To stem the rising tide of crime, there is a demand for reviving preventive detention laws similar to the controversial Emergency Ordinance. This demand, popular though it may be, must be subject to critical scrutiny.
DESPITE the repeal of the ISA and the end of the Emergency Ordinance, there is no dearth of laws that permit proactive, preventive, pre-emptive measures well before a crime is committed.
Under the Criminal Procedure Code, police have wide powers to intercept communication, investigate any suspicious goings-on, question suspects, search and seize evidence and detain people without a warrant on the suspicion that a “seizable offence” is about to be committed.
In fact, the CPC has a special Part IV on Prevention of Offences.
There are provisions for security for good behaviour; holding of inquiries; power to require appearance of any person or production of any document or property.
These powers are useful for preventing crime.
No human rights advocate argues that the police must arrest only after a theft, rape, murder or kidnapping has already been committed.
Pre-emptive police action is necessary and permissible under the CPC.
Penal Code: The amended Penal Code contains Chapter VI on offences against the state; Chapter VIA on terrorism, and Chapter VIB on organised crime and membership of criminal groups.
Evidence Act: Under the Evidence Act, testimony of agent provocateurs is admissible. Illegally obtained evidence can be used in court.
Act of 1959: Under Section 3 of the Prevention of Crime Act 1959 (POC), anyone can be arrested without a warrant if a police officer has “reason to believe that grounds exist which would justify the holding of an enquiry”. An Inquiry Officer conducts the enquiry.
The suspect’s name can be entered on a register. He can be remanded for 14 days and the remand can be extended repeatedly by a magistrate. Police supervision is allowed. Bonds can be imposed.
However, there is a rule of law safeguard: the suspect must be taken to court periodically rather than be detained indefinitely by executive order.
SOSMA: As pointed out in the column on July 11, the Security Offences (Special Measures) Act (SOSMA) authorises preventive detention up to 1+28 days before a trial. The anonymity of witnesses is protected. Even if an accused is acquitted of the charge, he can be put away in remand for an indefinite period till the entire appeal process is completed.
Emergency Ordinance: Under all the laws mentioned above, the fate of the suspect is ultimately in the hands of the courts. In contrast, the Emergency (Public Order & Prevention of Crime) Ordinance 1969, like the ISA, authorised the Executive to be accuser, prosecutor as well as adjudicator and to detain without trial for renewable periods of two years. There was no provision for judicial scrutiny of executive detention.
For this reason the ordinance was criticised internationally and brought Malaysia much bad publicity.
Police developed a voracious appetite for the EO. In 2011 alone, 722 people were detained under the EO in the first eight months!
Suhakam reports that on April 13, 2011, of those detained under the EO, there were 30 youths between 16 and 21, of whom six were involved with stolen motorbikes!
GPS technology: Existing laws need to be supplemented with vigorous use of nano-technology to keep an electronic watch on crime suspects.
To this effect, the various laws need to be amended to authorise use of GPS tracking system on the authority of a court.
The period for which a person can be subjected to the indignity of wearing a tracking device must be prescribed.
The serious offences for which this innovative way of curbing crime can be employed should be laid down.
The category of persons subject to this new law must be specified.
It is submitted that pre-trial suspects, prisoners released after serving sentences for scheduled serious offences, probationers, parolees and some former EO detainees may, in the discretion of the court, be subjected to this technique.
There are two dimensions to the use of these GPS devices. First, a newly established police control centre can track the whereabouts of all persons tagged. This will be time and labour intensive.
However, experience of countries like the United States and Australia indicates that the cost of this supervision is much lesser than incarceration.
And the benefits for crime prevention or prosecution are easily apparent.
Second, technology is already in place that ordinary citizens may be able to subscribe to a handphone programme that will alert them to the presence of a GPS-tagged person in their vicinity.
The citizen could then take pre-emptive measures or alert the nearest police station to the fact.
Conclusion: Amendments to the CPC, Prevention of Crime Act and SOSMA could authorise use of tracking devices to detect, apprehend and keep under scrutiny the serious criminal elements in our midst including the 2,000 detainees who were recently released on the expiry of the EO.
Police nostalgia for unfettered powers that allow for preventive detention without judicial trial is understandable.
The previous law allowed circumvention of painstaking investigations.
However, the age of human rights and the demands of the 21st century require new attitudes and resolves.
Instead of reverting to post-1969 type of legislation, let us use modern technology in our war against crime.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. He wishes all Muslim readers Salam Lebaran, Maaf Zahir dan Batin.
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