AS an activist advocating for better civil and political rights in Malaysia, I am delighted at the recent directives for remand proceedings from Chief Justice Tengku Maimun Tuan Mat.

While the directives may seem nothing more than a procedural guide to the layman, for it merely affirms civil liberties such as habeas corpus and right to legal representation as enshrined in article 5 of the Federal Constitution, there are well documented cases of where gaps and avenue exist within the remand process for violation of liberty rights in actual practice.

The chief justice must be given credit for spelling out in black and white the remand process which largely conforms to international human rights standards with which all magistrates must comply

Under normal circumstances, a police officer may only arrest and detain a person for a maximum of 24 hours for investigation. Should the police feel a need to hold a suspect longer than that, they may only extend the detention period if a magistrate approves the remand.

The recent directives have necessitated legal representation for any accused appearing in court for remand application. This is vital for it not only affirms the principle right to legal access but that right itself is also an important safeguard against police abuse or unlawful detention.

The detainee’s lawyers will able to ask the right questions of the magistrate and seek legal redress or protection if the police are found to be infringing the rights of the accused.      

Furthermore, the directives also make it clear that for suspects not represented by lawyers or are unable to appoint one, magistrates are told that they must notify suspects of their rights to legal access especially the right to obtain legal service from legal aid department – the Malaysian equivalent of the famous maxim of if you cannot afford an attorney, one will be provided for you.

Police officers are also advised that they must facilitate this process and ensure the lawyer that the arrested has requested must be contacted.

The directives have basically laid down in no uncertain terms the arrested’s right to a lawyer and that remand proceedings must be delayed if need be for a lawyer be found for the detainee.

There are still Malaysians – often members of marginalised communities – who are unaware of their rights while in police custody and cases are where misconduct could potentially take place.

The absence of legal representation renders the detainee vulnerable to numerous human rights violations such as being remanded after being beaten or for an unjustifiably long period for a petty crime.

There are also further instructions whereby when the suspect is being produced in court, the magistrate is now required to inform about the application of remand, whether it is a new application or a further extension of remand.

This is especially vital for preventing the abhorrent practice of chain remand where the suspect remains in one remand after another.

If the remand period is deemed too long and the magistrate believes that a remand will not aid in the investigation, the magistrate may break the chain remand by rejecting the police’s application.

Last but not least, the chief justice has also put pen to paper to ensure that magistrates must also consider the suspect’s health when assessing the remand application.

If the suspect is found to require medical care, the police officer must ensure that the he or she gets it even in police custody.

Other than acting to prevent death in custody due to foul play, enable injuries to be treated, and nullify the remand application, thes simple instructions could also save the lives of detainees with health conditions. Deaths in police custody are certainly avoidable if the right to healthcare is respected.

Having said that, there are still procedural loopholes in the remand application process that the chief justice could stitch up.

For example, section 9 stipulates that the remand application will still proceed if the suspect remains legally unrepresented after a reasonable time.

Such a situation is more likely to occur when the detainee is poor or marginalised and has little knowledge about his or her rights to a lawyer.

Furthermore, the existence of security laws such as Sosma, Poca and Pota which effectively circumvents the issue of rights to allow indefinite remand, could also undo the good work of the chief justice.

There is a possibility that police would be tempted to invoke security laws against even low-level suspects given that the remand application appears to be more stringent.

Nevertheless, the recent directive of the chief justice is a welcome guide for the way we treat those who have been arrested in our criminal justice system, and the onus is now on the magistrate to execute the power to serve as a check on the police who must strike a balance between maintaining law and order and protecting the rights of the arrested. – September 19, 2021.

* Kenneth Cheng has always been interested in the interplay between human rights and government but more importantly he is a father of two cats, Tangyuan and Toufu. When he is not attending to his feline matters, he is most likely reading books about politics and human rights or playing video games. He is a firm believer in the dictum “power concedes nothing without a demand. It never did and it never will”.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.