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Sunday September 29, 2013 MYT 12:00:00 AM
Sunday September 29, 2013 MYT 11:44:37 AM
by shaila koshy
KUALA LUMPUR: There are insufficient safeguards in the proposed amendments to the Prevention of Crime Act, says a policy think tank.
Sedar Institute executive director Ivanpal S. Grewal said the provisions seemed to be contrary to basic human rights principles and had also retreated to the repealed Internal Security Act (ISA) and Emergency Ordinance (EO).
He said there was no overseeing body to monitor the police for any misconduct.
Noting the balance between the rights of the public and the rights of any individual was a fine line, he said the state should not act in a way that trampled on the very rights they were claiming to protect.
On whether the Prime Minister had gone back on his word that there would no more detentions without trial, he said: “We must be careful not to jump the gun. The full breadth of the amendments must be appreciated and the philosophy behind it will only become evident during the debate in Parliament.
“However, the Home Ministry and Attorney-General’s Chambers must be mindful of the Prime Minister’s assurance and also the A-G himself when they made it quite clear that there will be no preventive detention.”
Ivanpal said “outsourcing” the powers to issue detention orders to the Prevention of Crime Board was a step in the right direction and that the scepticism stemmed from the fact that the decisions of the PCB would escape judicial review.
He called for the PCB’s standard operating procedure and guidelines to be made known so “lawyers can then actually challenge such detentions in court even if on procedural grounds alone”.
Another option would be for the PCB to have its own internal appeal mechanism, he said, adding that access to justice was a fundamental aspect of the rule of law and it did not augur well if Malaysia abandoned this.
He said the meaning of “serious offences” in the Penal Code should also be made clear as was in British and Australian legislation.
On the standard of “sufficient evidence” before detaining someone, Ivanpal said the required threshold for an inquiry was lower than a court trial and this would give police greater flexibility.
He noted that detention orders were an effective tool against organised crime. However, he said he believed a suspect should be confined to his home and the order should, for example, bar him from meeting known accomplices so his rights were limited but not taken away.
Eleven amendment bills have been tabled in the Dewan Rakyat to deal with crime and security threats from inside and outside the country . The Prevention of Crime Act is now to be extended to the whole of Malaysia.
Ivanpal talks about whether these extensive amendments - touching on organised crime, offences against children, domestic violence, enhanced penalties - will help curb crime as well as assist police and other enforcement authorities in doing their job effectively?
Q: Which would you say are good provisions that have been proposed and which seem worrisome? Are the safeguards effective enough to ensure that the rights of society and the accused are well balanced?
A: I believe the provisions are worrying as the amendments on the face of it seem to be contrary to basic human right principles and it also harkens back to the now repealed Internal Security Act (ISA) and Emergency Ordinance (EO). The safeguards are clearly insufficient because there is no oversight body to monitor the police for any overreach or misconduct. The IPCMC (Independent Police Complaints and Misconduct Commission) would have been the ideal safeguard. In the end, the balance between the rights of the public and the rights of any individual is a fine line however the state must not act in a way that tramples on the very rights they are claiming to protect.
Q: Has the Prime Minister gone back on his word there would no more be detention without trial? Are some of the provisions to strengthen the Prevention of Crime Act almost like a backdoor to re-introduce the controversial provisions from the Emergency Ordinance and Internal Security Act, albeit with minor amendments, for example, establishing a PCB to issue detention orders?
A: We must be careful not to jump the gun. The full breath of the amendments must be appreciated and the philosophy behind it will only become evident during the debate in Parliament. However, the Home Ministry and the Attorney General’s Chambers must be mindful of the PM’s assurance and also the AG himself when he made it quite clear that there will be no preventive detention. The PCB must be different from the similar review boards that existed under the EO and the ISA and were found to be resoundingly ineffective as they constantly deferred to the wishes of the Minister in charge. While the move to outsource the powers to issue detention by police to the PCB is a step in the right direction, the scepticism stems from the fact that the substantive aspects of the PCB’s decision will escape judicial review.
Q: Is the PCB any different from the police or Home Minister’s actions under the EO or ISA? How does an inquiry issue a detention order, let alone conclude that a registered person “has committed two or more serious offences”?
A: As the devil is in the detail, the Standard Operating Procedure and the Guidelines of the PCB must be made known so lawyers can then actually challenge such detentions in court, even if on procedural grounds alone. Another option will be for the PCB to have its own internal appeals mechanism and again, any individual slapped with a detention order can challenge its validity before the appeals board and be provided with legal representation. Access to justice is a fundamental aspect of the rule of law and it does not augur well if we dismantle this fundamental right.
The determination of serious offences must be made clear in the Penal Code similar to criminal law legislation in the United Kingdom and Australia where crimes are classified as serious if there are aggravating factors etc. So all of this has to be known as a further fundamental aspect of the rule of law is that an accused must know the crime he is being charged with and the reason it is classified as serious. Only then he will be able to effectively defend himself. So again, secrecy of this whole process will only fuel the doubts the public has about the integrity of the criminal justice system.
Q: If the inquiry report must have “sufficient evidence” of the individual having committed two or three serious offences before a detention order is issued, shouldn’t that evidence be good enough for a trial?
A: Ideally the evidence should be able to withstand a trial but, as in cases of organised crime, the police have to deal with seasoned criminals at times and it would be difficult to procure evidence that will withstand the rules of evidence in court. Hence, under an inquiry one is not subject to the strict rules of evidence in court and with that lower standard the required threshold will be satisfied with more easily. In this respect, the police will need a degree of flexibility.
Q: Why do the enforcement authorities still need to extend a detention order? Shouldn’t they have spent the time gathering evidence for a trial?
A: Detention orders are not bad. It is an effective tool to combat organised crime. But I believe a suspect should be confined to his home and the order should for example bar him from meeting known accomplices etc. In that sense, his rights are limited but not taken away. This is something the public can accept as well. But any form of incarceration in Simpang Renggam without due process runs contrary to our human rights obligations.
Also, as the suspect is confined to his home or restricted to a certain area, for example, Petaling Jaya, then he will not be able to interfere with the investigations as well. In the end, a balanced approach is needed.
Q: How can there be no judicial review of a detention order in a democratic state?
A: Judicial review is the bedrock of Westminster democracies such as ours and any move to restrict it is retrograde. In fact, if there is matter that is sensitive then one can opt for secret courts like the Americans have for the surveillance programme under the Foreign Intelligence Surveillance Act or even appoint a specialist judge who is well versed with this area of the law to handle all the judicial review cases. Compromises can be reached but barring is completely is very hard to justify. Further, if judicial review is allowed under the Security Offences (Special Measures) Act 2012, then why not under the PCA?
Q: Is the provision for the protection of witnesses testifying against involved in organised crime in keeping with other jurisdictions? Does the accused never get to know or meet the accuser? While there is mention of the Public Prosecutor or DPP assisting the Inquiry Officer, there is specific denial of legal representation for the suspect.
A: This is obviously sensitive as organised crime have a gory way of dealing with crown witnesses and this is compounded by the fact that crown witnesses almost always are former accomplices. The protection is needed but then again any accused must have the latitude to cross examine the witness during trials. But keeping the identity of a witness secret is practised even in matured legal systems like the USA. I reiterate once again that any suspect that is being subjected to a detention order must in fact be allowed to challenge its validity and have access to legal representations. The scales of justice must be balanced.
Q: While the chairman of the PCB shall be or have been a judge, who should the other two members be?
A: They should be legally qualified and the chairman of the PCB should be at the very least be a High Court Judge. One member should be from the Bar Council while the other could be from the Judicial and Legal Services or the police.
Q: Re amendments to the Criminal Procedure Code – Is taking away concurrent sentences a good thing and will the increase in reward to a person who shows “unusual courage in keeping public order” from not more than RM100 to between RM1,000 and RM10,000 encourage the public participate more in crime prevention activities?
A: Sentencing is discretionary in nature and anything that interferes with that discretion must be justified. The removal of concurrent sentences interferes with that discretion. So on one hand, substantive judicial review of a PCB decision if disallowed on the basis that the discretion exercised by the board should not be subject to judicial review but at the same time the AG’s Chambers seem perfectly content with removing the discretion of judges when it comes to sentencing. The whole approach if logically flawed and rather politicised. I find it unfortunate actually.
As for the reward for “unusual courage in keeping public order” I really have no comments but I’ll say this, it is again political.
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Courts & Crime, Crime
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