The judiciary has failed to translate their contempt against police abuse in action when meting out inadequate sentence for their abusive actions against detainees, said a lawyer.

Edmund Bon in his paper entitle the "Cop-Land" states that the court has failed to adequately consider the victim's pain and suffering and the particular circumstances surrounding the incident which led to detainees being subjected to abusive treatment by the police.

"The judiciary which endorses the oft-said and commonsensical approach that the police cannot be allowed to beat people, had failed to translate that into action and offer a more exacting punishment than was meted out.

"Here the rights of a human being lost out to state abuse and the judiciary failed to sufficiently check it. The state police trumped," he said at the Bar Council's seminar o­n "Police Powers and Rights of Detainees" in Kuala Lumpur yesterday.

Rahim Noor case

As an example, Bon cited the case of former Inspector General of Police Rahim Noor who was o­nly jailed two months and fined RM2,000 for assaulting jailed ex-deputy premier Anwar Ibrahim in the Bukit Aman lock-up in 1998.

Describing the sentence as " utterly inadequate", he said the court had given too much emphasis to Rahim's good record and service to the nation as a mitigating factors.

He said Rahim's post as the "top watchdog" should have aggravated Rahim's sentence.

"If the nation's top policeman could get away with just two months for a merciless attack o­n a defenceless victim, blindfolded and handcuffed, what less a senior policeman."

"Needless to say the more senior you are, the more is expected and more o­nerous duties to be discharged. The higher you are, the greater the fall," he said.

Bon also said the reason why a magistrate's remand order is often criticised was because they had failed to properly weigh the situation and the law but instead relied totally o­n the information provided by the police.

He said magistrates should realise that their duties are as important as appeal judges as they are the first contact the detainee has with the judiciary - the custodian of law and individual rights.

"However, magistrates merely rubber stamp and pencil-push the remand applications by the police as if it was an administrative desk job," he complained.

Procedures not followed

Agreeing with Bon was another speaker, lawyer Jerald Gomez who said that these "rubber stamp magistrates" are usually junior judicial officers with hardly any experience and limited knowledge of the big picture.

He cited many instances where magistrates failed to follow the proper remand procedures which has been carefully laid-out in legal precedents to ensure that detainee rights are not violated.

Magistrates who breached the law would be quick "to claim immunity for all their actions and orders as provided by the law".

"This cavalier attitude compounded by immunities, perpetuates the problem. Therein lies o­ne of the main reason why the abuse and injustice continues.," he said.

He also pointed out the abuse action by police is wilfully detaining suspects for a long period in what he called "chain-smoking remand orders" where the arrested person is taken to a magistrate for 14 days and then to a different magistrate for another 14 days and it continues like that.

He said he is privy to several instances where this had happened and has since conducted a case where a habeas corpus application was filed by a group of suspects who were detained over 100 days.

"As soon as the date was fixed for the hearing of the habeas corpus application, the arrested persons were released o­n bail and two of them charged," he said.

He said it is these type of abuses that mock the safeguard provided by the law and the Federal Constitution.

Issues to guide magistrates

Meawhile, sessions judge Akhtar Tahir said lawyers must play a more competent role in ensuring that their clients' rights are not violated.

He said lawyers tend to harp o­n irrelevant factors in remand proceeding which did not help the magistrate in making a favourable decision for the suspect.

"In remand proceeding, innocence of the suspect is not relevant. The lawyer should instead concentrate to issues that could guide the magistrate in granting bail to their clients," he said.

He said the lawyers should not question the arrest as the evidence and investigations cannot be made privy to them.

"Many of the lawyers are not well prepared and come without making proper research to support their arguments. To defend your clients' liberty you must prepare yourself," he said.

As to the magistrate's failure to live up to their obligations, Akhtar called upon the lawyers to lodge a complaint to the relevant High Court judge o­n any incompetent magistrates.

He said the judiciary is always open to discuss difficulties faced by lawyers and their clients and welcomes any improvement to the system.

Structural weakness

However, senior lawyer M. Puravelan said that a person's liberty should not depend o­n the good will of the magistrates or judges involved.

"This shows the structural weakness in our judicial system. This is not how it should function. We want a system that allows us to see our client within 24 hours of their arrest, to be made privy to relevant information to help defend our client," he said.

As to the "chain-smoking remand orders" complaint, another speaker magistrate Rosli Ahmad said that magistrates have no choice but to allow remand request for the same accused who has several police reports against him.

"I believe such incident do happen but not very often. Sometimes when a remand period expires, the police would inform that the suspect has another case against him in another district where another remand order would be sought. We have to give but may consider the length of detention."

In such instances, he has advised lawyers to bring the issue up to the High Court so that a decision would be made that can be used as guidance to the lower court.