THE DENIAL OF VIGIL ATTENDEES' LEGAL RIGHTS
“Human rights are our birth right because they come to us from a transcendental source that is prior to and independent of the law of the state.”
Datuk Emeritus Prof. Dr. Shad Saleem Faruqi, December 10, 2019.
On the 19th of August 2021, a group of 31 youths gathered at Dataran Merdeka for a candlelight vigil memorial organised by Sekretariat Solidariti Rakyat (SSR) to honour all the victims of COVID-19. The gathering was carried out in accordance with Article 10(b) of the Federal Constitution (hereinafter “the Constitution''), which guarantees all citizens the right to assemble peaceably and without arms, and the attendees were adhering to strict Standard Operating Procedures (hereinafter “SOPs”). At 8.30 p.m., the Royal Malaysian Police (PDRM) arrived and started seizing attendees’ identification cards. Attendees were then brought to the Dang Wangi Police Station forcibly; their questions on the grounds of arrest were ignored, they were threatened and shoved into Black Marias with cramped spaces, and most were denied legal representation at the police station. The PDRM then clarified that the attendees were brought in for ‘documentation purposes’, with each attendee compounded RM2000.00 on the grounds of violating SOPs. The final group of attendees were released at around 1.30 a.m. after being detained for almost five hours.
This chain of events caused an uproar amongst the people, with many netizens criticising the actions of PDRM and scrutinising the legality of their actions.
As the above issues have garnered public attention, the UM Law Society hopes to provide our collective stance on the matter, from an academic legal perspective.
Excessive Force during Arrest
As the events ensued, many raised the concern of police intimidation and excessive force at play. Snippets of video recordings have surfaced online, portraying the excessive force either by dragging, pulling, or even carrying an attendee without informing them that they have been arrested. This has elicited the issue of whether it was necessary for the police officers to invoke such a level of force towards the attendees.
Section 15 of the Criminal Procedure Code (hereinafter “CPC”) provides for the various ways of how an arrest may be made. Subsection (2) in particular, explains that if a person forcibly resists arrest or attempts to evade such arrest, the officer may use all means necessary to effect the arrest. However, the person effecting an arrest can only exert reasonable use of force when necessitated.
In Mahmood v Government of Malaysia,[i] the court clarified that a police officer is only entitled to use all means necessary — including the use of force — to effect the arrest of a person attempting to evade arrest. In this case, the plaintiff was shot by a police officer despite being given several warnings and a warning shot being fired. Thus, the police officer was found justified in firing the shot to effect the plaintiff’s arrest.
During the vigil, it was reported that some attendees were still met with undue force, despite not resisting arrest.[ii] The exercise of such aggression towards complying attendees should undoubtedly be questioned. Should it be proven that the force exerted was disproportionate, the authority of Section 15(2) of the CPC and Mahmood v Government of Malaysia should be raised to hold the authorities accountable.
Rights of Detainee
Following the questionable intimidation tactics from the PDRM, the rights of the detainees have also garnered much traction. The constitutional guarantee of the rights of an arrested person is divided into two limbs, i.e., the right to be informed of his grounds of arrest and the right to legal representation as soon as may be upon being arrested as stated in Article 5(3).[iii] The phrase ‘as soon as maybe’ in Article 22(1) of the Indian Constitution (which is in pari materia with Article 5) is interpreted in Tarapade[iv] as being as soon as reasonably possible. The fundamental right of an arrested person is also codified in the CPC under Section 28A, which reiterates the rights to be informed grounds of arrest and immediate legal counsel without unreasonable delay.
The decision in Abdul Rahman v Tan Jo Koh[v] emphasised that one is entitled to resist an arrest if the grounds were not made known to him. At present, the circulated video recordings show that the rights of the attendees were not read nor were they given justification to their arrests. When questioned on whether they were arrested, no definite answer was given by the PDRM. Due to this non-disclosure, several attendees rightfully resisted from being taken into custody.
If one chooses to investigate this matter from a different angle, another question will then appear — if there was no arrest made, would the detainment still be lawful?
It then would be wise to highlight the case of Abdul Rahman v Tan Jo Koh again, whereby the judge produced a proposition that a person arrested without being told the reason is entitled to resist the arrest, and any force used to overcome the resistance would amount to assault.
Let it be known that this case also cited Christie v Leachinsky,[vi] which provides a lengthier observation that if a police officer arrests without warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest and not entitled to keep the reason to himself or to produce an untrue reason. Should the citizen be seized regardless, the officer may be liable for false imprisonment. This requirement, however, ceases to exist if the circumstances are such that the citizen must know the general nature of the alleged offence for which he is detained. Further, the person arrested cannot complain that he has not been supplied with such grounds, if he himself produces the situation which makes it impossible to inform him, e.g., by running away.
Observing snippets of video recording available online, there have been instances of arrests by police officers without having the attendees’ rights and grounds of arrest read to them. Following the precedent set by Abdul Rahman v Tan Jo Koh and Christie v Leachinsky, assuming that the grounds of arrest were truly missed out by the authorities; then it could furnish grounds for tort offenses such as assault or false imprisonment.
Moreover, the Constitution via the second limb of Article 5(3) also guarantees the right of a detainee to consult and be defended by a lawyer of his own choosing. This right is available during both the arrest and the trial stages.[vii] Despite that, it must be noted that the position in Malaysia in effect is that the right to counsel is merely a manifestation of the general right.[viii] The Federal Court in Ooi Ah Phua v Officer-In-Charge Criminal Investigation, Kedah/Perlis[ix] has recognised that the right of a detainee to consult his/her lawyer begins from the moment of arrest. However, the Court also held that the said right cannot be exercised immediately after arrest. The rationale of the decision flows from the need to strike a balance between the right of a detainee to consult his/her lawyer and the duty of the police to investigate and gather evidence.
Furthermore, the right to counsel is also expressly provided by Section 28A(2)(b) and subsections (3), (4), (5), (6) of the CPC, a statutory embodiment of the principle explained above. Be that as it may, similarly, the law permits the suspension of the right to counsel in order to ensure the investigation against the detainee can be performed smoothly without any impediments.[x]
It was reported that as many as thirteen lawyers gathered at the police station. However, only two lawyers were allowed to enter and meet the detainees, while the others had to wait outside the gates.[xi] We acknowledge the rights of the police to execute their duties of processing the detainees. That said, it is open for the detainees to initiate a legal proceeding if they believe the police have deliberately and with bad faith obstructed them from exercising their constitutional right to counsel.[xii]
The Sanctity of Constitutional Guarantees and the Need for Systemic Reforms
The UM Law Society believes that law enforcers’ primary obligation is to act in accordance with the law, ultimately the Constitution. One’s fundamental rights must always be preserved at every juncture, regardless of status or background. The Constitution acts as the compass and anchor to our nation; it lays down individuals’ obligations whilst protecting their rights from being stripped away. Denying such rights amounts to dishonouring the supremacy of the Constitution and illustrates the dwindling freedom of the people.
The vigil attendees were compounded for violation of SOPs and are being investigated under Section 9 of the Peaceful Assembly Act 2012,[xiii] which concerns on notification of assembly. Whilst the very reason of the compounds is to curb the spread of COVID-19, hauling the attendees into cramped spaces of the Black Marias is rather an ironic step by the police force. Moreover, the actions taken against the attendees are disproportionate to the reason why they are brought to the police station, which is for documentation purposes.
It should be noted that this is not a shocker to the nation as many instances in the past have shown how the police force have seemingly skewed in enforcing the law. This includes double standards in enforcement of SOPs, issues surrounding custodial deaths, and more. The recent incident is a reminder to many on how our guaranteed rights are not definite until necessary reforms are made to address deeply rooted institutionalised issues. Such reforms include the revival of the Independent Police Complaints and Misconduct Commission (IPCMC).
We stand firmly that the denial of rights, intimidation, and excessive force to the vigil attendees are wrong and should be condemned, as we advocate for a fair and just administration of laws in Malaysia.
The views and opinions expressed in this press statement do not necessarily reflect the official position of the University of Malaya Faculty of Law and the University of Malaya respectively. It should also be noted that for the sake of conciseness, the UM Law Society has only selected a few issues to elaborate, and these may not represent the whole picture of the incident.
UM Law Society 21/22
[i]  1 MLJ 103 [ii] Choong, J. (2021, August 20). Cops Say Attendees of #Lawan Candlelight Vigil under Prob, Fined RM2,000 Each. Yahoo! News. https://malaysia.news.yahoo.com/cops-attendees-lawan-candlelight-vigil-022621263.html [iii] Article 5(3) of the Federal Constitution [iv]  S.C.R. 212 [v]  1 MLJ 205 [vi]  AC 573 [vii] Faruqi, S. S. (2012, March 7). Every one has right to counsel. The Star. https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/every-one-has-right-to-counsel. [viii] Hashim Bin Saud v Yahaya Bin Hashim & Anor  2 MLJ 116 [ix]  2 MLJ 198 [x] Datuk Hasanah Abdul Hamid v Suruhanjaya Pencegahan Rasuah Malaysia & Anor  10 CLJ 191 [xi] Razak, R. (2021, August 19). Police Arrest Attendees of #Lawan Candlelight Vigil at Dataran Merdeka. The Malay Mail. https://www.malaymail.com/news/malaysia/2021/08/19/police-arrest-attendees-of-lawan-candlelight-vigil-in-dataran-merdeka-video/1998934. [xii] Theresa Lim Chin Chin & Ors v Inspector General Of Police  1 MLJ 293 [xiii] Free Malaysia Today. (2021, August 20). 31 Covid-19 Vigil Participants Fined RM2,000 Each. Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/08/20/31-covid-19-vigil-participants-fined-rm2000-each/