Know Your Rights - Rights Under Remand
Nellie* has been going out with Harris* for four months. Unknown to Nellie, Harris is in fact suspected of drug dealing by the police.
In time, Nellie broke up with Harris and lost contact with him for several days. Soon after that, the police arrested her and brought her to the police station. They informed her that it was in relation to Harris' drug dealing. She was put in a lock-up, and was told that she would have to stay there for the night. Having never faced such situations before, Nellie was unsure what she was entitled to do or if she could contact anyone to help her about her situation. What are her rights?
Your fundamental liberties as a Malaysian citizen are protected under Part II of the Federal Constitution. Amongst other things, Article 5 states that:
"Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice."
"Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority… "
This means that there are mechanisms within the law to ensure that you are not subjected to detention without appropriate legal reasons, and that your arrest will not be for an undue period of time.
If the police for any reason arrest you, below are a few things you should know:
How to define arrest? Only when….
- The police say, "You are under arrest".
- The police handcuff you.
- You are prevented from leaving a room, a site etc. by the police.
What if you are stopped by the police (while walking away, driving home etc.):
- You may be questioned. You are not required to state anything other than your personal particulars. This means your name, IC number and address.
- It is important to note that you are not required to answer any other question which may be posed to you unless you wish to do so.
- Always ask for the police's identification. Take down the police officer(s)' name(s) and identification (ID) number(s).
- You should also take down the number of the patrol car.
If you are asked any questions other than your particulars:
- Ask the police if you are under arrest.
- If s/he says yes, you have a right not to answer any further questions. You only have to answer questions in court.
- If s/he says no, you may leave at any time.
If you are being arrested:
- Alert the people near you.
- If you have a handphone, call your family, friend or lawyer. Tell them where you are arrested, and ask them to go to the nearest police station in the area to verify your arrest and whereabouts. If you do not have a handphone with you, insist on calling your friend, family or lawyer when you are taken to the police station.
- Note down the time you were arrested.
After the arrest, the police must tell you:
- The reasons for your arrest, i.e. why they are arresting you.
How long will you be detained?
- The police can only keep you in the lockup for 24 hours. As stated above, this is your right as protected under the Federal Constitution.
- If the police think that they need to keep you for more than 24 hours, they must bring you to the Magistrates Court to apply for a remand. This means detaining you in the police lockup further to assist them in their investigations.
- If the police is able to convince the Magistrate that a remand is necessary to facilitate their their investigation, the Magistrate can only authorise further detention for a period not exceeding fifteen (15) days from the date of arrest (Section 117 of the Criminal Procedure Code).
- There is no limit to the number of extensions applied by the police and granted by the Magistrate as long as it doesn't exceed the fifteen-day period.
- If after the remand has ended; or if a remand is not given to extend your detention after 24 hours, you will either be:
- released unconditionally;
- released on police bail (jamin mulut) where you will need to present yourself at the police station or court at a specific date; or
- charged in court for the offence that you have allegedly committed. If you are charged, you will need a bailer and money unless the offence is not a bailable one.
In the lockup:
- You can't bring anything into the lockup except the clothes you have on. When the police take your things away, you must sign for it. If you have money or bank/credit cards, make sure you count your money and make the police write down how much money and which bank/credit cards you have.
- If you should need any basic necessities like sanitary pads or medication during your stay in the lockup, you can ask the police officer for it.
- According to the Lockup Rules; if you are a woman, only women police officers are allowed to deal with you, and no men are allowed in the woman's lockup area. Male police officers are not allowed to be in the women's lockup area unless accompanied by female police officers.
- You may be asked to give a 113 statement (cautioned statement - statement from the suspect). The police officer taking your statement must read you your rights.
- Be aware when answering questions put by the police. It may be in the form of the weather, your family etc. to relax you. Note that whatever you say can be used against you in court. The police's work is to make sure that they have enough evidence to charge you, not to have friendly conversations.
- If the police ask you to give a 113 statement, you have to give your personal particulars. For future reference, find out the name of the investigating police officer. You do not have to answer any other questions until you are heard in court, together with a lawyer so that you can have the benefit of legal advice and protection. Again, please note that whatever you may say can be used against you or your friends. You may want to answer questions put before you with, "I will only answer all questions in court."
- If the police officer who is taking your statement threatens you verbally or behave in a threatening manner, stop giving your statement immediately. Stay calm and tell him/her that you are not able to continue giving your statement because s/he is threatening your safety, and that you want it to be recorded in the statement. If s/he continues to threaten you, leave the room if you can and inform other police officers present about his/her behaviour, and ask for their protection.
- When you have finished answering their questions, you can read your statement. The officer will ask you if you have anything to add, change or delete. This is where you can correct any mistakes on the statement or add any other comments. If you have been threatened or hurt during questioning, this is an opportunity to say it. The police officer must type out the statement, and you will be asked to sign it. Before doing so, read the entire statement thoroughly and sign your name as close to the last paragraph as possible so that no one can add anything later.
If you are brought before a Magistrate (for Remand)
- Insist on a lawyer and legal representation. If you do not have a lawyer or can't afford one, call the Legal Aid Centre. In Kuala Lumpur, the Legal Aid Centre has lawyers stationed at the courts for this purpose. Get in touch with any of them.
- If you have any grievances (e.g. if you were threatened, feeling ill or need to go to the hospital or clinic for any medical check-up), tell the Magistrate.
If you are brought in front of a Magistrate (for Charge)
- Again, insist on legal representation.
- Make sure you have someone to bail you out. If you are not able to contact your family or friends, ask permission from the Magistrate to help you get in touch with them. Alternatively, you can ask your lawyer.
- Your bailer will have to bring money to bail you out. This must be in the form of an account opened in a bank closest to the courts. Ask the Magistrate or your lawyer where this is. No other form of payment (cash, cheque etc.) is accepted by the courts.
If you need any further information or advice, contact the Legal Aid Centre at 03-2691 3005/03-2693 2072 or SUARAM at 03-7784 3525.
(Special acknowledgement and thanks to HAKAM and SUARAM for their assistance)
*Names changed to protect WAO's client's confidentiality.
Prepared by Jaclyn Kee
Women's Aid Organisation - 20 Years of Service to Women and Children
Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)