer to empty your pockets or bags in their presence so that you are able to see all your belongings. Take out your belongings one by one. Each time, say “purse”, “keys”, “ID card” etc. When your pockets or bags are empty, turn your pockets or bags inside out. » A woman may only be body-searched by a female officer. All body searches must be carried out with decency. There is no law requiring you to be stripped naked for a search. 8. Body Search on Arrest » The police have the power to search your body for any object relating to a suspected offence. » It is your right to have the body search conducted in a confined and private place. » Even when arrested, there is no law allowing the police to force you to be stripped naked. Protest and thereafter lodge a report should you be forced to strip. Recent amendments to the law through the CPC (Amendment) Act 2006 and CPC (Amendment) (Amendment Act) 2007 have been made but have yet come into force. We hope these amendments will greatly improve police services in Malaysia. The Red Book amplifies the effort of the Bar Council in looking out for the public’s rights. There are however many more issues to look into – greater recognition of human rights such as right to counsel, right to a fair trial and greater accountability in police investigations. The Bar Council houses a Human Rights Committee, which looks into public complaints of breach and/or abuse of basic human rights. Through this Committee the Bar Council hopes to offer assistance to the public, within the scope of ability of the volunteer lawyers who sit in that Committee. We however salute the courage of all those who have suffered at the hands of the police to have told us their stories and informed the struggle. Together, our hope is that we will build a better Malaysia.

Messrs Richard Wee
Advocates & Solicitors

Located at Sri Hartamas, Kuala Lumpur; Messrs Richard Wee offers Legal Services in Dispute Resolutions and Contractual & Commercial Transactions. We look at every client as a partner, and every deal as a relationship in law.

Contact:-
Richard Wee
70, Jalan Sri Hartamas 18
Sri Hartamas
Kuala Lumpur

Tel No : 03 6201 4091
Mobile No : 016 275 0025
e-mail : ricwee@gmail.com