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Sunday, 28 July 2013

“No” to Preventive laws but “yes” to enhancing Police investigative powers

Denison, Prof Faruqui, Tun Zaki & Steven
Proham Press Release

Proham hosted a Roundtable Discussion together with the University Malaya, Law Faculty on July 25, 2013 which was attended by about 35 people including lawyers, academicians, civil society representatives, concerned citizens and media personal.
Among those who are participated were Tun Zaki Azmi (former Chief Justice),Dato KC Vohrah (Former Court of Appeal Judge) Tan Sri Zaman Khan (Former Commissioner of Police and CID Chief), Prof Emeritus Dr Shad Faruqi, Mr James Nayagam (Suhakam), Mr Steve Thiru (Bar Council), Mr K.Arumugam (Suram), Mr Eric Paulsen (Lawyers for Liberty), Dr Abdul Samad (UM Law Faculty) and from Proham: Datuk Kuthubul Zaman, Dato Siva Subramanium, Ms Ivy Josiah, Dr Lin Mui Kiang and Datuk Vaithilingam. The RTD was moderated by Proham secretary-general, Datuk Dr Denison Jayasooria

It was a fruitful discussion with an exchange of ideas. The focus of the discussion was whether the Police needs preventive laws (detention without trial) to address serious crime in Malaysia. There were those who spoke for the need to return to an EO type of legislation in order to address the rise in crime in Malaysian society.
However the dominant position held by a majority of the speakers was not to enact laws which provided ‘detentions without trial’ but to enhance the capacity of the Police to use the existing laws provided for in the Penal code and the Prevention of Crime Act 1959 or enact a law similar to the United States legislation, the racketeer influenced and corruption organisations act which has proved successful against organised crimes like gambling, robbery, money laundering etc.

Ten Key Findings from the Roundtable Discussion

 First, there is a strong consensus view that the Police needs support, encouragement and appreciation in undertaking difficult tasks in crime prevention. Critical review of the role played by PDRM does not mean our disrespect or disregard of the Police force. Our aspirations like those highlighted in the Police Commission Report are for world class policing.

Second, it must be noted that crime in Malaysian society especially organised crime is at a serious level and this is creating a sense of insecurity in our society. However we do acknowledge that there seems to be some conflicting data on the rate of crime released by Pemandu on the NKRA targets that crime was down in 2011 and 2012 but later in recent discussions this year it is being noted that there is a rise in crime due to the release of former EO detainees in 2011/2012. There is no credible evidence in the public dominion on the rise in crime associated with the release of EO detainees.

Third, those who are advocating a position against ‘detention without trial’ are not pro criminals nor soft on crime. On the contrary it is felt that we must be tough on crime. But the best way towards this is bringing the wrong doers before the courts in open trial. This was felt to be the strongest deterrent as tough laws in themselves do not serve as a deterrent as we note in the case of the Dangerous Drug laws. It was pointed out that the key is not “the severity of the law but the surety” or in other words “not the severity of the punishment but certainty of the punishment” 

Fourth, it was clearly articulated by a number of the speakers that there are currently adequate laws available to the Police in Malaysia. A good piece of legislation which had been neglected due to the over reliance on the EO is the Prevention of Crime Act 1959 (Revised 1983).

This act is meant to provide for the more effectual prevention of crime in Peninsular Malaysia and provides for the control of criminals, members of secret societies and other undesirable persons. It provides for 28 days remand for investigations and conducting an enquiry. An additional 28 days could be requested for. Part II of PCA, makes provision for an Inquiry officer appointed by the relevant Minister and the registry of persons who could be subjected to Police supervision. The current registrable categories could be extended in the schedule by the Minister. It has to be noted that there is concern whether some provisions are entirely constitutional.
Fifthly, the Penal Code was amended in 2012 with a new provision Chapter VIB to address issues pertaining to ‘organised criminal groups’. This was done in the light of the repeal of the EO and therefore anyone involved in organised crime or is assisting an organised criminal group can be charged under these provisions.

Sixth, there is now no provision for detention without trial in the Security Offences (Special Measures) Act 2012 (SOSMA) which replaced the ISA and which deals with terrorism and national security The Act provides for 28 days detention for investigative purposes. If this is step is taken by the Federal Government how can there be a return to detention by Ministerial order in the case of criminal activities?

Seventh, there are contradictory information on manpower and resources available in PDRM for criminal investigations and crime prevention. It was pointed out that less than 15% of the Police manpower is involved in crime investigations and therefore there is insufficient manpower, finances, facilities and equipment’s. In addition there were questions raised on the quality of supervision and training of investigative officers including the lack of forensic training and equipment.

In this context both PDRM and KDN must review Chapter 8 of the Royal Police Commission report which makes 26 different recommendations to improve investigative policing. If effectively implemented, it will enhance PDRMs performance in crime prevention.

Eight, concern was raised on the lack of preparation on the part of both the Prisons Department and PDRM when the EO detainees were released without adequate preparation for the rehabilitation and entry into society. It would have been possible with the information available on the detainees that they could have been registered under the Prevention of Crime Act and placed under Police supervision
Nine, that in addressing serious crime, the root cause of crime must be also addressed which requires socio-economic intervention programmes to address inequality, urban poverty, lack of adequate and affordable housing and ensure equal opportunities in education and employment. This social inclusion agenda will prevent new recruits into gang related activities. This agenda is beyond the role of policing and therefore a multi-agency intervention is necessary in cooperation between the Department of Welfare, Department of National unity and the Department for Youth and Sports.

Tenth and finally there must be a close partnership between PDRM, civil society, grassroots-communities and private sector in addressing serious crime. The community dimension is important but the engagement must bridge the ‘deficit of trust’ between enforcement authority and the citizen. This partnership can be built on the foundations of human rights.

Therefore, Proham calls on the Federal Government to address serious crime through effective use of investigative policing and not resort to preventive detention. We must strive for world class standards in Policing. 

Issued on behalf of Proham by Datuk Dr Denison Jayasooria (Proham Secretary General) & Datuk Kuthubul Zaman (Proham Exco). (Proham blog: Email contact:
July 28, 2013

Friday, 26 July 2013


Tan Sri Zaman Khan & Datuk Kuthubul
By Datuk Kuthubul Zaman Bukhari (Proham Exco, Former Royal Police Commission Member  & former Bar Council President)

(Outline of Paper presented at the Proham-UM Law Faculty Discussion on Serious Crime held at University Malaya, Law Faculty on July 25, 2013)


Terms of Reference:-

a)     To enquire into the role and responsibilities of the Police in enforcing the laws of the country.

b)    To enquire into work ethics and operating procedures.

c)     To enquire into issues of human rights.

d)    To enquire into training & facilities.

e)     To make recommendation for the improvement and modernisation of the Police Force.


1)     Modernise the role and functions

2)     Launch nationwide drive against crime

3)     Enhance Investigative Policing

4)     Eradicate Corruption

5)     Compliance with Prescribed Laws and Human Rights obligations

6)     Raise awareness of Women’s and Children’s Rights

7)     Improve the Establishment, Remuneration and Scheme of Service

8)     Enhance Human Resource Management and Performance

9)     Upgrade Equipment and Logistics

10)  Provide Better Police Premises and Housing 


The Commission made 26 recommendations to enhance investigative policing and these include:-

q   Improve supervision and monitoring of crime reports.

q   Establish reasonable grounds before arrest.

q   Draw up code of practice for search and seizure.

q   Proactive investigation

q   Standard of investigation.

q   Code on identification of suspect.

q   Improve Training of Investigating Officers.

q   Effective supervision through better case management.

q   Proper handling of investigation papers.

q   Greater use of Scientific and Technical aids in investigation.

q  Link National Fingerprint Database to PDRM.

q   Establish Multi-disciplinary and multi-agency investigation   team. (in UK, the British Series Frauds Officers are manned by personnel with necessary skills i.e. legal, accounting, banking, forensic, ICT and criminal investigation)


Detection, prevention and neutralisation of crime syndicate activities can only come about with proactive investigative policing

a)     Intelligence led investigation.

b)    Evidence based crime control system.

c)     Physical and electronic surveillance over organised crime, triads, socially threatening or deviant groups, to covertly use witnesses.

d)    Shadowing of security and criminal groups have led to many arrests under the Prevention of Crime Act 1959 (Revised 1983) and other preventive laws.

e)     Section 110(1) of the CPC gives the police power to carry out proactive investigative policing.

f)     Sting operations; using of agent provocateurs.


The Commission recommended upgrading the standard of police investigations

v   Better method of identifying the offender.

v   Examination of witnesses and suspects.

v   Supervision of investigation.

v   Use of physical and scientific evidence.

v   Fingerprint evidence

v   Improve training of investigating officers.



The Commission found that the numerous deficiencies in PDRM’s compliance with human rights obligations is the consequence of 2 main factors:-

1)     Existence of a range of preventive legislation that places restrictions upon fundamental liberties.

2)     Police abuse of safeguards provided for human rights in the prescribed laws i.e. CPC, Lock ups Rules, IGSO


Views of the Royal Commission:-

a)     Preventive laws that affect personal liberty like detention without trial are undesirable – Article 5 of the Federal Constitution

b)    Where there is a grave threat to security, economic life, public order and public morals, special measures may be necessary. These measures may necessitate the imposition of limitation on rights of individuals but such limitations must be determined by law, subject to rigorous checks and balances to prevent abuse.

c)     The position of the Royal Commission is consistent with Article 9, 10 and the Special Powers against Subversion, Organised Violence, Acts and Crimes Prejudice to the Public and Emergency Powers of Part XI of the Federal Constitution.

d)    Not all preventive laws are necessary because effective action can be taken under the existing laws.

e)     Police sometimes resort to preventive laws because it  provides longer period of custody to extract evidence or intelligence.

f)     All custodial deaths must be subject to inquest.

g)    The Police role is also to protect the human rights of individual whilst maintaining law and order. Hence compliance with prescribed laws and human rights standards must clearly be a supreme priority along with reducing crime.

h)     The goal and the net effect must be a fundamental transformation in the character of policing from one that   is too easily persuaded to seek recourse in extraordinary emergency laws at the expense of the rights of suspects to one that is sensitive and respectful of the rights of individuals.

(H) ROYAL COMMISSION’S RECOMMENDATIONS (in respect of the then existing preventive laws)

v  Amend Section 73 of ISA (detention for 60 days)

       Reduce period of detention to minimum

       Allow visitation by family members

       Access to legal counsel

v   Amend Section 3 of Dangerous Drugs (Special Preventive Measure) Act 1983 (also on detention)

       Reduce period of detention

v   Repeal the Restricted Residence (RR) Act 1933

       R.R empowers arrest and detention for a term specified in the order or an order to reside in a specified area for a term. The term may be extended up to the lifetime of the person. So the Commission is of the view that this legislation be repealed as action can be taken under other existing laws.

v  Repeal Emergency (Public Order and Prevention of Crime)   Ordinance 1969, (EO)

§  EO authorises the arrest and detention of any person suspected of having acted in a manner prejudicial to the public order or who is suspected to be involved in crime for the suppression of violence or the prevention of crime involving violence.  The Commission is of the view that EO has outlived its purpose (we are no longer under Emergency) and in some instances has facilitated the abuse of some fundamental liberties.


v  Prevention of Crime Act 1959 ( Revised in 1983)

§  This is an Act to provide for the more effective prevention of crime and for the control of criminals, members of secret societies and other undesirable persons and for matters incidental thereto.

§  A police officer may without warrant arrest a person if he has reason to believe that ground exists which would justify the holding of an inquiry into the case.

§  The person arrested must be produced before a Magistrate within 24 hours

§  The Magistrate based on a statement in writing where sufficient evidence exists to justify the holding of an inquiry then can order a remand for 28 days.

§  After the 28 days, if there is unreasonable delay in completing proceeding under the act the Magistrate will direct the release.

§     or

§  Direct that or the person be subjected to further remand of 28 days or be subject so the supervision of the police.

§  Every person remanded must be brought before an Inquiry Officer.

§  If no grounds for the lawful detention than the Magistrate can order the release.

§  The manner of inquiries is in Part II and the purpose of the inquiries amongst others is to determine whether he is a member of any of the registerable categories. Registerable categories are:-

§  Members of unlawful societies, triad, secret societies.

§  Persons belonging to any group, body or association involved in criminal activities involving violence or extortion.

§  Traffickers in drugs.

§  Human traffickers.

§  Illegal and unlawful gambling or gaming.

§If a person is determined a member of the registerable categories, then that person shall be subject to supervision of the police for a period of not exceeding five years and can be renewed and the person will be required to reside in a new town and he should be subjected to :-

·         Reside within the limit.

·         Cannot leave the area.

·         Needs to report regularly to the police.

·         Shall remain in doors for specified times.

§A registered person cannot consort with other registered person.

§If he commits an offence, the penalty will be doubled.

§Loitering between sunset and sunrise is an offence.

§So all those involved in crime can actually be monitored.

v  Other preventive laws include :-

Ø   Security Offences (Special Measures) Act 2012 (SOSMA)

Ø   Penal Code Chapter VI Offence against the State.

Ø   Penal Code Chapter VIA Offence relating to Terrorism.

Ø   Penal Code Chapter VIB Organised Crime - being a member of a criminal group is also an offence.

Ø  Attempt is an offence under the Penal Code.

Ø  Definition of terrorist is wide to include those who makes an attempt and also those who facilitate the commission.


The police force must:

1)     Address high incidence of crime.

2)     Focus on critical field of investigative policing.

3)     Successful detection.

4)     A thorough investigation in the collection of evidence.

5)     Prosecution of offenders.

            With the existing laws the police should be able to gather evidence for a successful

prosecution of the offenders.


       Procedures adopted by the court are as provided by the existing preventive laws

       Standard of proof in criminal cases – beyond reasonable doubt

       Burden of proof as provided under the existing preventive laws

       Evidence gathered by the police – whether sufficient under the existing preventive laws


       The existing preventive laws are sufficient to address the issues of serious crime and there is no        necessity for a new legislation to replace the repealed EO.

       The police should have taken positive steps to bring those released upon the repeal of the EO within the existing preventive laws.

       With enhanced investigative policing the issues of serious crime can be resolved.