It is vital to know your rights. Many Malaysians do not know what to do when they get arrested.
YOU wake up, read the latest news updates on your mobile phone, retweet some interesting comments, and post your own reactions. Just another ordinary day, right?
Wrong. If you are not careful, that retweet or comment might land you in legal hot water.
Former journalist Sidek Kamiso found himself in that predicament early last week when a band of plain-clothed policemen banged on his door at 4.40am to arrest him for an alleged Twitter insult. They had not only come for him at an ungodly hour but also reportedly jumped over the fence to forcefully nab him.
After checking their identification, Sidek had let them in, although they did not produce an arrest warrant. The police officers then searched the house, confiscating his phone and laptop before dragging him away in handcuffs to the police station.
The conduct of the police and the nature of that alleged offence notwithstanding, how many of us would have just opened the door when the intruders commanded, “We are the Police! Open the door!” and let them in?
Confirming the police officers’ identity first is extremely important, stresses Sevan Doraisamy, executive director of human rights advocate group Suara Rakyat Malaysia (Suaram).
Many Malaysians are too quick to obey whatever the police tell them to do without first confirming the officers’ identity, says Sevan.
“We always advise the public to ask the police to identify themselves and show their identity card when they are stopped on the street by someone who claims to be the police or when the police go to their house,” he adds, highlighting the public workshops on human rights and the police that Suaram has been holding for more than a decade.
It is normal for policemen on duty on the ground to be in plain clothes, which is why it is crucial to establish their identity.
Senior level police officers, from the rank of Inspector and above, carry blue IDs, while constables and below carry yellow cards. Reserve police carry white IDs while red is for suspended policemen.
According to Suaram, when making arrests, conducting raids, roadblocks or body searches, a police officer of at least the rank of Inspector (with a blue ID) must be present.
“You can also ask them which police station they are from and call it to verify the officers’ identity,” says Sevan.
Another safeguard against unlawful arrests or violations of a person’s civil rights is the police warrant.
The Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar has asserted that an arrest warrant was not necessary when the police arrested Sidek at his home in Petaling Jaya, as the alleged offence, over a tweet on the death of PAS spiritual leader Datuk Dr Haron Din, fell under the Communications and Multimedia Act (CMA) 1998.
“For this offence, a warrant is not needed. For offences under the (CMA) Act, there is no need for warrants. There is no need for a warrant to detain and no need for a warrant to search homes,” he reportedly said.
The local legal fraternity was quick to refute him.
According to lawyer Siti Kasim, who represented Sidek’s family, a warrant was necessary in his case as arrests made under the CMA generally requires a warrant.
Lawyer Syahredzan Johan concurred, explaining that although the police have general powers to make arrests without warrants, they can only do so for offences that are listed as seizable offences under the Criminal Procedure Code (CPC), namely those carrying the maximum jail sentence of three years and above.
But for offences under the CMA which carry a maximum jail term of one year, the police would need a warrant when making arrests, he reportedly said.
Conceding that the details of the law might be beyond a layman’s grasp, Sevan advises members of the public to always demand for a warrant when they are being arrested.
What is important, he adds, is that any arrest can only be made after adequate investigation has been conducted on a case.
“You cannot be arrested if you are a witness or just to assist the police in an investigation.
“Always ask if you are being arrested, and for what charge or under what Act. There is no harm in also asking for the warrant,” he notes, adding that in any CMA case, the investigation should first be conducted by the country’s Internet regulator, the Malaysian Communications and Multimedia Commission (MCMC), before any police arrest.
And just like in the American cop movies and television series, when we are arrested in Malaysia, our fundamental rights are guaranteed, as stipulated under the Federal Constitution, the amended CPC and the IGP’s Standing Order on Arrest, says Sevan.
Just don’t expect to be read the Miranda Rights, those words many of us have grown up hearing on the telly: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
Still, as stated on the Malaysian Bar website, our right to remain silent and refuse to answer any questions when arrested is guaranteed by the Federal Constitution.
Under the Constitution, a person also has a fundamental right to be informed of the grounds of his arrest as soon as possible, as well as a right to consult and be defended by a legal practitioner of his choice.
These rights are clearly spelt out and reiterated under Section 28A of the CPC which came into force in September 2007: An arrested person has the right to be informed as soon as may be the grounds for this arrest; to contact a legal practitioner of his choice within 24 hours from the time of his arrest; to communicate with a relative or friend of his with regards to his whereabouts within 24 hours from the time of his arrest; and the right to consult with his lawyer and the lawyer is allowed to be present and to meet the arrested person at the place of detention before the police commences any form of questioning or recording of any statement from the person arrested.
‘Ask if you are being arrested, and for what charge or under what Act. There is no harm in also asking for the warrant’. – Sevan Doraisamy
“We always advise those arrested to remain silent in order not to unknowingly incriminate themselves or be forced to make a confession. You can also say, ‘Saya jawab di mahkamah.’ (I’ll answer or say it in court),” Sevan notes.
As for family members, he advises them to get the name of the police station that the arresting police officers are from and are taking their loved one to.
At the police station, he adds, they need to get the name of the Investigating Officer (IO) of the case and his or her contact details.
“The good thing now is that the police’ public communications have greatly improved, and the IO will usually give out their handphone numbers to the family members,” he says, commending Sidek and his wife, Norlin Wan Musa, who is also a former journalist, for knowing and exercising their rights when the police took Sidek to the Johor Baru police station without informing her, and when they allegedly intimidated her and tried to harass their children.
Unfortunately, says Sevan, many Malaysians don’t know their rights when they get arrested, making it easy for errant police officers to intimidate them or abuse their rights.
Lawyers for Liberty executive director Eric Paulsen concurs, stressing that the police also need to act responsibly and reasonably, in accordance to their Standard Operating Procedure when conducting an arrest.
“The laws like the CPC and IGP’s Standing Order clearly protects a person’s fundamental liberties, but they are also general, especially in their wording.
“They were drafted with the expectation that the police would act reasonably and without bias in accordance to their SOP,” he says, describing the police conduct in the arrest of Sidek and two others in relation to the “Twitter insult” as excessive and an abuse of police powers.
Human Rights Commission of Malaysia (Suhakam) chief Tan Sri Razali Ismail urges the police to defend civil liberties in Malaysia rather than repress the exercise of human rights.
“In essence, the police should be the face of human rights, and not a face of intimidation, even as the police needs to be the bulwark of the country’s security. Regulations are being promulgated in a sweeping fashion that will have the effect of threatening democratic practice and undermine the fundamental liberties enshrined in the Federal Constitution,” he had reiterated in his speech at the Malaysian Bar’s International Law Conference in Kuala Lumpur last week.
Khalid has given assurances that the police are subject to the laws and regulations enshrined in the Constitution.
“If we flout the laws, action will be taken against us. We are also subjected to the laws and regulations under the Constitution. So are the Members of Parliament,” he told a press conference after a dialogue with Universiti Utara Malaysia students in Sintok, Kedah, on the role of undergraduates in overcoming national security threats.
Universiti Sains Malaysia criminologist, Assoc Prof Dr P. Sundramoorthy agrees that nobody should be above the law, especially the police.
“Police personnel who violate criminal laws and other regulations will have to face the consequences. Everyone who gets arrested has equal rights under the Federal Constitution and the CPC, irrespective of the nature of the case, so the police and the prosecution need to adhere to the law without bias. If they did not follow the SOP that is clearly spelt out then they should have to face the legal consequences, ”he says.
Critically, he adds, it is important for the general public to be aware of the laws of the land and their rights.
“Especially now that social media is an integral and pervasive part of our day-to-day lives. People need to be aware of the law – you make choices in life and you need to face their consequences.
“Similarly, you make your choice of tweeting and retweeting something or posting anything and making comments on social media, so you will have to bear the consequences.”
And as Dr Sundramoorthy puts it bluntly, “If you are so good at using social media, you should also be able to source the relevant information on the law and your civil rights online.
“If you are an expert on social media, you should be able to Google the dos and don’ts of when you are arrested, from the Malaysia Bar website and other civil society groups.”