Former director-general of Malaysia External Intelligence Organisation (MEIO) Hasanah Abdul Hamid's constitutional right to legal representation was violated when she was held under remand, the Court of Appeal heard today.
Her counsel Shaharudin Ali said Section 28A (8) and (9) of the Criminal Procedure Code (CPC) has diluted the civil liberties protection accorded to an arrested person under Article 5(3) of the Federal Constitution.
“The section gives unlimited power to the police or the Malaysian Anti-Corruption Commission (MACC) to totally deny the right to consult a lawyer as accorded by Article 5 (3),” he said at the hearing of an appeal against the High Court's dismissal of Hasanah's lawsuit.
Hasanah sued MACC and the government for not letting her consult her lawyer when she was remanded for six days in August last year to assist the investigation into allegations of abuse of power and misappropriation of government funds for the 14th general election.
Shaharudin submitted that there was a total denial of access to counsel throughout the entire duration of Hasanah's detention, adding that Section 28A (8) and (9) had been abused in his client's case.
He said the Parliament could amend Section 28 (8) and (9) but for now that provisions were against Article 5 (3).
Section 28 (8) and (9) states that the constitutional right of a suspect could be suspended by a senior police officer should there be an interference in investigations.
Court of Appeal Judge Hamid Sultan Abu Backer who chaired the three-member bench said legislation cannot be used to attack the Federal Constitution which is the supreme law of the land, adding that it would be seen as mala fide (done in bad faith).
In her originating summons, Hasanah (above) sought a declaration that the notification letter issued by the MACC under Section 28A (8) and (9) of the CPC prohibiting her from consulting her lawyer while being held under remand contravened Articles 5(3) and 8 of the Federal Constitution.
She claimed that Section 28A is unlawful, null and void, and cannot be enforced against her.
In Oct last year, High Court Judge Nordin Hassan said that Section 28A (8) and (9) of the CPC were not discriminatory in nature as it did not deny the right to counsel, but it was rather to suspend of those rights during the remand period.
Justice Hamid who presided with Hanipah Farikullah and Kamaludin Md Said adjourned the matter to Oct 3 to hear submission by deputy public prosecutor Mohd Dusuki Mokhtar appearing for the government and MACC after he (Mohd Dusuki) requested for time to do further research on the issue.