MCO 3.0: Detainees’ access to lawyers hindered, say legal practitioners

Several lawyers have lamented detainees' difficulties to get proper legal representation during the latest movement control order (MCO 3.0).

Veteran legal practitioner Suraj Singh (above) told Malaysiakini that this was due to law firms throughout the country being ordered to close beginning today for the two-week MCO 3.0 period.

He pointed out that this is because lawyers face difficulty in making legal preparation for clients, currently under detention, who wish to challenge the court’s decision to deny them bail, after being charged in court.

“Miti (International Trade and Industry Ministry) should consider classifying criminal lawyers as part of essential service because people are still being arrested even now and they need legal representation.

“Lawyers are frontliners and essential to helping people achieve justice through the legal system in this country. This is because the police force is still operational, and the courts are still operating to handle criminal proceedings.

“The Federal Constitution is very clear that everyone needs to have legal representation and the right to engage counsel.

“Criminal law practitioners should be allowed to open their offices, as they need to access case files to prepare submissions for legal applications related to bail and remand. These things could not be done if the office is closed,” Suraj said.

The lawyer reminded that the importance of allowing law firms to be operational during the MCO 3.0 is particularly so when it involves the legal representation of a person whose liberty is at stake.

Suraj then referred to a similar travail faced by single mother B Lisa Christina last year during the first MCO, whereby proper legal representation helped her quash an initial 30-day jail sentence for violating the MCO and substitute it with an RM1,000 fine.

The lawyer said allowing law firm offices to operate during the current MCO 3.0 would help those facing similar travails now to access proper legal representation to achieve justice.

Lisa Christina, who is a marketing executive, was sentenced to 30 days’ jail by the Petaling Jaya Magistrate’s Court on April 21 last year, after pleading guilty to a charge with gathering in an infected area with three others at a staircase area near a playground at SM1, Taman Subang Mas, Subang Jaya, at about 4.45 pm last April 12.

However, she then filed a legal challenge against the sentence which she contended was excessively harsh and succeeded in getting the Shah Alam High Court to quash the sentence and substitute it with the RM1,000 fine on April 29 last year.

“Lawyers need to preserve and protect the interest of justice of the rights of detainees when they are arrested (for alleged criminal offences).

“This is especially so with the current issue of deaths in custody cases involving detainees,” Suraj said.

The Bar Council, through a circular to its members and chambering students, yesterday questioned the absence of law firms under the government’s list of essential services during the MCO 3.0 period.

The circular raised issues such as accessibility to law firm premises and files, compliance with procedural deadlines and directions, among other concerns.

Another lawyer, Chan Yen Hui, told Malaysiakini that lawyers’ access to law firms is particularly important in situations when a client is challenging a court’s decision to deny him bail, and his initially scheduled criminal trial was postponed due to MCO 3.0.

“There is the issue of those detained in prison, but their criminal trial could not go on, and they were not allowed bail, then they would be stranded there (in remand), they would be most affected,” she said.

“Lawyers who are preparing criminal applications to seek bail or reduce bail need access to files and documents in the law firms’ office,” she said.

Chan added that the rights of detainees to legal representation during the total lockdown period is also hindered when it involves their lawyers being from another district or state.

She said this is because the government has imposed a requirement that lawyers wishing to come to court need to first apply from the nearby police station for permission to do so.

She noted that this posed additional hurdles for lawyers to overcome to help represent client-detainees, who are set to be charged or subjected to remand hearings in a court that is in another district or state, from where the lawyer operates.

“It is impossible for the lawyers to go to the police station to apply for the permit one night before because fresh charges and remand are registered (by the courts) in the morning,” she said.

The lawyer is referring to a statement issued by the Prime Minister’s Department’s (PMD) division in charge of legal affairs, which stated that lawyers are allowed to attend physical court proceedings involving fresh charges, remand hearings, and various criminal case applications.

It stated that the lawyers need to first get permission from nearby police stations to attend these types of court proceedings.

Previously, it was reported that all open-court trials, whether criminal or civil action cases, would be postponed during the present total lockdown period beginning today. It was also reported that legal services are not designated as essential services and generally not allowed to operate during the two-week MCO 3.0 period.

Today’s statement by the PMD granted an exemption to lawyers needing to attend open-court proceedings involving remand hearings, fresh charges, and criminal applications. However, it did not state that law firms that specialise in criminal cases could stay open during the MCO 3.0 period.

The same statement also stated that law firms that are involved in corporate and conveyancing services for sectors that are designated essential services, could apply directly to Miti to be allowed to stay open during the total lockdown period.

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