M Visvanathan said the landmark judgment also emphasised that magistrates were the first line of defence in checking human rights violations.
“They cannot be mechanical in their duty. Instead, they must enquire of the investigating officer when remand orders are applied for or an extension is sought,” he told FMT.
The lawyer was responding to the apex court cautioning magistrates to act judiciously in exercising their discretion when giving remand orders to the police to detain suspects for investigation.
The Federal Court also ruled that victims of assault, false imprisonment or death in custody need no longer set aside the validity of a remand order before filing a civil claim against the government.
“This legal pronouncement has shifted the burden of proof from the litigants to the police that they did not abuse the remand process,” Visvanathan said.
Visvanathan, who has appeared for victims of family members who had died in police custody, said magistrates were expected to know the history of the case from the investigating officer.
“They must study the investigation diary of the police officer to see the progress made in the investigations,” he said.
A suspect is produced before a judicial officer within 24 hours to get a remand if investigations cannot be completed.
Currently, the court only grants a maximum seven-day remand, and an additional seven-day extension, to allow police to complete their investigations into serious crimes.
Visvanathan said magistrates were also expected to look into the physical and medical conditions of suspects when they were produced before them.
“They should interview the suspect or inquire of a legal counsel to ensure no physical abuse was inflicted by police or others on the suspect.”
He added that magistrates should not hesitate to order the police to send sick suspects to hospital if warranted by the situation, and ensure medication is provided to those suffering from serious ailments.
Visvanathan said it was also the duty of the magistrate to ask an unrepresented suspect if he or she required legal counsel during the remand proceeding.
The Federal Court had said a magistrate must balance fairly the personal liberty of an individual who had not been proven guilty of an offence against the duty of the police to investigate a crime.
Justice Balia Yusof Wahi, who delivered the 71-page majority judgment, said: “It involves an exercise of discretion and that must be exercised judicially and is subject to the court’s scrutiny.”
He said this in dismissing the government’s appeal against the Court of Appeal’s decision to award damages to carpenter Mohd Hady Yaakop for false imprisonment in 2008.
Balia said the issuance of two court practice directions in 2003 and 2011 reemphasised the requirement for strict compliance with Sections 117 and 119 of the Criminal Procedure Code by the police and magistrates.
Balia said the court could not dictate how police carried out their investigations but neither could it wear blinkers and remain oblivious to the horror stories and allegations of police brutality and custodial assault.
Despite this landmark ruling, Visvanathan said the Pakatan Harapan government must push to form the Independent Police Complaints and Misconduct Commission (IPCMC) to deal with public grievances against the law enforcement agency.
He said an oversight mechanism like the IPCMC would raise the standard of policing and act as an effective check and balance.
“The number of civil suits against the police should drop as every ringgit in damages now awarded to victims or their families comes from taxpayers’ contributions,” he said.
In Hady’s case, the carpenter was awarded RM50,000 for false imprisonment and another RM100,000 in exemplary damages by the Federal Court.
He was also awarded another RM30,000 in costs.
Hady, represented by J Amardas, had earlier in the High Court won RM160,000 in damages for assault but the government did not appeal that ruling.
Apex court to magistrates: Be judicious in granting remand orders
Lawyer: Set up oversight commission now to check police abuse