|Tan Sri Zaman Khan & Datuk Kuthubul|
(Outline of Paper presented at the Proham-UM Law Faculty Discussion on Serious Crime held at University Malaya, Law Faculty on July 25, 2013)
(A) REPORT OF THE ROYAL COMMISSION TO ENHANCE THE OPERATION AND MANAGEMENT OF THE ROYAL MALAYSIA POLICE 2005
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.
(B) THE ROYAL COMMISSION CAME UP WITH 10 STRATEGIC THRUSTS
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
(C) RECOMMENDATION TO ENHANCE INVESTIGATIVE POLICING
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)
(D) PROACTIVE INVESTIGATIONS
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.
(E) UPGRADING STANDARDS OF POLICE INVESTIGATIONS
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.
(F) MAKE POLICING COMPLY WITH PRESCRIBED LAWS AND HUMAN RIGHTS
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
G) ROYAL COMMISSION’S VIEW ON PREVENTIVE LAWS
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.
(I) EXISTING LEGISLATIONS WHICH THE POLICE CAN RESORT TO IN ORDER TO RESOLVE THE ISSUE OF SERIOUS CRIME
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.
§ 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.
(J) ADDRESSING ISSUES ON SERIOUS CRIME
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.
(K) ARE OUR COURTS ABLE TO ASSIST IN RESOLVING ISSUES OF SERIOUS CRIME
• 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.