The High Court in Kuala Lumpur today declared Section 28A(8) and (9) of the Criminal Procedure Code to be legally valid, and that both sub-sections do not violate former Malaysian External Intelligence Organisation (MEIO) director-general Hasanah Abdul Hamid’s right to a lawyer while in remand.

Section 28A(8) and (9) of the CPC give the investigating authority the power to deny the accused the right to consult a lawyer.

Hasanah was arrested by MACC on Aug 28 in relation to an investigation into the disappearance of millions of ringgit intended to be used for the 14th general election, and slapped with a five-day remand the following day.

She then sued the agency on Aug 30 for invoking section 28A (8) and (9) in a notice it issued, which allegedly barred her from exercising her right to consult a lawyer while she was remanded.

Justice Nordin Hassan said the right to a counsel for an accused person ceases when the person is arrested.

"A balance has to arise after the arrest, " the judge said.

Citing a Federal Court case, Justice Nordin said the right to a lawyer can be exercised during an arrest, but not immediately after the person is arrested.

He said that this court is bound by the principle of stare decisis (to stand by things that have been decided) with regard to the Federal Court case.

"I find in the present case the two sections do not violate the constitution and are valid laws, and do not infringe on the rights of an arrested person, " he added.

Justice Nordin made no order as to costs.

Hasanah had sought to challenge the constitutionality of both sub-sections, claiming that they went against Article 5(3) and Article 8 of the Federal Constitution.

Article 5(3) stipulates that arrested individuals must be informed as soon as possible on the grounds of arrest, and must be allowed to consult and be defended by legal practitioners of their choice, while Article 8 concerns equality.

The lawyers representing Hasanah today were Shaharudin Ali and Mohd Khairul Azam Abdul Aziz, while the MACC was represented by deputy public prosecutor Norzilati Izhani Zainal @ Zainol.

Appeal to be filed

Shaharudin told reporters that they will file an appeal.

"I will take up the challenge made by the Chief Justice (Richard Malanjum) that there should be dissenting judgment on matters concerning human rights.

"Our contention is that during the six-day remand, our client was denied legal representation when her statement was recorded. This (recording) would be used against you and I will bring it up also during the trial," he said.

Yesterday, it was reported Justice Malanjum had in a speech challenged judges to be independent in their judgments and said it was alright for them to dissent, as sometimes dissent in a judgment can become law.

Khairul Azam, meanwhile, told reporters that the case had larger implications for the rights of the Malaysian public.

He said this was a case of public interest as it addressed the rights of an arrested person to a counsel.

Hasanah was charged yesterday with criminal breach of trust in her capacity as former MEIO director-general, involving a sum of US$12.1 million belonging to the government.