It was widely reported that despite the massive operation by the police in raiding a health club alleged to have been involved in same-sex activities, 171 suspects were released as the police failed to obtain a remand order.
A remand order is legally necessary if police fail to complete their investigation within 24 hours of a suspect’s detention. This is a constitutional protection.
In the present case, police needed to obtain a remand order from a magistrate to complete their investigation under Sections 377 and 372 of the Penal Code.
Home Minister Saifuddin Nasution Ismail, however, believed the failure by the police to obtain the remand order in this case was a legal constraint, leaving the police with no option but to release those detained.
He therefore said there was a need to look at the existing laws, especially involving the time constraints for the police to complete the investigation paper (IP).
Is he implying the law on remand badly needs to follow the Security Offences (Special Measures) Act 2012 (Sosma) model, in which the police may detain a suspect for 28 days without any court order?
Sosma endorses procedures that flagrantly violate the Federal Constitution. After all, Sosma is a police and prosecution-friendly legislation.
Constitutional safeguard
Anyway, Saifuddin’s idea of the need to review the existing law on remand really irked DAP’s Bukit Gelugor MP, Ramkarpal Singh, who is also a lawyer.
The latter aptly reminded the home minister that the remand order serves as a rock-hard bulwark against possible abuses of process by the police and safeguards the right to life and liberty duly embedded in Article 5 of the Federal Constitution.
Without any judicial remand order, who would be able to be a watchdog of the police?
In Malaysia, constitutional supremacy is the bedrock of our legal system, and I fully subscribe to Ramkarpal’s view.
The police’s failure to secure a remand order under Section 117 of the Criminal Procedure Code (CPC) is not a licence for the government to review the existing law dealing with remand.
To begin with, the law relating to remand, which is currently housed in the CPC, is just fine. It is also unclear and absolutely puzzling why the police miserably failed to resort to Section 323 of the CPC in asking the court to review the decision of the magistrate, who declined to issue the remand order.
Criminal lawyers frequently capitalise on this section to urge the High Court to invoke its revisionary power.
One may reasonably ask Saifuddin if the failure to obtain the remand order was due to the legal constraints of the existing law or other possible reasons, such as utter police inefficiency or incompetency?
To be fair, police inefficiency may be caused by a slew of reasons, such as a lack of resources like manpower and modern equipment. Poor management, such as resource misallocation, should not be ruled out.
Other contributing factors include low accountability, a decline in crime clearance rates, and tenacious obstacles like workload imbalance, inefficient government procedures, and archaic bureaucratic red tape.
In short, multiple reasons may cause such perennial inefficiency. To conclude, there is nothing wrong with the law on remand. It is hoped that Saifuddin is not barking up the wrong tree. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister of law.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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