A week ago, the Penang High Court released Penang executive councillor Phee Boon Poh and two other men, who were arrested by the Malaysian Anti-Corruption Commission (MACC) from a remand order by the magistrate’s court.
Judicial Commissioner Abdul Wahab Mohamed of the Penang High Court found that the remand order had contravened Section 117 of the Criminal Procedure Code as the lawyers acting for all three men were not allowed to make submissions at the magistrate’s court during the remand hearing. As such, the judge held that the three men were denied the natural justice of being heard before they were remanded.
If indeed the lawyers for the three were not allowed to submit, the decision by the magistrate would amount to a shocking denial of their rights to legal representation.
The right to legal representation is a right enshrined under Article 5(3) of the Federal Constitution. According to it, an arrested person must be told of the grounds for his or her arrest and must be allowed to consult and be defended by a lawyer of his choice.
The United Nations’ Standard Minimum Rules for the Treatment of Prisoners provides that a prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence.
Also, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations’ General Assembly, provides among others that a detained person shall be entitled to communicate and consult with his legal counsel and be allowed adequate time and facilities for consultation.
Further, the Criminal Procedure Code provides that an arrested person must be informed that he or she has a right to consult a lawyer.
As for remand proceedings, the Code also clearly provides that the magistrate in deciding the period of detention of the arrested person shall allow representations to be made either by the arrested person himself or herself, or through a lawyer of his or her choice.
The right to legal representation is thus an important right. It is an element in the larger jurisprudence of natural justice, encapsulated in the larger right to a fair hearing.
In proceedings in court, both sides must be allowed a chance to be heard and the opportunity to present the best case.
This is especially important in criminal proceedings as to deny a person the right to equip himself to face the machinery of the State would be a clear breach of natural justice.
Yes, we must allow the authorities to investigate crime, but it must not be at the expense of the right of individuals to consult and be represented by a lawyer.
The decision by the Penang High Court in Phee’s case is a welcome reaffirmation of this most sacred right.
> The views expressed are entirely the writer's own.