Mr. N. Surendran and
a team of other lawyers were representing the ten persons arrested at the
Prime Ministers Office in Putrajaya on 23 October 2008 for trying to hand
over an appeal letter to the Prime Minister (PM) calling for the release
of five members of the banned Hindu Rights Action Force (Hindraf) and
others detained without trial under the Internal Security Act 1960 (ISA).
They were the first persons to be arrested after the organisation was
declared unlawful on 15 October 2008.
On 24 October 2008 during the remand hearing at
Kajang Magistrates' Court, Surendran informed the Magistrate that the
police had been negligent in their handling of detainee Lourdes
Mary. She is diabetic but had not been given her diabetic
medications including her insulin injections causing her to faint in
court during the proceedings, She had to be rushed to hospital (please
Her leg had swollen to twice its normal size. Lourdes had been brought to
court at 8.30am but collapsed at around 12 noon.
As Surendran left the court after the hearing he was approached by two
police officers and told that a report had been lodged against him and
that he was being investigated for having said in court that the police
were negligent. They later issued Surendran a notice under Section 111 of
the Criminal Procedure Code (CPC) dated November 3, asking him to present
himself for questioning at the Putrajaya Police Head Quarters on Thursday
6 November 2008 at 2.30pm. The Investigating Officer Chief
Inspector Saunders also told Surendran that he was being investigated
because of his statement in court.
Surendran, in a statement
dated November 3, said:
"This development is
very disturbing as it encroaches upon the sacrosanct duty of an advocate
to speak without fear and favour on behalf of citizens. The liberties of
the people are put at serious risk when lawyers are harassed or
questioned merely for speaking on their behalf in a court of law. Indeed,
it is fundamental in Commonwealth countries that lawyers are to be free
to advocate their clients cases without interference or prosecution by
the authorities, especially so in criminal matters. It is of utmost
importance that the authorities recognise and accept the crucial role
played by lawyers in the criminal justice system and it is hoped that
they will refrain from such actions in the future".
The President of the
Malaysian Bar, Ambiga Sreenevasan, on November 6, did say:
'We are perturbed that the
police served a Section 111 notice on lawyer N. Surendran in relation to
statements he allegedly made to the magistrate in court in the course of
proceedings. N. Surendran was questioned today by the police pursuant to
a police report made against him for the alleged statements. We are
seriously concerned, as no offence appears to have been committed and the
police were unable to enlighten him as to what offence they are
We therefore view the police
questioning as an act of pure harassment and intimidation that encroaches
upon the ability of an advocate and solicitor, who is an officer of the
court, to perform his duties effectively and to the best of his ability.
This harassment must stop if
we are indeed committed to the principle of access to justice and to the
Rule of Law. It is internationally recognised that lawyers perform a
vital function when they act for their clients in the pursuit of justice.
It is also internationally recognised that they must be permitted to
carry out these functions freely.'
The police are yet to
discontinue the investigation against Surendran.
HINDRAF is a movement that
advocates for Indian rights in Malaysia that emerged in 2007.
On the 13 December 2007 five
Hindraf leaders were detained under the Internal Security Act, 1960 (ISA)
and issued a two year detention order. They are P. Uthayakumar, R.
Kengadharan, V. Ganabatirau, M. Manoharan and a senior executive with
Malaysia Building Society Bhd, K. Vasantha Kumar. Leader P.
Waythamoorthy fled to London. The five who are being detained
without trial have come to be known as the HINDRAF 5.
Despite the detention of
their leaders, the movement continued to advocate for rights, and on 15
October 2008 the Home Minister Datuk Seri Syed Hamid Albar declared it as
In a statement he said:
"As a result of the
investigations, the Home Ministry, as per its authority under sections 3
and 5 of the Societies Act 1966, has declared Hindraf unlawful and
detrimental to peace, public order, security and the moral values of
"I feel that if we
don't rein in their activities, they will continue to jeopardise security
and public order, and our country's sovereignty, as well as upset the
harmony among races".
Syed Hamid said the decision
to ban the movement was based on all of the activities the organisation
had been involved in since its beginning. The Home Minister stated
that Hindraf were trying to exploit racial issues within Malaysia and causing
distrust between Indians and Malays which was detrimental to public order
and safety. He further urged citizens to avoid becoming involved in
any way with this organisation or its activities.
On the 23 October 2008, the
six year old niece of detained Hindraf leader P Uthayakumar, accompanied
by ten other persons, went to the Prime Minister's office to hand over an
appeal letter, asking for the release of her uncle. They were arrested
and detained. In Malaysia, within 24 hours, the police have to obtain a
further remand order if they want to continue to detain the suspects
further for investigation.
On 24 October, Magistrate
Nurdiana Mohd Nazari, who heard the remand application, allowed further
remand for three days for ten of them, including Lourdes Mary.
It was during this remand
hearing, that Lourdes Mary collapsed and had to be rushed to the
The ISA is seen to represent
a deteriorating human rights and democracy situation in Malaysia by the
government. It allows for detention without trial and Section 8
(power to order detention or restriction of persons) states that if a
Minister is satisfied that the detention of any person is necessary for
the security of Malaysia they can issue a detention order directing that
person to be detained for a period not exceeding two years.
However, this detention order can be renewed by the Minister, which is
not uncommon therefore making detention effectively indefinite: AHRC-UAC-217-2008
By declaring the HINDRAF as
unlawful, it generally made associating in any way with HINDRAF now a
crime. As an example, section 48(1) of the Societies Act 1966 states
:"(1) Any person who in any manner acts on behalf of, or represents,
or assists, whether in a professional capacity or otherwise howsoever,
any unlawful society, or any person who was an office bearer thereof as
if he continues to be an office-bearer thereof, or any body which was the
governing body of the society or of any branch thereof as if it continues
to be such governing body, in relation to any matter, shall be guilty of
an offence and shall be liable, on conviction, to imprisonment for a term
not exceeding five years or to a fine not exceeding fifteen thousand
ringgit or both.
The United Nations Basic
Principles on the Role of Lawyers is an international standard designed
to assist Member States in ensuring the proper role of lawyers. These should
be respected and incorporated into Governments national legislation and
practice. Under Section 14 lawyers are to act to protect the rights of
their clients and to promote justice, upholding human rights and
fundamental freedoms as recognised in national and international law,
acting freely and diligently. Under Section 16 Governments should
ensure that lawyers can thus perform their professional functions without
'intimidation, hindrance, harassment or improper interference'.
Further, under Section 18 of
the Basic Principles it states: 'Lawyers shall not be identified with
their clients or their clients' causes as a result of discharging their
functions', and importantly in Section 20: 'Lawyers shall enjoy civil and
penal immunity for relevant statements made in good faith in written or
oral pleadings or in their professional appearances before a court,
tribunal or other legal or administrative authority'.
Surendran acted within his
professional function by drawing attention to his client, Lourdes Mary’s
right to medical attention and the subsequent denial of this by police
that lead to her ill-health. That the police have failed to
investigate the serious consequences of officers' actions towards
Lourdes, causing her to faint and be rushed to hospital, but have acted
with efficiency and promptness regarding their 'reputation' and its
possible defamation, casts a shadow over Malaysia's reputation regarding
human rights within the international community.
Please write letters to the authorities listed below
stating your concern over Malaysia's deteriorating human rights record
and the lack of freedom or independence of lawyers.
SAMPLE LETTER by AHRC:
MALAYSIA: Please stop
harassment against a lawyer informing court of police negligence
Name of victims:
1. Mr. N. Surendran, lawyer
2. Ms. Lourdes Mary, client
Name of alleged perpetrator:
Date of incident: 24
Place of incident: Kajang
Magistrates' Court, Putrajaya
I am concerned to learn of another
example of the worsening human rights record and further deterioration of
freedom in Malaysia.
On the 24 October 2008 Mr. N. Surendran,
a lawyer, who was representing clients, including Lourdes Mary, one of 11
persons arrested on the 23 October 2008 when attempting to hand over an
appeal letter to the Prime Minister at the Prime Minister's Office asking
for the release of the Hindu Rights Action Force (Hindraf) five who have
been detained without trial under the Internal Security Act 1960 since 13
I am aware that he informed the court
that police had been negligent in ensuring that Lourdes Mary received the
required medical attention. Lourdes Mary is a diabetic and needed
her medication, including insulin injections. Being denied her
medication, her leg swelled up and she suffered pain and great
discomfort. She fainted in court during the remand hearing and had to be
rushed to hospital.
I am informed that when Mr. N. Surendran
left court he was approached by police officers, who told him that a
report had been lodged against him for what he had said in court
concerning police negligence. It was also confirmed later by the
Investigating Officer Chief Inspector Saunders that Surendran was being
investigated for the statements he made in court.
Subsequently, a Section 111 of the
Criminal Procedure Code (CPC) notice dated 3 November 2008 was issued to
him requiring him to report for questioning at the Putrajaya District
Police Headquarters on Thursday 6 November 2008 at 2.30pm. This has
further been confirmed by the Investigating Officer Chief Inspector
Saunders, the questioning is to be on Thursday 6 November 2008 at 2.30pm.
The police have still not discontinued
their investigation against Mr N. Surendran.
I am informed that the International
Covenant on Civil and Political Rights (ICCPR) includes under Article
14.1 that everyone shall be entitled to a hearing by an independent and
impartial tribunal, and in Article 19 that everyone has the right to
freedom of expression.
This case clearly illustrates police
harassment and persecution of Surendran over his comment on police
negligence to the Magistrate, the level to which the independence of
lawyers has become threatened.
I am further informed that police have
failed to investigate the issue of Lourdes Mary's denial of medical
care and medication for her diabetes during police custody, which caused
her medical condition to worsen. The police should not be immune from
criticism, particularly when errors have been made that could have cost
the life of a detainee. Rather than trying to protect their 'reputation',
police should be investigating their own procedures and officers, and
allow lawyers to perform their professional functions free from political
In light of the above, I urge you to
take immediate steps to stop this harassment against Surendran by the
police and to ensure that Surendran can continue performing his
profession as a legal representative without further harassment.
If this kind of police action does not
stop, it will affect the independence of lawyers and their ability to
perform their duty of upholding then cause of justice without fear or
I also urge you to investigate the
police officers responsible for failure to provide proper medical care
and attention to the detainee.
I take this opportunity to call upon the
government of Malaysia to repeal the Internal Security Act, 1960 (ISA)
and other laws that allow for detention without trial. I call on the Home
Minister to also revoke all current 2-year detention orders and release
all those being detained without trial.
I also call on the Home Minister to
revoke his order making HINDRAF unlawful, and to respect the freedom of
association and expression.
PLEASE SEND YOUR LETTERS
1. Dato' Seri Syed Hamid bin
Syed Jaafar Albar
Blok D 2, Parcel D
Pusat Pentadbiran Kerajaan Persekutuan
Fax: +60 3 8889 3854
Tel: +60 3 8886 3299
2. Dato' Seri Abdullah Ahmad
Prime Minister's Office Malaysia
Perdana Putra Building
Federal Government Administrative Centre
Fax: +60 3 8888 3444
Tel: +60 3 8888 6000
3. Tan Sri Musa Hassan
Inspector General of Police (IGP)
50560 Bukit Aman,
Fax: +60 3 22725613
Tel: +60 3 22626015
4. Tan Sri Abu Talib Othman
National Human Rights Commission (SUHAKAM)
Tingkat 29, Menara Tun Razak,
Jalan Raja Laut,
50350 Kuala Lumpur
Fax: +60 3 2612 5620
Tel: +60 3 2612 5600
and to diplomatic
representatives of Malaysia accredited to your country.
PLEASE SEND APPEALS IMMEDIATELY.