Know your rights

Written by John Lim, The Edge

Arrested? Don't panic.

There have been an alarming number of arrests over the past week related to the detention of Wong Chin Huat and the Perak State Assembly.

Ordinary citizens, protesters, and even lawyers have been hauled up. However, many are oblivious about their rights upon being arrested, which could lead one to be intimidated or abused by the police.

The Edge Malaysia gives readers a summary from the Bar Council's Red Book, which advises Malaysians what they should do if they are arrested by the police.

Stop!

If stopped by a police officer not in uniform, one should ask the officer to produce his/her Police authority card, which denotes the officer's rank and name:

Types of police authority cards

Red: Suspended police officer, who has no authority to do anything to you.

Blue: Inspector and above

Yellow: Below rank of inspector

White: Reserve police

Always note the name and ID of the police officer.

On being stopped, you are only obliged to give Personal Particulars: full name, age, address, and occupation.

Am I under arrest?

If the officer continues to ask for more, you can ask “Am I being arrested?” before proceeding. You are arrested if the officer says yes, doesn't allow you to leave, wants to take you to the police station, or handcuffs you.

Before arresting you, however, the officer must give a reason for the arrest. Also, the officer cannot arrest you if you are only deemed a potential witness or want to take a statement.

Post-arrest

If you are arrested, you do have several rights that you should exercise. The first thing you should do is make a call to inform a relative or friend, as well as find legal counsel.

The Legal Aid Centre (details below) is an alternative resource should you not have a personal lawyer to contact.

Inform the following details of the time, place, and reason for the arrest, as well as the Police station that you are taken to.

Once a presence of a lawyer is requested, you have a right to consult the lawyer before giving a statement to the police.

Other Rights

- You are allowed to have one set of clothing with you in lock-up

- Personal belongings are to be recorded, placed in safe custody, and returned upon release.

- You are allowed to bathe twice a day, and have access to medical attention, food and water.

Doing time

The police can detain you for up to 24 hours only.

For any period longer than that, the police have to obtain a Remand Order from a Magistrate, to whom the police must give reasons why it is necessary to detain you for more than 24 hours.

Questioning

A person under arrest does have a right to remain silent by answering the questioning officer “I will answer that in court.”

In giving a statement (known as a 112 Statement), it is advised that you have a lawyer present. You also have the right to refuse to answer a question if the answer is likely to incriminate yourself.

The statement given here can/will be used against you in court to prove that you have admitted or confessed to committing the criminal offense charged, or admitted to certain facts that tend to show you are guilty of the offense charged.

During this time, the Bar Council advises you to do the following:

- Bring along a notebook or writing paper, writing down every question asked. If you don't have a notebook and/or pen, request for them.

- After carefully considering each question, write down your answers before reading them to the police officer.

- Before signing to confirm the 112 Statement, compare it against what you have written down in your personal notes. You have to right to correct or change the statement before signing it.

- If you have been threatened, beaten or forced to make a statement, it's within your rights to lodge a police report against the offending officer.

- What you have said in the statement can/will be used against you in court to prove that you have admitted or confessed to committing the criminal offense charged, or admitted to certain facts that tend to show you are guilty of the offense charged.

Body Search

A police officer can perform a body search upon arrest if they suspect you have evidence relating to a suspected offense.

However, it is advised that you request the body search be done while accompanied by a lawyer. The search must be done in a confined place, and it is within your rights to be searched in private. Only a female police officer can conduct a body search on females.

There are four types of body searches:

1. Pat down search, where only the outer clothing is searched

2. Strip search, which is done to search for concealed evidence, object, contraband or weapon. This can only be conducted with the authorisation of an officer ranked inspector and above ( i.e., those with blue Police Authority Cards).

3. Intimate search, where a search is conducted beyond the mouth, nose, and ears. This can only be conducted with the authorisation of an officer ranked Assistant Superintendent and above.

4. Intrusive search, which is done to find objects in the body. This can only be conducted with the authorisation of the Officer in charge of the Police District and must be carried out by a Government Medical Officer or Medical Officer.

Seeking help: Legal Aid Centres

Kuala Lumpur Tel: 03-2691 3005 / 2693 2072

Selangor 03-5510 7007

Negeri Sembilan 06-6013 844

Melaka 06-2845 519 / 06-2864 514

Johor 07-2235 698

Perak 05-2550 523

Kedah & Perlis 04-7333 467

Kelantan 04-7448 660

Pahang 09-5159 244 / 09-2969 410

Pulau Pinang 04-2617 451 / 04-3316 830