LETTER | Human rights and media advocacy groups have condemned Home Minister Saifuddin Nasution Ismail’s justification for journalist Rex Tan’s arrest.

But strictly speaking, there is nothing wrong with Saifuddin’s justification for Tan’s arrest, explaining that the police actions in Tan’s arrest were not an act of suppression, but merely “due process” to ensure compliance with the law.

What the human rights and media group should call for is reforms to the law on arrest in Malaysia.

More than 10 years ago, Indian Supreme Court Judge Chandramauli Kr Prasad, who delivered the judgment of the apex court in Arnesh Kumar vs State of Bihar & Anor [2014] said:

“Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it, and so do the police. There is a battle between the lawmakers and the police, and it seems that the police have not learnt its lesson; the lesson implicit and embodied in the Indian Criminal Procedure Code.

“Arrest has not come out of its colonial image despite six decades of independence, it is largely considered a tool of harassment, oppression and surely not considered a friend of the public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts but has not yielded the desired result.

“Power to arrest greatly contributes to its arrogance so also the failure of the (Magistrate’s Court) to check it. Not only this, but the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool for police officers who lack sensitivity or act with an oblique motive.

“This Court in a large number of judgments emphasised the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrests as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently.

“We believe that no arrest should be made only because the offence is non-bailable and (seizable) and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another.

“Apart from the power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of the commission of an offence made against a person.

“It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of an allegation.”

Despite proposals for reforms by the Indian Law Commission in the 1990s, it was not until 2001 that the Indian Parliament took steps to reform the law on arrest in India when Section 41 of the Indian Criminal Procedure Code (CPC) in its present form came to be enacted.

‘Why arrest?’

Section 41 in its pre-amended form can be seen in Section 23 of the Malaysian CPC.

Section 41(1)(b)(ii) makes it a condition that arrest without warrant may be made if “the police officer is satisfied that such arrest is necessary – to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or as unless such person is arrested, his presence in the court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing, provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”

From a plain reading of the provision, it is evident that a person cannot be arrested by a police officer only on the officer’s satisfaction that such a person had allegedly committed an offence which allows for arrest without warrant. In India, such an offence is called a cognizable offence.

A police officer, before making an arrest in such cases, has to be further satisfied that such an arrest is necessary, which the police officer may reach based on facts.

In the pith and core, the police officer, before making an arrest, must ask himself:

“Why arrest? Is it really required? What purpose will it serve? What object will it achieve?”

It is only after the above questions are addressed and one or the other conditions as enumerated in the provision is satisfied, that the power of arrest needs to be exercised.

In other words, the police officer has to be satisfied that the arrest is necessary for one or the more purposes envisaged by the provision.

Follow India’s footsteps

An arrest affects the liberty and freedom of citizens and needs to be exercised with great care and caution.

Accordingly, the law was further refined in 2008 with the enactment of Section 41A, which mandates a police officer to issue a notice directing the person alleged to have committed a cognizable offence to appear before him or at such other place as may be specified in the notice, where the arrest of the person is not required under Section 41.

Section 41A was enacted with the aim of avoiding unnecessary arrest or threat of arrest on person or a person alleged to have committed a cognizable offence.

When personal liberty is at stake, arrest should not be made merely because it is lawful.

Isn’t it time for Malaysia to follow in the footsteps of India and reform the law on arrest?

So, instead of mere condemnations, we should call for reforms to the law on arrest as has been done in India from where we took our CPC.

We need to be constructive and move away from mere condemnations.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.