Counsel Datuk Shaharudin Ali said yesterday that Section 28A (8) and (9) of the Criminal Procedure Code (CPC) surrendering her right to consult a lawyer 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 MACC to completely 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.
Hasanah sued the 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 the investigation into allegations of abuse of power and misappropriation of government funds for GE14.
Shaharudin said 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.
He said Parliament could amend Section 28 (8) and (9) but said for now, those provisions were against Article 5(3).
Section 28 (8) and (9) state that the constitutional right of a suspect could be suspended by a senior police officer should there be an interference in investigations.
Justice 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 ( 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 under remand contravened Articles 5(3) and 8 of the Federal Constitution.
She claimed that Section 28A was unlawful, null and void and cannot be enforced against her.
In October last year, High Court judge Nordin Hassan held that Section 28A (8) and (9) of the CPC were not discriminatory in nature as they did not deny the right to counsel, rather it was the suspension of those rights during the remand period.
Justice Hamid, who presided with Justices Hanipah Farikullah and Kamaludin Md Said, adjourned the hearing to Oct 3 to hear submissions by DPP Datuk Mohd Dusuki Mokhtar after the latter requested for more for research. — Bernama
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