Improving & Enhancing Policing Not Detention Without Trial

Denison, Prof Faruqi, Tun Zaki, Steve, Baljit, Datuk Vorah & K.Aru

By Steve Thiru (Bar Council Vice President)

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.

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Presented at the Proham- UM Law Faculty Discussion on Preventive Legislation & Serious Crime held on July 25, 2013 at University Malaya

PREVENTIVE LEGISLATION & SERIOUS CRIME ROUNDTABLE DISCUSSION

PROHAM & LAW FACULTY, UNIVERSITY MALAYA

ROUNDTABLE DISCUSSION ON

PREVENTIVE LEGISLATION & SERIOUS CRIME

 "IS THERE A JUSTIFICATION FOR PREVENTIVE LAWS

TO BE USED IN ARRESTING VIOLENT CRIMINALS IN MALAYSIA?"

 Date:                                        July 25,2013 (Thursday)

Time:                                        2.30pm to 4.30pm

Venue:                                     Bilik Persidangan, Law Faculty, University Malaya.

BRIEF PROGRAM

Panel Moderator            :           Datuk Dr Denison Jayasooria (Proham Secretary-General)

Word of Welcome         :           Dr Abdul Samad (Deputy Dean, Research-UM Law Faculty)

Overview Presentation   :           Datuk Kuthubul Zaman, (Proham Exco, Former Police Commission

Member & Former Bar Council Chair)

Reflections                     :            Tun Zaki Azmi (Former Chief Justice of Malaysa)

Comments

·         Prof Shad Faruqi, Professor of Law, UITM

·         Tan Sri Zaman Kan (Former CID Chief, PDRM),              

·         Mr Steve Thiru (Bar Council Vice President)

·         Mr James Nayagam (Suhakam Commissioner ),

·         Mr K.Arumugam (Suram Chair)

·         Datuk Baljit Singh Sidhu (Advocate & Solicitor)

·         Ms Ivy Josiah (Proham member & Former Police Commission member)

Open Discussion

Concluding Remarks

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Please note: (PDRM & EAIC have conveyed their apologies that they are unable to participate in this discussion.)

Please keep in touch with Proham : http://proham.blogspot.com/ Email: denisonproham@gmail.com/ Mobile 019 381 0914

Sabah cannot deal with illegals alone, states Tan Sri Simon Sipaun

The federal government must come up with a formula that would apply to the immigrants,including stateless persons, said former Suhakam commission Simon Sipaun.

KOTA KINABALU: A former Malaysian Human Rights Commission (Suhakam) commissioner has suggested that the illegal immigrant problem plaguing Sabah be dealt with fairly among all the states in the country.

 

Testifying before the Royal Commission of Inquiry (RCI) on illegal immigrants in Sabah, Simon Sipaun said the issue of illegal immigrants had become a national problem and it was not fair for genuine Malaysians in Sabah to deal with it alone.

On the issuance of Malaysian identity cards (IC) to foreigners, he said the government must come up with a formula that would apply to the immigrants, including stateless persons.

“The government should have been proactive in the first place. There needs to be strong political will to tackle this longstanding issue,” he said.

He also said that recalling and reissuing ICs in Sabah was a good suggestion as it would demand every person to be screened to ensure he or she was a genuine citizen.

Asked by conducting officer Manoj Kurup if reconciliation would be an effective way to address the problem, Sipaun said he was not sure if it would be effective as the problem involved many races from different countries.

“We cannot emulate how South Africa and Timor Leste solved their problem because they were faced with two communities. “I’m not sure how their success could work in Sabah,” he said.

The inquiry led by former chief judge of Sabah and Sarawak Steve Shim Lip Kiong continues on July 23.  (Bernama - July 19, 2013)

PROHAM & UM LAW FACULTY DISCUSSION ON SERIOUS CRIME & PREVENTIVE LAWS

Proham together with the University Malaya Law Faculty  is hosting a Roundtable Discussion
on July 25, 2013 (Thursday) from 2.30pm to 4.30pm at the Bilik Persidangan, Law Faculty, University Malaya.

The following have accepted Proham's Invitation to share their thoughts on this theme:-

Datuk Kuthubul Zaman, Proham Exco, 
 

Prof Shad Faruqi, Professor of Law, UITM

Tan Sri Zaman Kan (Former CID Chief, PDRM)

 

Mr Steve Thiru (Vice President, Bar Council)

Mr James Nayagam (Suhakam Commissioner )

 

Mr K.Arumugam (Suram Chair)

Datuk Baljit Singh Sidhu (Advocate & Solicitor)

 

 

Panel - moderated by

Datuk Dr Denison Jayasooria,

Secretary-General, Proham

PDRM & EAIC have conveyed their apologies that they are unable to participate in this discussion.

Other who have confirmed participation : Dato KC Vorah (Proham Exco), Datuk Vaithilingam (Proham member), Dr Lin Mui Kiang (Proham  member), Dr KJ John (OHMSI), Eric Paulsen (Lawyers for Liberty), Mr Raflly Nann (Yayasan 1Malaysia), Dr Abdul Samad (UM Law Faculty), Dr Sharon Kaur (UM Law Faculty)

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Please confirm participation : denisonproham@gmail.com

PROHAM DISCUSSION :PREVENTIVE LAWS & SERIOUS CRIME

"IS THERE A JUSTIFICATION FOR PREVENTIVE LAWS TO BE USED IN ARRESTING VIOLENT CRIMINALS IN MALAYSIA?"

Date:                July 25,2013 (Thursday)

Time:                2.30pm to 4.30pm

Venue:              Bilik Persidangan, Law Faculty, University Malaya

There has been in recent time’s lots of discussion in the media about the rise in crime especially serious crime and the call by certain quarters for preventive laws like the EO to be reinstated as a way to reduce serious crime and keep violent criminals out of the streets

The questions before us:-

Are the current laws adequate for the Police to use to bring the violent criminals and gangster especially the former EO detainees who were released with the repeal of the EO? Yes/No.

What have the Police been doing in addressing serious crime and criminals? If the Police know who the gangsters are especially those who were released in 2011 from Simpang Renggam (based on the IP files and records) what has been done and why are the Police not able to find the evidences to arrest and charge them for the criminal activities.

What has been done since 2005 when the Police commission report was released in implementing the recommendations pertaining to strengthening investigative and evidence based Police work? Is weak investigations the real problem and if yes what needs to be done to enable PDRM to be effective in undertaking high quality evidence base investigations.

PANEL SPEAKERS:-

Datuk Kuthubul Zaman, Proham Exco, former member

of the Royal Police commission & former Bar Council Chairman

Prof Shad Faruqi, Professor of Law, UITM

Tan Sri Zaman Kan (Former CID Chief, PDRM)

Proham has invited the IGP to send a senior currently serving Police officer to be on the panel and also representatives from Suhakam, EAIC & the Bar Council.

Panel is moderated by Datuk Dr Denison Jayasaooria, Secretary-General, Proham
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Please join us for this discussion. Please confirm participation via emai:-

denisonproham@gmail.com or sms 019 381 0914

INCLUSIVENESS AND RECONCILIATION IN MALAYSIAN SOCIETY

Tan Sri Simon sharing his thoughts at the RTD in KK, Sabah

By Simon Sipaun

I congratulate Jabatan Perpaduan Negara dan Integrasi Nasional (JPNIN) and Universiti Kebangsaan Malaysia (UKM) for organizing this discussion on inclusiveness and reconciliation. You must have reason to believe that this discussion represents a response to a felt need especially at this time, now that the 13^th general elections have finally come and gone. To organize this type of discussion in Sabah goes a long way towards promoting and maintaining national integration.

The PM was quoted in the press to have addressed a Gawai celebration in Sarawak on 9 June, 2013 appealing to Malaysians to choose inclusiveness and not exclusiveness in the spirit of togetherness in line with 1 Malaysia. Unfortunately in the same breath he described the opposition as knowing only how to make empty promises, bankrupt of ideas, dreamers and hungry and crazy for powers. This is not quite an appropriate approach to inclusiveness and reconciliation to achieve national unity bearing in mind that more voters voted for the opposition than the BN government. If the majority agrees with the PM the opposition would not have obtained any vote.

Ladies and gentlemen, the situation is that Peninsular Malaysians have known the same federal government for the last 56 years and those in Sabah and Sarawak for 50 years. On 5^th May, 2013 about 5.8 Malaysians voted for change against about 5.2 who voted for the BN government.

The majority who voted for change were rewarded with 89 seats in Parliament whilst the minority with 133 seats. We have a minority government. Democracy is usually associated with majority rule. In ordinary meetings decision is based on simple or two-third majority. It is better for the government to determine the root cause of any shortfall rather than to portray the opposition as bad for society because the majority no longer buys such description of the opposition. In a democracy, the opposition has a very important role to play.

Furthermore, experience indicates that opposition-ruled states in Penang, Selangor and Kelantan have performed admirably well despite the constraints by having no control over the government in Putrajaya.

Inclusiveness, amongst others, implies treatment of every citizen equally and without exception. It is the right way to move forward. Inclusiveness is regarded as an unavoidable national aspiration. Inclusiveness promotes and strengthens genuine national unity and integration.

Every citizen will feel that the country cares for him or her and reciprocates by showing genuine loyalty to the nation. It should be borne in mind that loyalty to the country is different from loyalty to a political party. The idea of inclusiveness is all the more relevant to Malaysia because there are so many potential divisive factors including geography, race, religion, language, history, culture, tradition and the like.  

Distorting historical facts by people in power does not help. For example, it took the federal government 46 long years to accept and acknowledge the birth of Malaysia on 16 September 1963. Malaysians in Sabah and Sarawak have been cajoled to believe that the age of Malaysia should be counted from August 31^st 1957.

I used to see slogan at the KK airport stating ‘celebrating 50 years of nationhood’ when Malaysia was only 44 years old. This is not conducive to the promotion and maintenance of genuine national unity and integration. It occurs to me that we do not hear federations being formed now, only federations breaking up. In the interest of genuine national unity and integration we should focus on our similarities and not on our differences. We should move away from politics dominated by racial and religious sentiments.  

If it is still the case all government forms should do away with information boxes meant separately for Malays, Chinese, Indians and others. I believe government forms such as application for government employment require the applicants to indicate his or her race and religion. In short let us focus on our status as Malaysians and human beings.

Allowing foreigners into the country without proper travel documents and move around with impunity especially in Sabah whilst   preventing a democratically elected MP who could be a potential 1^st lady PM of this country from entering the state defies logic and common sense. It is also against the spirit and principles of human rights. Surely this is not in line with inclusiveness and reconciliation. Government must show the good example.

It is not so much rhetoric and slogan but action on the part of the government which will create the impression on the people especially those who are better informed with greater awareness of what government should be doing and what is being done. Blaming a particular community for any shortfall is also not saleable because they know it is not true. Instead government loses credibility. The government needs to response to changing circumstances.

Generally people are getting more sophisticated with higher expectation. They are getting more and more intolerant of corruption, abuse of power, lack of transparency, cronyism, double standard, alleged selective prosecution and application of the law and so on.

Let me make one more point for the moment. The BN government should rule as the trustees of the people and in line with the principles of good governance. It must walk the talk.

The opposition for its part should provide constructive criticisms and keeps the government on its toes and ensure that abuse of power is minimized, if not, eliminated. The BN government must not forget that it is not a popular government. It won through excessive gerrymandering and other alleged electoral frauds. Thank you.

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Thoughts shared by Tan Sri Simon Sipaun (Proham Chairman) at a Roundtable Discussion on Developing an Agenda for National Reconciliation organized by Institute of Ethnic Studies (KITA) UKM and the Department for National Unity & Integration at Kota Kinabalu, Sabah on July 4, 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)