The Rights Of Arrested Persons

As I was casually scrolling my Twitter before going to bed a few nights ago, a devastating video appeared on my timeline. A group of attendees in a peaceful assembly was brutally dragged and thrown into a Black Maria truck. Some of the attendees requested the police to inform them of grounds for their arrest but to no avail. My mouth gaped looking at the videos and I asked myself, are we living in a Taliban state? A few minutes later, I received another update. The attendees were brought to IPD Dang Wangi but they were prevented from talking to their lawyers. I recalled my earlier question, are we living in a Taliban state where fundamental rights are stripped away and almost nonexistent. Are we heading in that direction or are we already in that state?

All the questions kept me awake and I desperately needed the answers. I reached the Federal Constitution on my shelf and perused it. I truly believe that in a democratic country like us, fundamental rights do exist and are guaranteed by the Constitution. Thus, I am writing this short article for all fellow Malaysians so you will become aware of your rights – the rights guaranteed by the supreme law of the land.

Article 5(1) of our Federal Constitution expressly states that no person shall be deprived of his life or personal liberty save in accordance with the law. The term personal liberty in this proviso covers a person’s right not to be subjected to unlawful arrest, imprisonment or other physical coercion. Thus, if a person is arrested not in accordance with the proper procedure as provided by the law, the person’s constitutional right is said to have been breached. Article 5(3) of the Constitution stipulates the right of an arrested person. According to the proviso, an arrested person shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. Article 5(3) provides a general guideline and it is further explained in the Criminal Procedure Code (CPC). Subsection (1) of Section 28A of the Code mandates the police officer to inform the arrested person of his grounds of arrest. In addition, Subsection (2) of the proviso expressly states that the police shall allow the arrested person to contact his family members, relatives or friends to inform them of his whereabouts. Besides, the arrested person shall be allowed to communicate and consult with his lawyers prior to police questioning. During questioning by the police, an arrested person may invoke his right under section 112(2) of the CPC to refuse from answering any question if he believes that his answer may implicate or expose him to criminal charges.

In regard to the manner in how an arrest is made, Section 15(1) of the CPC states that the police is allowed to touch or confine the body of the person to be arrested unless the person surrenders. Here, a police officer is only allowed to touch a person if and only if the person is to be arrested. Therefore, the person has a right to ask the police whether he will be arrested or otherwise. If the police inform the person that he is going to be arrested, the person shall submit himself to the police and if he forcibly resists, the police, by virtue of Section 15(2) may use all means necessary to perform the arrest.

Although the police have a right to use all means necessary to perform the arrest, Section 19(1) does not allow the police to inflict unreasonable or unnecessary force upon the person to be arrested. There is no specific definition to what amounts to unnecessary use of force as it depends solely on the factual circumstances of the case. In situations where a woman is to be searched by the police, Subsection (2) of Section 19 provides that the search shall be made by a female police officer with strict regard to decency.

Another question worth considering in regard to the right of an arrested person is whether the person has a right to record a video of the situation. The plain answer is yes. Nonetheless, it is advisable for the person to inform the police that he is going to record the process and if the police refuse to allow it, the person shall comply. This is to avoid the person from being charged under Section 188 of the Penal Code. However, this is just a precautionary measure but I personally think that it is unreasonable to charge a person who records a video of the process under Section 188. The act recording does not amount to obstruction or annoyance to the police officer in carrying out his duty. Nevertheless, to be safe and to avoid further problems from arising, it is safe to inform and ask permission from the police before doing so. Similarly, one ought to comply with the police instructions and shall not resist arrest to avoid Section 188 from being invoked.

Another important thing that you should always bear in mind during an arrest is to identify the name and ID number of the police. Besides, you should always ask the police to present his authority card prior to the arrest. Authority cards come in different colours; blue for those ranked inspector and above, yellow for officers below the rank of inspector, and white for reserve officers. If the police present a red authority card, you are not obliged to follow their instructions as a red authority card denotes a suspended officer. Finally, if body or bag search is required, volunteer to empty your pockets and bags in their presence in lieu of letting them from doing it.

(Artikel ini adalah tulisan saudara Muhamad Aiman Haziq dan tidak semestinya mencerminkan pandangan pihak Solidaritas)