The Bar Council will submit a memorandum to Chief Justice Ahmad Fairuz Sheikh Abdul Halim seeking improvement o­n the court's practice direction o­n the conduct and responsibilities of magistrates in remand proceeding.

Its chairman Kuthubul Zaman Bukhari said the practice direction needed to be "modified" to ensure that all detainees are given automatic right to be legally represented by a lawyer in a remand proceeding.

He said this in his speech when opening the council's seminar o­n "Police Powers and Rights of Detainees" at the council's auditorium at Leboh Pasar Besar, Kuala Lumpur today.

The o­ne-day seminar saw a group of speakers both from the council and the judiciary including High Court judge Zulkefli Ahmad Makinuddin and sessions judge Akhtar Tahir who talked about the problems faced by them in remand proceedings and bail applications.

Met later, Kuthubul said the memorandum would be ready for submission within a few weeks. He also hoped that the outcome of today's seminar would be incorporated in the memorandum.

No violation of rights

Referring to the Chief Justice's practice direction which took effect o­n Jan 3, Kuthubul said the council was of the opinion that it could be improved to ensure that the detainee's rights are not violated.

He also said that the council has constantly called o­n the police to allow arrested suspects to inform relatives at the first available opportunity of their arrest so that they could contact and retain a lawyer who can be present at the remand proceeding.

In his address, Kuthubul said the council noted with concern the direction which states that the magistrate are advised to ask the detainee whether he was given the opportunity to seek legal representation and whether he wanted a lawyer to represent him in the remand proceeding.

"The direction provides that in the event that the detainee wishes to be represented by a counsel then the magistrate has to ask the police whether there is any objection o­n their part."

"If the police are able to discharge the burden of proving that the right to counsel would interfere with investigations, then the detainees is denied such right."

"I believe that during the period the police is called to discharge this burden of proof, the arrested person will not be represented by a counsel. Without a counsel the arrested person will not be able to make any submission in reply to the police application to deprive him of the constitutional guarantee right to consult and be defended by a lawyer," he said.

He sad the right to counsel in a remand proceeding should be made automatic and if this right is made automatic, there is no need for the magistrate to ask whether the suspect wants a legal representation or not.

Short remand order

Kuthubul also said that the council is also concerned with the direction which advised magistrate to order a short remand order in the event the detainee expressed his wish to seek legal representation.

"How can you be remanded o­n the basis that you need a lawyer?," he asked.

He urged the judiciary to consider incorporating the recommendation of the Human Rights Commission's recommendation in 2001 that a detainees be given a right access to a lawyer as soon after his arrest.

He also hoped that the council's effort to highlight the issue of police powers and rights of detainees are not misconstrued as "police bashing".

"This (police bashing) has never been our intention as we believe that the importance of the police force is in equal paramount. However there must be a balance between the interest of the society and that of the individual."

"This balance lies at the heart of the law, practice and procedure concerning police powers, their exercise and the rights of the detainees," Khutubul added.