No federal law can take away basic rights of citizens, court told

Shaharudin Ali says former intelligence head Hasanah Ab Hamid should have been allowed to see her lawyer or family while under MACC custody.

KUALA LUMPUR: Parliament cannot pass laws to take away fundamental rights guaranteed to citizens in the Federal Constitution, the Court of Appeal heard today.

Lawyer Shaharudin Ali said such an act would be seen as done in bad faith and against the constitution, which is the supreme law of the land.

“No statute (federal law) can attack the constitution as it will be seen as mala fide (done in bad faith) and unconstitutional,” Shaharudin said in his submission of an appeal by former intelligence head Hasanah Ab Hamid before a bench of three judges led by Hamid Sultan Abu Backer.

He said Parliament could amend Section 28 (8) (9) of the Criminal Procedure Code (CPC) but for now, those provisions are against Article 5 (3).

Shaharudin said both provisions in the CPC went against Article 5 (3) of the constitution, which stated that a suspect must be told the reason for his arrest and he has the right to consult a lawyer of his choice.

However, both provisions in the CPC, which was amended in 2007, state that the constitutional right of a suspect could be suspended by a senior police officer should there  be an interference in investigations.

Shaharudin said a 1975 apex court ruling relied by High Court judge Nordin Hassan was no longer applicable due to changing times and circumstances and the fact that the CPC was amended 12 years ago.

He said Section 28A of the CPC also gave a comprehensive right to an arrested person to consult his lawyer and also to meet his family members.

“In our case, the appellant was not allowed to meet her lawyer or family members when she was under the custody of the Malaysian Anti-Corruption Commission (MACC) over alleged misuse of government funds,” he said.

Hasanah, former head of the Malaysian External Intelligence Organisation (MEIO), is appealing against a High Court ruling last year which held that provisions in the CPC did not take away her constitutional rights.

Nordin also ruled that the CPC provisions did not discriminate any person who was under the arrest of law enforcement agencies.

“Sections 28 (8) and 28 (9) of the CPC do not remove any detainee’s right to legal representation. They merely suspend it temporarily,” Nordin had said.

Hasanah was remanded in August as part of MACC’s investigation into the alleged misappropriation of RM50 million (US$12.1 million) in government funds.

She filed the lawsuit, claiming Sections 28 (8) and 28 (9) of the CPC were against Articles 5 (3) and 8 of the Federal Constitution on the right to legal representation and equality.

She has been charged in the Sessions Court with criminal breach of trust related to the RM50 million and has been released on bail of RM500,000 but told to surrender her diplomatic passport to the court.

Hasanah entered the spotlight after the May 9 general election when a letter written to Central Intelligence Agency (CIA) director Gina Haspel asking for Washington’s support for Barisan Nasional was leaked to the public.

The letter was investigated by the police, but then IGP Mohamad Fuzi Harun did not reveal details of the probe.

Hasanah retired from public service after Pakatan Harapan took over the federal government.

Deputy public prosecutor Mohd Dusuki Mokhtar will make his submission on Oct 3.