It’s late. You’re driving home and all of a sudden, you see a police road block in front of you. You assume that it’s some kind of operasi because of how late it is but...they gesture for you to pull over. You sigh and pull over, pulling out your licence. As you wind your window down, the officer tells you to step out of the car.
You are confused because it’s never escalated to this point. As you step out, the police tell you that they are placing you under arrest and taking you back to the station. You sputter your innocence and start to panic but wait...your best friend is a lawyer!
You whip out your phone and ask to call your lawyer but the police tell you that you can’t do that and lead you away.
To kick start our discussion on can they do this, the first thing to know is…
You have rights even when arrested by the PDRM
- The right to remain silent
- The right to be informed of the true grounds of your arrest
- The right to a lawyer
- The right to communicate with relatives or friends
- The right to appear before a Magistrate within 24 hours of your arrest (weekends are a different story though, you have to wait until the court reopens on Monday)
These are the five essential rights that you would have when arrested and they can be found in section 28, section 28A, and section 112 of the CPC respectively. For the purposes of this article, let’s zoom into the right to a lawyer in section 28A:
“A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may...communicate or attempt to communicate and consult with a legal practitioner of his choice.”
In essence, the section tells us that before the police questions you, they must inform you that you can contact your lawyer. Aside from that, they must also reasonable time for your lawyer to come and for you to have a consultation with him (section 28A(4)).
Aside from giving reasonable time to your lawyer to consult with you, the officer must also defer questioning until after the consultation and provide space and facilities for you to consult with your lawyer.
In essence, if you are ever arrested, you can request for time to contact your lawyer and then wait for him to save the day. With that being said, before you lift your pitchfork and scream for blood…
The police can delay giving you your right to see a lawyer
The keyword here is that they can only delay it but they cannot deny it. Section 28A(8) tells us that a police officer can prevent you from seeing your lawyer if they believe that by doing so, it would result in these scenarios:
- You giving information to your accomplice for them to avoid arrest
- Destruction of evidence
- Intimidation of witnesses
Aside from all these scenarios, the police can also delay your right to a lawyer if they think that it is paramount to question you as quick as possible in order to ensure the safety of other persons. This is how the section reads:
“The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that—
(a) compliance with any of the requirements is likely to result in—
(i) an accomplice of the person arrested taking steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.”
Once they believe that the threat of the scenarios above happening have passed, then they must allow you to call your lawyer. In addition to all this, the authorisation to delay your right to a lawyer can only be given by a policeman not below the rank of Deputy Superintendent of Police.
The right to a lawyer is always there
Even if you have been arrested for heinous crimes, the police can only delay you the right to a lawyer for as long as it takes them to ensure that you won’t divulge information to protect your accomplice, destroy evidence, intimidate witnesses, or harm the safety of others.
This is because everyone is always presumed innocent until found guilty and are entitled to proper legal representation. If you feel like your rights have been infringed, you can always bring a civil suit (sue) but this is very case dependent and you should probably consult a lawyer before taking further action.