Sorry Minister Police Were Wrong

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One of the universal principles of law is embedded in the following legal maxim, namely ignorantia juris non excusat (Latin for “ignorance of the law excuses not”) or ignorantia legis neminem excusat (ignorance of law excuses no one).
By virtue of this trite legal principle, any person - including the police - who is unaware of provisions of law may not be absolved from liability for violating laws merely by being unaware of its content.
The recent incident involving Suaram executive director Sevan Doraisamy seems to portray beyond any shadow of doubt that the Home Ministry, with the greatest respect, was plainly in error for defending the alleged misfeasance in public office allegedly committed by the police.
As expected, there are always two versions of the story. The police version is rather simple, a complete denial by the Home Ministry that there was any arrest being made against Suaram and Sevan - who handed over a memorandum at the ministry on Monday - hence, backing the police’s version of events.
The police claimed that they only wanted to serve Sevan and Suaram programme manager Azura Nazron with a notice under Section 111 of the Criminal Procedure Code (CPC) to summon them for questioning.
Suaram executive director Sevan DoraisamySevan, on the contrary, categorically claimed the police had briefly arrested him. Sevan and Azura had previously accompanied family members of 32 detainees who wanted to meet Home Ministry representatives; ostensibly without a pass. The detainees are being held under the Security Offences (Special Measures) Act 2012 (Sosma).
This is the 21st century
The police version might have been easily accepted without a murmur if such an incident took place in an era bereft of social media. For heaven's sake, we all live in the 21st Century.
To the detriment of the Home Ministry, the incident was duly captured by a video clip which was subsequently aired live by Suaram on social media. The whole world was watching it.
The video appeared to fortify Sevan’s version of events, where a plainclothes officer is heard answering in the affirmative when Sevan asked if he was being arrested.
Plainclothes police officers outside the Suaram office yesterday, with Sevan Doraisamy clad in redFor the sake of argument, let us assume the police were right in asserting that they only wanted to serve Sevan and Azura with a notice under Section 111 of the CPC to summon them for questioning.
Yes, the law allows police to serve any potential witnesses with a notice under Section 111 of the CPC to summon them for questioning. But can the police also be given any power to arrest such witnesses?
The police can only effect the arrest if they have an order from a magistrate to do the same.
Under the CPC, once the police manage to serve the 111 notice on the potential witnesses, they may in turn ask the court to compel the attendance of such witnesses for the purpose of recording their statements under Section 112 of the CPC.
Puzzling police behaviour
In the present case, the police seem to defy the said procedural justice. What the police should have done on that particular date was merely serve the 111 notice on Sevan. Period.
It is rather puzzling for the police not to allow a polite request made by Sevan’s lawyer for his client’s statement to be recorded on the following day.
The police and Home Ministry seemed to be oblivious that such a blatant refusal may be construed as a form of police intimidation, and that only tarnishes the image of our police force.
Assuming Sevan refuses to comply with such a notice thereafter the police have the legal remedy. It may go to the magistrate court and ask for a warrant of arrest to be issued against Sevan.
Without such a warrant, the police had no right to arrest Sevan. Under the present law in Malaysia, our courts have clearly held there are two types of arrest, namely actual arrest and constructive arrest.
Though Section 15 of the CPC seems to envisage the actual arrest, namely there must be physical contact ie by touching the body of the arrestee, a constructive arrest may also occur when a person’s movement is no longer free and unduly curtailed or restricted by the police action.
Sevan was clearly under arrest on that particular day. When he asked if he was being arrested and the police answered in the affirmative, that clearly constituted an arrest, ie a constructive arrest.
Since there was an arrest Sevan must be constitutionally informed of the reason for his arrest. And such an arrest, in my view, was plainly illegal and unlawful and the police may be potentially sued under the tort of misfeasance in public office. - Mkini
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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