Opinion: Rights and duties in pursuing justice

Source: http://www.nst.com.my/Monday/Columns/20060508072203/Article/index_html

Opinion: Rights and duties in pursuing justice
08 May 2006

The police, prosecutors, defence lawyers and judges all play a role in ensuring a fair judicial system. Thus, arresting a lawyer whos carrying out his duties, without justifiable reason, is tantamount to abuse of power, writes YEO YANG POH.

A LAWYER receives information that a client has been detained by the police. He goes to the police station in which the client is believed to have been detained. He wants to provide legal services to the client. That is his job, his right, his obligation.

To do so, he requires co-operation from the police. He needs information, such as confirmation of the arrest, reason for the arrest, information regarding any proposed remand application, and access to his client. If he receives sufficient information and co-operation, he will be able to carry out his duties.

However, if reasonable co-operation is not forthcoming, the lawyer will be “stuck”, and unable to proceed. Being stuck is not a nice feeling. Then, the lawyer may usually do one of two things. He may resign himself to the situation of helplessness, and accept that his client will have to go without legal assistance in the meantime. Or, he may persist in demanding sufficient co-operation, and refuse to budge, insisting that it is within his (and his clients) rights to be given proper treatment and co-operation.

If the lawyer opts for silent resignation, and walks away without argument, there will be peace and quiet in the police station. But justice will be in tumult. The lawyer who retreats at the first hurdle would not have given his best. The client, who deserves legal assistance, will have to suffer without it for the time being. The justice system that is supposed to ensure fairness every step of the way will have failed this detainee.

Unfortunately, apart from the few persons involved in the incident, the rest of society carries on happily, oblivious to such an event and its significance. And, if incidents of this nature are frequent rather than isolated, not only is justice in tumult, but it is in secret tumult, away from public view.

On the other hand, if the lawyer chooses to persist in his pursuit to serve his client, and insists on being granted co-operation, then, if the police refuse to budge, the tranquility of the police station would be broken. A “situation” will arise. Words will be exchanged, perhaps harsher ones as the incident progresses. Frustration will form, and worsen. Emotional temperatures will rise.

Now, imagine that the police not only stand their ground, but decide to arrest the lawyer, possibly to stop him from being “difficult”. With the arrest, tranquility returns to the police station.

But justice will be in tatters.

Refusing the demands of a lawyer is one thing, the reasonableness or otherwise of which will depend on the facts of a case. But arresting him for no apparent reason other than wanting to put an end to his demands is something else, and something unacceptable.

What is hoped to be achieved by such an arrest? Is it to teach the lawyer a “lesson”? What lesson might that be? A lesson about who has the power in the circumstances and who has no choice but to be subject to that power? Or, is it to make an example of him, so that other lawyers will in future think twice before being “difficult”, never mind the pursuit of their duties?

Arresting a lawyer in the course of his duty in the circumstances described above cannot be justified without the most exceptional and demonstrable reasons, reasons that are incumbent upon the police to illustrate convincingly. Anything short of that makes the arrest an abuse of power.

It is an abuse of power that amounts to an obstruction of the course of justice.

The police, prosecutors, defence lawyers and judges are all part of our criminal justice system. Each plays a different role, but all of them are essential to make the system a fair, meaningful and effective one. Their roles are of equal importance, none of which is subservient to another. Any unwarranted prevention of any of them in the performance of their duties will affect the integrity of the entire system, and is thus an obstruction of the course of justice.

That is why, when recently a member of the Bar, one S. Bala, was arrested and detained at the Petaling Jaya police station when he went there to provide legal assistance to his clients, lawyers were outraged.

Forty lawyers staged a peaceful demonstration at the station, and handed a protest note to the OCPDs representative, as the OCPD had declined to receive the document in public. Representatives of two state Bars met the state CPO, and registered their protest. A meeting with the Inspector-General of Police has been sought by the Bar Council to discuss the incident and related matters.

The Malaysian Bars message is clear. No one should obstruct justice. Lawyers must be allowed full latitude to play their crucial role in the justice system, and to carry out their duties without intimidation.

The police have promised an investigation. However, not- withstanding the best of intentions, an issue remains concerning the suitability and credibility of an internal investigation. It is natural for those concerned, if they had abused their power, to deny the same unless and until incontrovertible evidence becomes available.

It is also not at all easy to expect any enforcement agency to act against its own personnel without the slightest wish, consciously or subconsciously, to try not to portray the department in an unfavourable light.

This brings us to what most Malaysians know and believe the country needs, namely that no real improvement and credibility will be achieved with regard to the police force unless and until the IPCMC (Independent Police Complaints and Misconduct Commission) is established in substantially the same manner as proposed by the Police Commission.

If things are by-and-large fine and police abuse is rare, as opponents of the IPCMC would like us to believe, the IPCMC will reveal the same and place the police in the good light that they deserve.

If it is otherwise, the IPCMC will bring about changes, and restore credibility and confidence in the police force. Either way, the IPCMC will serve its purpose.

Either way, there is nothing to lose for those who have nothing to hide.

The writer is president of the Malaysian Bar.