What is the conflict between Article 5(3) and Section 28A?

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Conflict Between Article 5(3) and Section 28A of the Criminal Procedure Code

The core of the legal conflict lies in the perceived contradiction between Article 5(3) of the Federal Constitution, which guarantees an arrested person the right to consult a lawyer, and Sections 28A (8) and (9) of the Criminal Procedure Code (CPC). These sections of the CPC, as argued by the defence, grant law enforcement agencies like the police or the Malaysian Anti-Corruption Commission (MACC) broad authority to suspend this constitutional right during a remand period. This suspension, if interpreted as an unlimited power, is seen as diluting the civil liberties protection afforded to individuals upon arrest.
Constitutional Right to Legal Consultation

Article 5(3) of the Federal Constitution explicitly states that an arrested person must be informed of the grounds for their arrest and allowed to consult and be defended by a legal practitioner of their choice. This provision is a cornerstone of civil liberties, ensuring that individuals are not left without legal counsel when facing detention. The right to consult a lawyer is fundamental to ensuring fairness and preventing potential abuses of power during the initial stages of an investigation.
Statutory Provisions for Suspension of Rights

Sections 28A (8) and (9) of the CPC introduce provisions that allow for the suspension of certain rights, including the right to consult a lawyer. These sections state that such constitutional rights can be suspended by a senior police officer if there is a concern that the investigation might be interfered with. In the case of Datuk Hasanah Abdul Hamid, the MACC issued a notification letter under these provisions, effectively prohibiting her from consulting her lawyer during her six-day remand period. This action formed the basis of her lawsuit, arguing that the application of these sections amounted to a complete denial of her constitutional rights.
Judicial Interpretation and Appeal

The High Court initially dismissed Hasanah's lawsuit, ruling that Sections 28A (8) and (9) did not deny the right to counsel but rather provided for the suspension of these rights during the remand period. However, this interpretation is being challenged in the Court of Appeal. During the appeal hearing, a judge noted that legislation should not be used in a manner that undermines the Federal Constitution, which is the supreme law of the land. The argument presented is that while Parliament may amend the law, the current provisions, as applied, are in conflict with Article 5(3) and have been abused in practice, leading to a total denial of access to legal representation.

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What is the conflict between Article 5(3) and Section 28A?

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