RIGHTS OF ARRESTED PERSONS IN MALAYSIA
You or your loved ones are arrested.
What’s the best thing to do now? Appoint your preferred lawyer.
However, in numerous cases, this appointment is not done immediately and is only dealt with during the “Remand Proceedings”.
What Not To Do?
It is important not to retaliate when an arrest is being made by the men in blue. As the saying goes, “retaliation may be futile” and this may bring about separate charge(s) against you. As difficult as it may sound, it is for your best interest to stay calm and follow the orders given when you are being arrested. Your rights to challenge an arrest normally arises after the arrest is made.
What About My Rights?
Having said that, the law grants you certain protection when you are under arrest. The remainder of this article provides some insight on what these protection(s) are.
- If you are being arrested by a police officer without a warrant, the arresting officer has a duty to inform you of the grounds of your arrest. This may not be during the arrest itself but the law requires that the grounds be informed as soon as possible.
- You have a right to communicate with anyone you wish, to inform them of your whereabouts AND to communicate with a lawyer of your choice. This communication must be accommodated by the police officer(s) and must be done before any questioning or recording of statement is done.
- However, there is a catch; i.e. such request may be denied if the police officer believes that compliance of such rights will likely result in an accomplice taking steps to avoid apprehension or that there is a risk of concealment, fabrication or destruction of evidence, or the intimidation of potential witness(es).
- This denial can only be made upon an authorization by a police officer not below the rank of a Deputy Superintendent of Police.
- During detention, your statement will be recorded. This is commonly known as the "Section 112 Statement". This is where a series of questions are asked by the police officer in relation to the purported grounds of arrest. You have a right to remain silent during the exercise of taking a “Section 112 Statement”.
- Your innocence will not be affected because of your choice to remain silent. This is because, the Court acknowledges that the "right to remain silent" is an inherent right of any individual. However, if your answer is detrimental during the "Section 112 Statement" exercise, answers that you have provided may be used against you for the purpose of impeachment. In some cases, the "Section 112 Statement" may act as a defense for you. In drug trafficking cases, this defense is commonly known as the 'Alcontara Notice'.
- A police officer can only keep you in detention for a period not exceeding 24 hours by his own accord. For detention beyond this 24 hours, intervention of Court is required. This extension of duration of arrest is known as a remand application. However, do note that the remand of application will not be necessary if the police officer is able to produce and charge you in Court within the first 24 hours of arrest.
- A remand application basically means that an extension of duration of arrest is allowed, pending further investigation. The duration varies in accordance to the offence that you have allegedly committed and that is presently being investigated for. It is important to note that legal representation during "Remand Proceedings" is important as there are many legal aspects that require detailed consideration. If the accused is a foreigner, the Court will ordinarily grant a 14-day remand period.
- In the event the remand period has expired and investigation has yet to be completed, an extended "Remand Order" may be applied for by the Investigating Officer.
- Upon the expiry of the said extended "Remand Order", the Investigating Officer must produce and charge the accused in Court. If for any reason, the Investigating Officer is unable to charge the accused, the accused must be released from custody. Any further detention beyond this period may be deemed illegal.