Memorandum of Protest to the IGP on the Police’s Manhandling and Brief Arrest of Lawyer Amer Hamzah Arshad

Memorandum of Protest to the IGP on the Police’s Manhandling and Brief Arrest of Lawyer Amer Hamzah Arshad at the Jalan Duta Court Complex,

Bukit Aman, 31 March 2010

Introduction

On 25th March 2010, Khaeryll Benjamin Ibrahim@ Benjy was charged for drug possession of 0.24 gram methametphamine under Section 12(2) of the Dangerous Drugs Act 1952 at the Magistrate’s Court at the Jalan Duta Court Complex. Benjy pleaded not guilty and his lawyer Amer Hamzah Arshad, as is common practice for bailable offences, obtained bail for his client which was duly posted by Benjy’s mother, Azean Irdawaty.

As soon as the bail processing was completed at the bail processing counter, about 10 unknown persons in plainclothes suddenly converged on Amer and his client and ordered the client to go with them. This happened in full view of those present including court staff, members of the public and Benjy’s mother and other family members. The plainclothes men claimed that they were policemen but did not produce any identification documents or other proof when they approached Benjy.

Amer demanded that they provide proper identification as well as to explain the grounds for his client’s re-arrest. It was only after Amer repeatedly asked them to show their identification, did a person who claimed to be a police inspector, flash a card that resembled a police identification card. That person said that the arrest was effected under the Dangerous Drugs (Special Preventive Measures) Act 1985 (i.e. a draconian law that allow for detention without trial). Few men then held Amer on both arms restraining him (which tantamounts to assault under the law) and separated him from his client. Amer protested his treatment, and repeatedly asked the police to refrain from touching him and that he be released immediately. Benjy’s mother also demanded that the men explain their conduct but was only told to go the Ibu Pejabat Kontinjen Kuala Lumpur. Amer was released from his brief arrest as his client was bundled away by these men who claimed to be policemen. It was only after being released from the said brief arrest that Amer managed to ensure that his client was not harmed in that process.

Our Protest

Whilst we understand that the police have an important and onerous job to prevent and combat crime, the police must understand that the wide powers of arrest and detention cannot be abused and used arbitrarily. As a professional police force, they should be guided by the law and legal processes in the country and not act with impunity and complete disregard for constitutional and judicial safeguards.

This is unfortunately symptomatic of the police’s inability to act professionally as a police force that can work within a modern criminal justice system and not resort to preventive measures that do not require any real police work and diligence. The police should instead strive to be a modern and professional force that conform to international standards and best practices and not regress to wrongful practices that have caused the public to lose so much confidence with the police force.

In May 2009, the Malaysian Bar, in an EGM had came out with strong resolutions on the arrest of the 5 lawyers from the Bar Council’s Legal Aid Centre when they went to see their clients at the Brickfield Police Station (as attached), but unfortunately the resolutions just remained resolutions without any improvement in the standard of police conduct.

The unlawful, oppressive and arbitrary actions of the police on 25th March are a gross interference with a lawyer carrying out his duty to his client. Amer was discharging his duties in the best traditions of the Malaysian Bar, when he sought explanation from the police as to why his client was being re-arrested. Despite being surrounded by police, he continued to speak out for his client, as he was bound to do.

The aggressive and unlawful response of the police is a reflection of the general arrogance and lack of respect for the Federal Constitution, the rule of law and other legal procedures. This is not an isolated incident but a continuation of a long standing series of acts by the police that showed their contempt for the legal profession and the legal processes:

• the arrests of 5 lawyers from the Bar Council’s Legal Aid Centre;

• the persistent denial of the right to counsel as guaranteed by Article 5 of the Federal Constitution and section 28A of the Criminal Procedure Code;

• the constant attempt by the police to take statements from lawyers who accompany their clients for questioning, especially in “politically” motivated cases;

• the common practice of re-arresting suspects under preventive detention laws in order to bypass the judiciary.

The matter is aggravated by the fact that Amer’s client was being arrested at the Court Complex immediately after his release by the court under an oppressive preventive detention law that violates his constitutional and human rights. This is a flagrant contempt of judicial authority and the legal process. The Malaysian Bar has also forcefully and repeatedly called for the repeal of all preventive detention laws and for such re-arrests to cease.

Our Demands

The Inspector General of Police must:

a) take stern action against the policemen who manhandled and briefly arrested the lawyer and the officer who was in charge of the operation;

b) undertake not to further interfere with lawyers carrying out their duties;

c) stop the unjust practice of re-arresting under preventive detention laws persons released by court;

d) undertake to respect the right of the Malaysian public for unimpeded and free access to lawyers at all times;

e) require the police especially those in plainclothes to identify themselves and display their authorization when affecting their powers;

f) issue a public apology to all concerned; and

g) support the establishment of the IPCMC in its original form to serve as an independent external mechanism oversight.

Editorial Note: Suggested reading –

Lawyers To Deliver Memorandum of Protest 31 March, 12 pm

NH Chan’s From Judges to Gestapo Type Police: Tyranny of abuse of power