On the night of 7 May 2009, five members of the Bar Council Legal Aid Centre (Kuala Lumpur), Fadiah Nadwa binti Fikri (KL LAC Secretary), Murnie Hidayah binti Anuar, Puspawati binti Rosman, Ravinder Singh Dhalliwal (KL LAC Chairperson) and Syuhaini binti Safwan, in their capacity as advocates and solicitors, requested the police at the Brickfields Police Station for access to the 14 detained persons who had been arrested earlier that same night whilst holding a candlelight vigil at the same Brickfields Police Station over the recent arrest of political scientist Wong Chin Huat.

The police denied the 5 lawyers access to the detained persons.  Furthermore, the police, without any reasonable grounds, proceeded to arrest the 5 lawyers and only released them on police bail at around 3 p.m. the following day, 8 May 2009, notwithstanding the repeated requests by other lawyers for their immediate release.

The Panel of Inquiry, comprising Dato’ Sri Muhammad Shafee bin Abdullah (Chairman), Datuk Dr. Michael Yeoh Onn Kheng (Member), and Datuk Dr. Denison Jayasooria (Member), was of the unanimous view that:-

• “The arrest and detention of the 5 KL LAC lawyers did constitute a denial of legal representation and a contravention of Article 5(3) of the Federal Constitution and section 28A of the Criminal Procedure Code [CPC]” and “was a clear violation of human rights”;

• “There was no justification or necessity to arrest and detain the 5 KL LAC lawyers….as they were there not participating in the cause of their clients but simply performing their duties as legal practitioners in defence of the 14 arrestees who were their clients.  This is a clear transgression and a violation of human rights;

• “clearly the violation of human rights herein were mainly committed by DSP Jude [Pereira] and OCPD [of Brickfields Police Station ACP] Wan [Abdul] Bari [bin Wan Abdul Khalid].  We are of the view that these 2 senior most officers in Brickfields Police station at the relevant time were responsible in making all the assessment of the situations and subsequently giving directions….”

• “such violations of human rights occurred because the relevant officers did not understand nor appreciate the functions and duties of defence lawyers in the context of the criminal justice system….”

What is equally, if not more, important are the factual findings of the Panel, which can only be described as a sad indictment of the 2 senior police officers in question.  The Panel found that:-

• “DSP Jude Pereira and OCPD Wan Bari were totally hazy with their testimony pertaining to their interaction with the 5 lawyers or for that matter with other lawyers including the Chairman of the Bar who arrived subsequent to the arrest of the 5 lawyers.  We find the evidence of DSP Jude Pereira totally unsatisfactory.  DSP Jude Pereira either consciously were not telling the truth or suffered from a serious bout of loss of memory.  DSP Jude Pereira initially denied interacting with any lawyers until he was confronted with direct evidence and documentary evidence in the form of the video footage”;

• “we are baffled with [OCPD ACP Wan Abdul Bari’s] claim that he has never met the Chairman of the Bar or Mr Puravalen or any other senior lawyers representing the Bar who were allowed into the compound of the police station after the arrest of the 5 lawyers.  Mr Ragunath Kesavan in no uncertain terms testified that he pleaded to meet up with the arrestees but he was unceremoniously told off and instructed to get out of the police station by the OCPD.  [His exact words were: “Get out of MY Balai.”]  OCPD Wan Bari was only able to say that he cannot remember such incidents happening implying that such incidents never happen”;

• “the police in their submission has attempted to argue that since all these arrestees (the 14 and 5 lawyers) were allowed to keep their handphones to communicate, there was actually no denial of communication and consultation with the counsel of their choice.  We find this argument not appealing at all because it totally demolishes all the reasons provided by DSP Jude in all the five s.28A forms for refusal of access to counsel….This is in fact a powerful piece of evidence to show mala fide and improper motives on the part of the police to deny access to counsel”;

• “We find the other reasoning provided in the Form 28A in relation to safety of other persons to be completely without merit whatsoever and totally illogical.  DSP Jude did not tell us whose safety he was worried about.  As we had earlier pointed out that provision is totally inept to this mundane situation”;

• “We are even prepared to accept that the 14 may have been difficult in allowing the processing of their particulars to be undertaken but this is a far cry from claims that they were unruly to the extent that their behaviour brought about a situation of a possible siege of Brickfields Police station.  There was even a claim that others from outside could pose danger acting in concert with the 14 to cause a public order problem.  Apparently, according to DSP Jude the armory too could have been put in danger.  We find no evidence of this magnitude.  The Police in Brickfields were well in control of the situation”;

• “The Police having exaggerated the situation of the 14 arrestees then made the claim that the drama relating to the 14 is a continuous activity or transaction to the event leading to the arrest of the 5 LAC lawyers.  We find this claim absurd….”

The Panel thus highlighted serious misgivings as to the credibility and integrity of ACP Wan Abdul Bari and DSP Jude Pereira.  The Panel has made strong conclusions as to the veracity of their testimony.  However, and regrettably, the Panel did not see fit to make any recommendations that disciplinary proceedings be commenced against these 2 senior police officers.  When asked why, the Chairman said that the Panel was aware that a civil suit might be filed against PDRM.  With respect, whether or not there is to be a civil suit should not concern the Panel.  The Panel’s terms of reference included making recommendations as to corrective action.  In not recommending disciplinary proceedings, the Panel fell short of its terms of reference.

In any event, the conduct and testimony of the 2 senior police officers constitute grave violations of the PDRM’s disciplinary regulations as set out in the Police Regulations, 1952 [L.N. 636/1952].  In particular, a police officer who:

• without reasonable cause makes any unlawful or unnecessary arrest (Regulation 23);

• knowingly makes or signs any false or misleading statement in any official record, register, book or other document (Regulation 45); or

• prevaricates or lies at any official enquiry (Regulation 52),

is guilty of a disciplinary offence.  These violations cannot go unpunished.

This is not the first time that SUHAKAM has dealt with the issue of the abuse of Section 28A of the CPC.  In its 2008 Annual Report, SUHAKAM had already made the recommendation “that the Police should ensure strict adherence to the statutory right of persons arrested to consult a lawyer in accordance with Section 28A of the (CPC). The said section requires the Police to inform a person of the reason for his arrest and to inform him of his right to contact his lawyer and family.”

The events of 7 May 2009 raise questions whether, more than 1 year after the release of SUHAKAM’s 2008 Annual Report, the recommendations of SUHAKAM have actually been considered and implemented both by the Government and Polis DiRaja Malaysia (PDRM).  The actions of the 2 senior police officers in question, namely OCPD ACP Wan Abdul Bari bin Wan Abdul Khalid and DSP Jude Pereira, clearly show that the PDRM are still lacking in adequate knowledge and training of the proper application of Section 28A of the CPC

The breach of the constitutional rights of another by someone in a position of authority such as a police officer, and the blatant abuse of the law, both of which have occurred here, are very much as dangerous in how it affects our country as crime and corruption.  Such practices must be rigorously and systematically rooted out.

It is high time that the Government and PDRM institute better human rights training for members of the police force.  The Government and PDRM must now initiate disciplinary proceedings against ACP Wan Abdul Bari and DSP Jude Pereira, and to make public the findings and decision of the disciplinary proceedings.  Anything less would mean that both the Government and PDRM are neither sincere nor serious about upholding law and order and respect for the constitutional rights of citizens, about the issue of discipline in the police force, or of putting an end to “little Napoleons” and the culture of impunity surrounding law enforcement agencies (but particularly the PDRM) in our country.

Andrew Khoo

(Andrew acted as Counsel for the Malaysian Bar in the hearing by the Panel of Inquiry.)