Proham hosted a discussion
on the proposed amendments to the PCA on Sept 30, 2013. The review was undertaken
by Datuk Kuthbul Zaman Bukhari who led the discussion –paragraph by paragraph.
We identified a number of
major concerns and acknowledge that this proposed piece of legislation is a
clear backward step away from human rights compliance. We are of the opinion
that this is a major assault on human rights since Dato Seri Najib Tun Razak
took office as Prime Minister. We also note that this is inconsistent with the promises
he made when he took office as the Prime Minister and in the promises for democratic
reform made during GE 13.
We also note that there are major
discrepancies and inconsistences between the verbal statements and assurance
made by the Prime Minister, Home Affairs Minister and other ministers and the
actual text of the proposed amendments to the PCA. We are told verbally that
this new legislation is not a return of the ISA, that this is focused only on criminal-violent
gangs and that the decisions will be made by a Judge
Scope of the proposed legislation widened
However in reading the proposed
legislation one is shocked by the blatant disregard to human rights and widening
the scope of the proposed legislation. The proposed bill before Parliament which
seeks to amend the PCA (1959) has a new preamble which enlargers the scope of
the legislation from the original which is a specifically focused only on the “control of criminals, members of secret
societies and other undesirable persons”. The new preamble widens this to
add “…to cause a substantial number of
citizens to fear, organised violence against persons or property”
Pursuant
to Article 149 of the Federal Constitution
What is even more of major
concern is that this proposed PCA is now being legislated “…in pursuant to Article 149 of the Federal Constitution”. The
explanatory statement in point 3 states clearly “in order to allow the
introduction of detention without criminal charge or trial as previously
provided in the repealed Emergency (Public Order and Prevention of Crime)
Ordinance 1969 …and the Internal Security Act 1960 (Act 82), Act 297 is to be
changed to a law made pursuant to Article 149 of the Federal Constitution”.
As this proposed bill is made in pursuant of Article 149, the provisions
therein are inconsistent with all the basic and fundamental human rights guaranteed
in the Federal Constitution.
It must be noted that the original
PCA (1959) which the Police Commission did not call for its repeal when it did
the EO, is just an act of parliament which focuses on crime control, with some
consistency to fundamental liberties and with judicial review.
No
Judicial Review
Proham is also concerned
that the proposed bill removes judicial review as per the introduction of a new
section 15 A which states “there shall be
no judicial review in any court”. Further the new section 7B provides for too
many options for who can be the chairman of the Prevention of Crime Board. It
does not just qualify the chairman as a current siting judge but indicates that
the chairman could be appointed from a range of options namely “… who shall be or have been or be qualified
to be, a judge”. The options are too wide and there is a major difference
if the chairman is a current sitting judge. There are no qualifications of the
two other members and this is not good.
Detention
without trial
Proham is concern that the
proposed legislation allows for indefinite period of detention in the new part
IV A, 19A (1) “… for a period not exceeding two years… for a further period not
exceeding two years at a time…”
Access
to Legal Counsel & protection denied
Proham is also concerned
that legal access to counsel is denied as the provisions by the amendments of
section 9 (d) a new (5) also in the new section 9A (2).
Proham is concern with new
section 9A (2) that there is no review of witness statements in order to check
the reliability or cross examination of any person giving evidence on the case
as this can be easily abused.
Proham is concern over the
double jeopardy issues as per the new section 7c “… two or more serious
offences, whether or not he is convicted thereof…”
Proham
input to Home Ministry Neglected
Proham participated in two
dialogues with the Home Affairs Ministry (August 24 & 28, 2013) on matters
pertaining to serious crime especially gangs and violence. In both the gathering,
Proham highlighted the findings and recommendations of the Police Commission
Report (2005) to strengthen investigative Police and use the Prevention of
Crime Act (1959).
We affirmed that detention
without trial, removing judicial review and denial of access to legal counsel is
not the most effective way of crime prevention. We noted that the Police Commission
report documents major abuses of power when human rights is side-lined
Malaysia’s
position compromised for UPR Review at the UN
These proposed amendments to PCA and the curtailment of
fundamental liberties will adversely affect Malaysian’s standing at Universal
Periodical Review process at the UN Human Rights Council during the (17th
session) on Oct 24, 2013 from 2.30pm to 6pm in Geneva. (http://www.ohchr.org/EN/HRBodies/UPR/Pages/MYSession17.aspx)
At the last UPR review
process held on Feb 11, 2009 Malaysia gave a number of assurances to the global
community that it will strengthen human rights compliance in Malaysia.
Furthermore Malaysia is currently a member of the Human Rights Council and the
proposed PCA amendments are inconsistent with Malaysia’s global position as a
promoter of human rights and moderation.
Proham
Recommendations on PCA
Therefore, Proham calls of
the Federal Government :-
Firstly, to withdraw the
current proposed amendments to the PCA
Secondly, to further engage
with stakeholders like Suhakam and Bar Council Thirdly, to propose new amendments which is closer to the original PCA:-
·
Keep the PCA specific for the “control of
criminals, members of secret societies”
·
Enlarging its coverage to the whole of Malaysia,
·
Introduce electronic monitoring,
·
Remove the role of the Minister and replace
it with the Prevention of Crime Board for purposes of registration for police
supervision and electronic monitoring.
Fourthly, Proham is not
supportive of Federal Government reintroducing detention without trial nor
restricting judicial review or denying suspects access to legal counsel.
Fifthly, Proham really hopes
that the Federal Government will empower and enable the Police to undertake their
work of crime control in compliance with human rights standards and undertake
world class policing in modern-democratic Malaysia.
----------------
Issued on behalf of Proham by
Datuk Kuthbul Zaman Bukhari (Proham Exco) and Dr Denison Jayasooria (Proham
Secretary-General)
Oct 1, 2013
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