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The Bar Council views with great concern the arrest and detention of Mr P Uthayakumar, an Advocate and Solicitor, and the subsequent charge against him pursuant to section 228 of the Penal Code.

Manner of arrest and conduct of police

The high-handed treatment of Mr Uthayakumar by the police is to be severely criticised. Mr Uthayakumar was arrested on 16 January 2003 for an alleged offence that occurred on 3 September 2002. The Bar Council is of the view that to arrest him at the doorsteps of the Sepang Magistrate Court, by an unnecessarily large team of some 20 police officers was completely unwarranted. There was no necessity for the arrest to take place in the full glare of the public and in full view of his clients, with journalists and press photographers present at the scene, if the intention was only to require Mr Uthayakumar to go to the police station for the purposes of investigation. The press personnel were not there to report the inquest in which Mr Uthayakumar was representing the family of the deceased detainee, but to specifically report the arrest itself. If the police wanted him to present himself at the police station for the purposes of investigation, all that was needed was to contact him and ask him to be present. The Bar Council notes that the police are themselves the complainant in the case leading to Mr Uthayakumar’s arrest, and views the arrest as a serious abuse of police powers given the calculated timing and publicity involved.

The Federal Constitution requires that a person arrested be informed of the grounds of his arrest and be allowed to consult and be defended by a legal practitioner of his choice, but Mr Uthayakumar was deprived of both rights. The Bar Council notes with concern that although lawyers went on record to represent Mr Uthayakumar, they were denied access to their client.

In view of the above, the Bar Council calls upon the Inspector-General of Police to investigate the matter and take appropriate measures to discipline the police officers concerned and to ensure that suspects who are not yet charged with a criminal offence are treated properly in accordance with established criminal procedure, the Lock-Up Rules and allowed to exercise their constitutional rights.

Decision to charge

The Bar Council also strongly opposes the decision to charge Mr Uthayakumar under section 228 of the Penal Code. Since lawyers are themselves officers of the court and are bound by certain rules of professional conduct, they may be disciplined by the Legal Profession Disciplinary Board and/or may be punished for contempt of court in certain cases.

On the other hand, charging a lawyer for intentionally insulting or causing interruption to 'any public servant, while such public servant is sitting in any stage of a judicial proceeding' has destructive implications for all lawyers. A lawyer who makes statements on behalf of his client in the course of judicial proceedings must be free from fear of criminal prosecution in order to enable him to discharge his duty as an Advocate and Solicitor to the best of his ability, and to uphold the cause of justice without fear or favour. If Mr Uthayakumar’s conduct in court amounted to a contempt of the court, it would have been open to the Magistrate to cite him for contempt.

In view of the wide and serious ramifications of criminal prosecution on all Malaysian lawyers, the Bar Council calls for the charge against Mr Uthayakumar to be withdrawn immediately.

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