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Friday, 5 July 2013

Random Violent Crimes and the Emergency (Public Order and Crime Prevention) Ordinance

Dato Vorah at a Proham discussion (Photo taken in 2012)
There is no doubt that there has been an increase in violent crimes involving snatch thefts, robbery and house breaking. It appears these crimes are random in nature as against criminal activities run by syndicates or organisations. It is another matter, however, whether the increase in these crimes can be attributed to the release of the detainees under the  repealed Emergency (Public Order and Crime Prevention) Ordinance (the EO) in 2011 which was enacted by the National Operations Council in 1969 under the fourth Emergency Proclamation declared on May 15, 1969. Even before the repeal of the EO, there was a high number of such violent crimes and other crimes but to make a leap to say that the present high crime rate of violent crimes involving snatch thefts, robbery and house breaking is due to the release of these detainees is simply not borne out by credible evidence save for unverifiable anecdotes linking then to criminal syndicates or organisations.
If the authorities in fact know that these crimes have increased because they are committed by these former detainees then why are the authorities not increasing surveillance and footwork to nab these peoples for them to be prosecuted in court with evidence including circumstantial evidence what is allowed in law.
There appears to be a study done by Dr. Sundramoorthy (as reported in the papers)  on the matter but it is short on statistics before and after the EO and there is no evidence that has been made public to show that the increase is directly related to the release of the detainees after the repeal of the EO.
Unfortunately, apart from the call for a new law with elements of the EO in such law, nothing more is known about the study. Who commissioned it? Who were the members in the team that made the study? What crimes did they study? What were the ground rules they took for the study? What material did they rely on? What studies did they look at? Until we have an informed study that is made available to the public it is difficult for the public to come to any credible conclusion as to whether the release of these detainees indeed caused a marked rise in the random violent crimes as against organised or syndicated crimes. 
It is a worrisome issue that there are well intentioned statements by many calling for an introduction of elements of the EO which allow for preventive detention without trial. The strong Bar rendering its yeoman service, SUHAKAM with its far reaching studies and consistent call, the tireless efforts of social activist have all contributed over so many years to the repeal of all laws which allowed detention without trial. And the 2005 the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police Report (the Dzaiddin Report) carries many areas of study and made several recommendations. One of the recommendation of the Dzaiddin Report was for the repeal of the EO which the Commission said was a “lazy way” for the police to lock up suspects without conducting proper investigations.
There cannot be detention without trial, a human rights norm under the Universal Declaration of Human Rights 1948, and this is accepted by the Constitution. True there are certain provisions, very special provisions, with special procedure where laws were once made, the EO being one of them. But the laws were made under these provisions saw many cases of abuse by the authorities where the detainees were held incommunicado; there was no charge, no trial, no conviction on evidence providing for the process leading to conviction and sentence of imprisonment; persons were arrested and kept under detention on criteria that could not be reviewed objectively by the courts.
It cannot be gainsaid that Datuk Seri Najib Razak as Prime Minister walked the talk and was responsible for the repeal or annulment of several laws like the Restricted Residence Act, the Internal Security Act, the EO and the Emergency Proclamations. Let us not roll back all the good work done for the country in getting rid of repressive laws. We cannot ask for the return of the EO or any law allowing detention without trial.
Another fact in relation to the commission of crimes has to be noted; violent crimes have to be tackled, no doubt, and Datuk Denison in his thoughtful article published in the media has highlighted what Tan Sri Hasmy Agam, SUHAKAM Chairman, has stated, that the Human Rights approach is not soft on crime or criminals but called on the Police to enhance the effectiveness of its crime investigation, prevention and monitoring mechanism, as well as rehabilitation programme for former detainees.
Datuk Denison pointed out, “Even in the case of snatch thieves are these people not known, do they not leave a trial, where do they sell the items they steal? They all leave a trial of crime. What we need is serious Police work, the investigators, non-uniformed Police in the community more like undercover operations, better informer system, more processionals in the investigative team and better witness protection programmes.”
At the moment we are concerned with violent crimes connected with theft, robbery and burglary, not the sort of organised crimes of criminal syndicates or organisations. If it is an issue of syndicated or organised crime, Malaysia could study the RICO (the 1970 U.S. Racketeer Influenced and Corrupt Organisations Act) and SOCA (the UK Serious Crime Act 2005). These are far reaching laws which do not rely on preventive detention but on a proactive operation by a national agency against serious and organised crime through collaboration with the police and other enforcement and intelligence agencies to carry investigation with disruptive powers of interventions including resorting to the power of courts for seizure of assets.
Let us not by knee jerk reaction go to the old bad days by bringing back repressive laws of detention without trial with its attendant abuses. Let us work together not only to tackle random violent crimes but organised crimes and take note as Datuk Denison has noted that a stronger socio-economic intervention programme in the high risk communities is essential to prevent the outflow of people in high risk social-economic conditions into gangs, and that that being a national problem, all relevant agencies must work in an inter-agency approach together with civil society to address the root causes of serious crime.
No doubt as Datuk Denison has pointed out this is a long term approach, but in the meantime, there can be established a special panel comprising senior criminal lawyers, former Police Commissioners, the Bar Council, SUHAKAM and EAIC to review the area of serious crime and assist the Police to strengthen the investigative and evidence based policing in Malaysia. And many well agree with that.
K. C. Vohrah (July 3, 2013)

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