Court of Appeal must decide on IO's presence at remand hearings, says ex-Bar chief
PETALING JAYA : A Court of Appeal decision is crucial to settle the legal uncertainty over whether a magistrate can issue a remand order without the investigating officer being present, a former Malaysian Bar president said.
Salim Bashir noted that conflicting High Court rulings have created confusion.
'Regardless of the outcome, a Court of Appeal ruling would bind lower courts and bring clarity to the law,' he told FMT.
He said that until the Court of Appeal resolved the matter, the latest High Court ruling had to be followed.
Salim, who previously led the Bar Council's criminal law committee, was commenting on a High Court decision last week that quashed a remand order because of the IO's absence, declaring the proceedings unlawful.
Justice Jamil Hussin ruled that Section 117(1) of the Criminal Procedure Code requires strict compliance.
He said the provision only allows the investigating officer, and not any other policeman or representative of the investigating officer, to appear at a remand hearing.
Jamil said the magistrate at the Jinjang remand centre should have rejected a remand application since the IO was not present.
In a High Court ruling last July, Justice Abu Bakar Katar also quashed a remand order after stating that a police sergeant could not stand in for the IO.
Both the rulings contradicted a High Court ruling last July by judicial commissioner Kan Weng Hin, who held that a remand order remains valid if another police officer who is knowledgeable about the case appears in the IO's place.
Lawyer Rafique Rashid Ali said the matter should be heard by an enlarged panel of Court of Appeal judges due to its impact on law enforcement and suspects' rights.
'Magistrates need to question the IO on what was done in the last 24 hours to justify further detention. This is critical to ensure suspects' liberties are protected,' he said.
Section 117(1) of the CPC allows police to seek additional detention if investigations cannot be completed within 24 hours.
Rafique said if the ruling goes against the prosecution, Parliament could still amend the law.
FMT has reached out to Attorney-General Dusuki Mokhtar for comment.
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