Law Society reacts to findings of Malaysian human rights commission

23 April 2010

The Law Society of England and Wales reacted to the findings of the Malaysian Human Rights Commission, [SUHAKAM], which has today released its report on the controversial arrest and detention of 5 legal aid lawyers in early 2009.

The Law Society has welcomed the findings and has been closely monitoring the proceedings.

English solicitor Shubhaa Srinivasan attended the public inquiry in Kuala Lumpur on behalf of the Law Society and the Solicitors International Human Rights Group ("SIHRG") in the summer of 2009, and was permitted to put questions to the witnesses to gave evidence to the Commission.

The lawyers, part of a Malaysian Bar Council legal aid program, had been called to a police station on 7 May 2009 to represent clients arrested after a peaceful political demonstration, but soon found themselves in the same lockup. The case brings into sharp focus the challenges faced by lawyers in discharging their public interest role in providing legal representation.

In its findings, the Human Rights Commission said that the police’s decision to arrest the lawyers (for allegedly participating in an illegal assembly) was unlawful and a violation of their human rights. The Commission was particularly critical of the two senior most police officers at the station, whose actions "in bad faith" led to the human rights violations. While recommending that the police acquire a better understanding of local and international human rights law, the Commission fell short of recommending that any disciplinary action be taken.

Ms. Srinivasan said, "It is now up to the police force and Government institutions to study the Commission’s findings so that important lessons can be learnt and implemented. One of the things to seriously consider is the implementation of the Police Complaints and Misconduct Commission, something SUHAKAM has recommended in the past."

Law Society President Bob Heslett said, "the Law Society will continue to actively support the Malaysian Bar Council and the legal profession in Malaysia in their efforts to uphold the independence of the legal profession and respect for the rule of law."

Background

English solicitor Shubhaa Srinivasan observed the public inquiry conducted by the Malaysian Human Rights Commission into the arrest and detention of the 5 lawyers. The lawyers, who were part of a Malaysian Bar Council legal aid program, had been called to represent demonstrators who had earlier been arrested and detained by police. Upon their arrival at the police station, the lawyers themselves were arrested and detained. They were denied access to their clients throughout the period of their detention, detained overnight, forced to wear ‘lock-up’ attire and released the following day without being given any reason for their arrest or detention. To date none of the lawyers have been charged for any offence.

In light of the concerns expressed by the Malaysian Bar Council regarding the impact of this incident on the ability of lawyers to carry out their professional duties, the Malaysian National Human Rights Commission (SUHAKAM) agreed to investigate the matter by holding a public inquiry.

The Law Society was extremely keen to independently monitor the inquiry as we believe that it is in the common interests of the legal profession throughout the world to promote the public interest role that lawyers can and should play in society, a fundamental norm in any democracy.

The right to access to counsel and for a lawyer to meet with his or client is a fundamental facet of the rule of law as recognised under norms of international law as well as the Malaysian constitution.

Notes:

The right to counsel is recognised under Art 5(3) of the Federal Constitution of Malaysia.

The UN Basic Principles on the Role of Lawyers states:

Article 1: all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings

Article 2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.

Article 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Article 17 Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.