Former spy chief's right to consult lawyer while in remand violated, court told

  • Nation
  • Friday, 06 Sep 2019

PUTRAJAYA (Bernama): Former Malaysia External Intelligence Organisation (MEIO) director-general Datuk Hasanah Abdul Hamid's constitutional right to legal representation when she was held under remand, has been violated, the Court of Appeal here heard.

Her counsel Datuk Shaharudin Ali said Section 28A(8) and (9) of the Criminal Procedure Code (CPC) diluted the civil liberties protection accorded to an arrested person under Article 5(3) of the Federal Constitution.

"The section gives unlimited power to the police or the Malaysian Anti-Corruption Commission (MACC) to completely and totally deny the right (to consult a lawyer) accorded by Article 5(3), ” he submitted at the hearing of an appeal against the High Court's dismissal of Hasanah's lawsuit on Friday (Sept 6).

Hasanah sued MACC and the government for not letting her consult her lawyer while she was remanded for six days from Aug 29 last year to assist investigations into allegations of power abuse and misappropriation of government funds for the 14th General Election (GE14).

Shaharudin submitted that there was a total denial of access to counsel throughout the entire duration of Hasanah's detention, adding that Section 28A(8) and (9) had been abused in his client's case.

Shaharudin said the Parliament could amend Section 28(8) and (9) but for now, that provisions were against Article 5(3).

Section 28(8) and (9) states that the constitutional right of a suspect could be suspended by a senior police officer should there be an interference in investigations.

Justice Datuk Dr Hamid Sultan Abu Backer, who chaired the three-member bench, said legislation cannot be used to attack the Federal Constitution which is the supreme law of the land, adding that it would be seen as mala fide (done in bad faith).

In her originating summons, Hasanah sought a declaration that the notification letter issued by the MACC under Section 28A(8) and (9) of the CPC prohibiting her from consulting her lawyer while being held under remand, contravened Articles 5(3) and 8 of the Federal Constitution.

She claimed that Section 28A is unlawful, null and void, and cannot be enforced against her.

In October last year, High Court Judge Datuk Nordin Hassan held that Section 28A (8) and (9) of the CPC were not discriminatory in nature as it did not deny the right to counsel, but it was rather the suspension of those rights during the remand period.

Justice Hamid, who presided with Datuk Hanipah Farikullah and Datuk Kamaludin Md Said, adjourned the matter to Oct 3 to hear submission by deputy public prosecutor Datuk Mohd Dusuki Mokhtar appearing for the goverment and MACC after he (Mohd Dusuki) requested for time to do further research on the issue. - Bernama

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