|Denison, Prof Faruqi, Tun Zaki, Steve, Baljit, Datuk Vorah & K.Aru|
Preventive detention laws that deny accused persons trial before a court of law are relics of a by-gone era. Today, it is widely recognized that there is no utility in abhorrent laws such as the Emergency Ordinance in preventing crime or reducing the crime rate. Indeed, it has become an instrument of abuse in the hands of irresponsible members of the police or detaining authorities.
There is sufficient evidence, anecdotal or otherwise, that points to the Emergency Ordinance having been employed as a tool of oppression of detainees.
It is also a supreme irony that there is a call for new preventive detention laws, when we have today a law to deal with terrorism and national security (SOSMA ) that does not provide for such a draconian measure as detention without trial. Under SOSMA, a person can only be held for 28 days without trial for investigative purposes after which he must be released or charged in a court of law.
Yet, preventive detention laws for, presumably persons who are not regarded as terrorist or threats to national security, will allow for detention without trial by Ministerial Order and in all likelihood that Order would be insulated from judicial review by widely crafted privative or ouster clauses.
It cannot be gainsaid that crime prevention requires, in the main, effective policing and not repressive laws. Preventive detention laws that lend to inadequate and incomplete investigative practices and policing procedures.
Thus, instead of resurrecting an archaic law that is well past its use–by date, our focus should be on improving and enhancing policing procedures without sacrificing the fundamental requirements of the Rule of Law. This is not meant to denude the police authorities of the statutory powers that they already posses.
On the contrary, it is to weed out incompetent or sloppy investigations, abuse of power and corruption , that leads to miscarriages of justice.
Effective policing requires improving the capacity of the police by providing them with adequate resources and necessary training.
In short, we must look at ways and the means to modernize the police force. Shoddy policing to secure spurious convictions must be cast into the dustbin of history. We need a new slate. A modern police force, that is able to perform its functions within human rights norms.
However, this must be in tandem with an external oversight body such as the proposed IPCMC. The police, and for that matter no other public body, should be allowed to be law unto themselves. The inherent accountability under the IPCMC will undoubtedly strengthen the police force and there will be no need for a new dressed Emergency Ordinance or any other preventive detention law to deal with crime.
----------------------------Presented at the Proham- UM Law Faculty Discussion on Preventive Legislation & Serious Crime held on July 25, 2013 at University Malaya