Is the Right to Counsel Absolute?

If you are arrested by a police officer, can you immediately request the police officer to allow you to consult a lawyer? Can they refuse your request? This issue was dealt with in the recent High Court case of Datuk Hasanah Abdul Hamid v Suruhanjaya Pencegahan Rasuah Malaysia & Anor.

Brief facts of the case

Datuk Hasanah was arrested by the Malaysian Anti-Corruption Commission (MACC) officers. Upon arrest, she was duly informed of her right to consult her lawyer (or a right to legal counsel) by MACC. However, that right was suspended when upon investigation, the Superintendents of MACC realize that the act of granting her the right to consult a lawyer might adversely affect the outcome of the investigation against her. She was, however, given the opportunity to consult her counsel who was present in court during a remand proceeding against her in court (she was further remanded for another 6 days).

Once she got out of remand, she immediately commences legal proceedings against MACC, claiming that while MACC was empowered by section 28A (8) and (9) of the Criminal Procedure Code to deny her a right to consult a lawyer, those power is contrary those fundamental rights guaranteed under the Federal Constitution, namely (amongst others) the right to be defended by a legal practitioner (of his/ her choice) at any given time after her arrest.

On the flip side, MACC justified their action by stating that they were merely suspending her right to consult a lawyer temporarily to ensure that the investigation against her will not be impeded by her and her lawyer.

The High Court agreed with MACC and dismissed Datuk Hasannah’s application.

The rationale of the High Court

In coming to its decision, the court held that:

1. The law (namely section 28A of the Code) has been clearly explained by the Parliament of Malaysia in one of their parliamentary debates in 2006 (as shown in the Hansard dated 13th July 2006). In that particular debate, the Parliament made it clear that a person who is arrested must be allowed to consult a lawyer unless:
   1. The person who is under arrest might be able to notify his/ her accomplice as to allow his/ her accomplice to avoid arrest;
   2. The person who is under arrest might be able to instruct his lawyer to conceal, fabricate, destroy evidence or even intimidate known witnesses; or
   3. It is pertinent to record the statements of another person/ question the arrested person immediately as any delay might put any witnesses to the crime committed by the arrested person in harm’s way.
2. The law is in line with Article 5(1) of the Federal Constitution, which states that no one can be deprived of his/ her personal liberty save in accordance with the law.
3. Although Article 5(3) of the Federal Constitution does state that a person must be accorded the right to consult a lawyer of his choice, it does not mean that the right is an immediate one. This right, as the court pointed out, must be balanced with the interest of justice as it is the duty of a police officer to protect the general public from wrongdoers by apprehending them and collecting whatever evidence exists against them before such evidence is destroyed, which might allow the wrongdoers to go free and continue committing crimes. 

It must be noted that Datuk Hasanah has since filed an appeal in the Court of Appeal. The article will be updated accordingly once a decision is meted out by the Court of Appeal.

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