RIGHTS OF THE ACCUSED BEFORE TRIAL - THE MALAYSIAN EXPERIENCE (FROM UNFEI - REPORT FOR 1977 AND RESOURCE MATERIAL SERIES NO 15, 1978 - SEE NCJ-58438)

• NCJ Number: 58445
• Author(s): A B ALIAS
• Date Published: 1978
• Length: 4 pages
• Corporate Author: United Nations Asia and Far East Institute for the Prevention of Crime and Treatment of Offenders
• Publication Format: Document
• Language: English
• Country: Japan

Annotation

EXAMINATION OF THE RIGHTS OF THE ACCUSED DURING PRE-TRIAL PROCEEDINGS IN MALAYSIA INDICATES PROBLEMS WHICH HAVE ARISEN AND SUGGESTS POSSIBLE REMEDIES. THE PAPER STUDIES FOUR BASIC RIGHTS.

Abstract

IT IS RECOGNIZED THAT PRE-TRIAL PROCEEDINGS PLAY AN IMPORTANT ROLE IN DETERMINING THE OUTCOME OF CRIMINAL PROCEEDINGS. THEREFORE, RIGHTS OF THE ACCUSED DURING THESE PROCEEDINGS HAVE DIRECT BEARING UPON THEIR INTERESTS. IN GENERAL, THE FOUR BASIC RIGHTS ARE RIGHTS UPON ARREST, RIGHT TO COUNSEL DURING INTERROGATION, RIGHT OF SILENCE, AND RIGHT TO COUNSEL AT IDENTIFICATION PARADES. MALAYSIAN CRIMINAL PROCEDURE ALLOWS POLICE TO ARREST SUSPECTS WITHOUT A WARRANT IF AT THE TIME OF THE ARREST THERE IS A REASONABLE SUSPICION THAT THE SUSPECT HAS COMMITTED AN OFFENSE. HOWEVER, THE CONSTITUTION STATES THAT A PERSON CANNOT BE DETAINED FOR MORE THAN 24 HOURS WITHOUT APPEARING BEFORE A MAGISTRATE. THE MAGISTRATE MUST RECORD THE REASONS FOR APPROVING ANY EXTENDED DETENTION. ALTHOUGH THE CONSTITUTION FURTHER ESTABLISHES THAT THE ACCUSED SHOULD BE INFORMED OF CHARGES AGAINST THEM, THIS PROVISION IS INEFFECTIVE BECAUSE MOST ACCUSED ARE NOT REPRESENTED BY COUNSEL. THE CONSTITUTION DOES PROVIDE THE ACCUSED THE RIGHT TO COUNSEL AND DEFENSE, BUT HOW AND WHEN THIS RIGHT CAN BE EXERCISED IS NOT DEFINED. THE MALAYSIAN COURTS HAVE DETERMINED HOW THESE RIGHTS ARE TO BE APPLIED ON A CASE BY CASE BASIS. WITH REGARD TO THE ACCUSED'S RIGHT TO SILENCE, THE PROSECUTION MUST PROVE THAT THE ACCUSED WAS INFORMED OF THE RIGHT TO REMAIN SILENT AND THAT ANY STATEMENTS DID NOT RESULT FROM THREAT, INDUCEMENT, OR PROMISE. THIS RIGHT IS SEVERLY LIMITED BY THE FACT THAT PRE-TRIAL INTERROGATIONS USUALLY TAKE PLACE WITHOUT THE PRESENCE OF COUNSEL OR FRIENDS OF THE ACCUSED. THE ACCUSED COULD SIGN ALL OBTAINED STATEMENTS AS EVIDENCE THAT THEY WERE NOT OBTAINED UNDER DURESS. IN ADDITION, A RULE REQUIRING THAT THE ACCUSED BE GIVEN THE RIGHT TO COUNSEL AT IDENTIFICATION PARADES SHOULD BE ESTABLISHED. NO REFERENCES ARE PROVIDED. (KCP)