KUALA LUMPUR – Eyebrows were raised when Fahmi Abd Moin, the new lawyer for the parents of murdered autistic child Zayn Rayyan Abdul Matiin, said he only met his clients for the first time at a court proceeding to extend their remand order yesterday.
Fahmi had confirmed to Scoop that several attempts to see Zaim Ikhwan Zahari and Ismanira Abdul Manaf, while they were under their first remand order, had been met with stony silence from police who did not respond to the lawyer’s letters.
While Section 28A(2)(b) of the Criminal Procedure Code states that an arrested person is entitled to communicate with and consult their legal representative before they are questioned, in practice, this has been taken to mean that one must “ask” to see their lawyers, and not have the right offered to them.
This, said lawyer Ravi Chandran Subash Chandran, is a technical loophole in allowing the exercise of an arrestee’s rights so that police can confirm the “lawyer” is a genuine representative of the detained person.
It is thus imperative for individuals to understand the scope of their rights to ensure that they are not denied access to legal representation, or to communicate with a friend or relative in the case of arrest, he said.
This is especially important when one is arrested or remanded by police, as an arrestee’s right to counsel would hinder the authorities from recording or interrogating them without the presence of a lawyer, he added.
“Police cannot even take a statement if the arrestee had asked to consult their lawyer. Instead, the authorities must postpone recording statements and make arrangements to ensure the said lawyer’s presence.
“It is to ensure that only legal practitioners speak to the arrestees, and not some ‘lawyer impersonator’. This process is especially strict when it involves high profile cases.
“Which is why it is important for an arrestee to know that they have got themselves a lawyer,” said Ravi Chandran, who is co-chair of the Bar Council’s criminal law committee.
In the case of Zayn Rayyan’s parents – who were arrested on May 31 – they did not know that their lawyer had changed, as their family members were not allowed to meet or call them in police custody to inform them of Fahmi’s appointment, after the previous lawyer discharged himself from representing the couple on June 4.
Fahmi told Scoop he had to apply to magistrate Ainaa Mohd Kamal for access to the parents. Following this, the magistrate ordered Selangor police to respond to his letters requesting access to his clients, and to state reasons for denying the lawyer earlier access.
Ravi Chandran said there are exceptions for police to not grant a lawyer access to his client.
“Under Section 28A(8) of the Criminal Procedure Code, if police feel that allowing anyone talking to arrestee, including the lawyer, may interfere with the investigation, or perhaps cause the evidence to go missing, or that they are an accomplice, then a deputy superintendent of police or higher-ranked officer can refuse an arrestee access to legal representation.
“But police must record their basis for refusal in black and white,” he said.
If family members appoint a lawyer for the arrestee, they must go to the police station with the said lawyer and have the arrestee identify the family members, before consultation with the lawyer can proceed.
If a new lawyer is appointed while the arrestee is in remand, the case investigating officer should confirm with the arrestee on the new appointment, he added.
The same rights on access to counsel when one is arrested are also stipulated under Article 5(3) of the Federal Constitution, which says that a person shall be allowed to consult and be defended by a legal practitioner of his choice.
Those denied these rights while in police custody can file a civil suit against the police force for violating their rights to counsel, Ravi Chandran added.
Zayn Rayyan’s parents, Zaim and Ismanira, were initially remanded for seven days from June 1. Yesterday, the magistrates’ court allowed police to extend their remand for another six days.
Scoop recently reported on concerns in legal circles regarding the treatment of individuals detained in police custody, including on the denial of access to legal counsel or calls to family members. These concerns were exposed in recent legal battles over unlawful arrests and detentions.
Zayn Rayyan’s body was found in a creek about 200m from his family’s home at the Idaman Apartments, Damansara Damai, on December 6 last year.
Despite widespread checks on other apartment residents and DNA testing, police had not been able to arrest anyone, until his parents were taken into custody on May 31. – June 8, 2024