Wednesday, 2 October 2013

Amendments to the Prevention of Crime Act 1959 are Repugnant to the Rule of Law - No to Preventive Detention Without Trial

Amendments to the Prevention of Crime Act 1959 are Repugnant to the Rule of Law - 
No to Preventive Detention Without Trial

Joint Press Statement of The Malaysian Bar, Sabah Law Association and Advocates Association of Sarawak



The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are appalled by the numerous proposed amendments to the Prevention of Crime Act 1959 (“PCA”) and 10 other legislations, including proposed amendments to the Criminal Procedure Code and the Evidence Act 1950.

The proposed amendments to the PCA are objectionable and repugnant to the rule of law. The amendment to the preamble of the PCA which recites Article 149 of the Federal Constitution is revealing in that it does not merely amend the PCA but it effectively re-introduces the Internal Security Act 1960 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. These amendments violate the rule of law and ignore due process and infringe upon our constitutional rights.

Despite assurances by certain quarters of the government that laws similar to the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Internal Security Act 1960 would not be resurrected, the government is now seeking to re-introduce via the Prevention of Crime (Amendment and Extension) Bill No. 8 of 2013 the most offensive elements of these repealed legislations.

The proposed amendments to the PCA seek to revive preventive detention without trial, repeated renewals of such detention without trial, oust the jurisdiction of the judiciary, deny the rights of suspected persons to due process of the law, such as the right to legal representation and the right to be heard before any adverse decision or direction is made.

The amendments provide that a suspected person does not have a right to legal representation during an inquiry to determine whether the person is a member of a registrable category under the PCA and therefore liable to supervisory or preventive detention orders. The suspected person is not provided with the grounds for any adverse findings, and does not have the right to appeal or apply for review to the courts against any adverse findings or a supervision order.

The amendments are an affront to the judiciary. The judicial review powers of the judiciary have been removed by s.15A in respect of any act done, finding or decision made by the Prevention of Crime Board (“Board”) under the PCA, except in regard to any question on compliance with any procedure required in the PCA. This limited concession is meaningless as the amendments go on to provide that the Board shall set its own procedures as it wishes. The discretionary sentencing power of the judiciary to order a discharge with a caution or a binding over for good behavior has also been removed by the proposed s.15(6) of the PCA.

The proposed amendments appear to provide for safeguards with regard to preventive detention orders, namely:-

(a) The amendments provide for the establishment of the Board. The Board is vested with the power to order preventive detention without trial of up to 2 years and any renewals thereof, instead of the Minister; and

(b) The amendment under s.19A(2) also provide for a right to apply for review to the High Court against the direction of the Board for preventive detention and any renewals thereof.

These safeguards are insufficient or illusory.

The Board has limited utility as it does not have power to inquire into or re-examine the accuracy, sufficiency and veracity of the findings of the Inquiry Officer and the grounds for the findings. The Inquiry Officer is appointed by the Minister and has sole conduct of any inquiries under the PCA. The Board is effectively bound by the findings and the grounds of the Inquiry Officer in exercising its discretion as to whether to release the suspect, or issue a supervision order or direct a preventive detention.

The idea for this Board is clearly borrowed from the Internal Security Act 1960 which had provided for an Advisory Board. History has shown us that this did not in any way prevent rampant abuse and unjustified detention without trial.

Although the amendments under s.19A(2) provide for a right of review by the High Court of any preventive detention orders or renewals of such detentions, the right of review is rendered illusory as the grounds or reasons for the Inquiry Officer’s findings and the Board’s decision are not provided to the suspected person, and the Inquiry Officer and the Board may refuse to provide any information and documents to the court and the suspected person on the basis that it would be against the public interest to do so.

The proposed s.7C(a)(i) of the PCA is alarming and abhorrent. It provides that a criterion which the Board shall apply in deciding to issue a preventive detention order is that the person has committed two or more serious offences, whether or not that person has been convicted of the offences, if the inquiry report finds sufficient evidence to support such finding.

This means that the Inquiry Officer has taken on the role not merely as an investigator or inquirer but that of prosecutor and judge. The Inquiry Officer would have found the suspect guilty of two or more serious criminal offences without charging the person and securing a conviction in court, and with the suspect having been denied legal representation in the course of the inquiry save when the suspect’s own evidence was taken. This is an unacceptable abrogation of due process and the supplanting of the judiciary.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak reject any attempt to resurrect preventive detention without trial, repeated renewals of such detention without trial, the ouster of the jurisdiction of the judiciary, denial of the rights of suspected persons to due process of the law, such as the right to legal representation and the right to be heard before any adverse decision or direction is made. The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak call upon the government to withdraw all proposed amendments of this nature, in particular, the proposed Part IVA of the PCA.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are of the view that the answer to the fight against crime cannot lie in re-introducing laws that diminish our adherence to the rule of law, due process and constitutional safeguards. The proposed draconian amendments are not a reflection of the state of crime in our country. Rather it speaks of the inadequacies and inability of the police to deal with crime in a proper way.

It is imperative that the government immediately implements the recommendation of the Royal Commission of Inquiry 2005 chaired by Tun Mohamed Dzaiddin Bin Hj Abdullah and establish the Independent Police Complaints and Misconduct Commission to redress standards of policing and restore public confidence in the police.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are extremely disappointed by the manner in which these proposed amendments are sought to be introduced. There was no prior notice or consultation on the numerous amendments to 11 legislations with far reaching consequences. These amendments must not be bulldozed through Parliament.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak call upon the government to withdraw all of the proposed amendments and to engage in genuine consultation with all interested stakeholders and parties. The proposed forum on 28 September 2013, which was originally intended to discuss the prevention of crime generally and which now belatedly appears to have been converted to a public feedback session on the proposed amendments to the PCA and the 10 other legislations, is rushed, contrived and insufficient.


27 September 2013

Christopher Leong
President
Malaysian Bar

Datuk GBB Nandy @ Gaanesh
President
Sabah Law Association

Khairil Azmi bin Mohd Hasbie
President
Advocates Association of Sarawak

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通告 Notification

人民之友 对我国下届大选意见书
(华 巫 英)3种语文已先后贴出

作为坚守“独立自主”和“与民同在”的立场的一个民间组织,人民之友在今年9月24日对即将来临的第14届全国大选投票,发表了一篇以华文书写的“意见书”,题为:投票支持"反对国家伊斯兰化的候选人": 反对巫统霸权统治!莫让马哈迪帮派"复辟"!

这篇意见书的英文译稿(标题是:Vote for “candidates who are against State Islamisation”: Oppose UMNO hegemonic rule! Prevent “the return to power of Mahathir’s faction”!)已于10月22日张贴在本部落格。马来文译稿(标题是:Undilah "calon yang membantah pengislaman negara": Menentang pemerintahan hegemoni UMNO! Mencegah puak Mahathir kembali kepada kuasa!)也已接着在11月13日在此贴出。

此外,人民之友也将通过电子邮件、微信、WhatsApp等方式,尽可能向全国各民族、各阶层、各行业、各宗教的团体和个人,传送我们的这份“意见书”供参考。我们欢迎跟我们对下届大选的立场和见解一致的团体和个人,将这份“意见书”传送到更多的人手中去!

我们希望,我们在意见书内所表达的对下届大选的立场和观点,能够准确而又广泛地传播到我国各民族、各阶层的人民群众中接受考验,并接受各党派在这次全国大选斗争和今后实践的检验。


Pandangan Sahabat Rakyat terhadap PRU akan datang telah diterbitkan dalam tiga bahasa (Melayu, Cina dan Inggeris)

Sebagai sebuah pertubuhan masyarakat yang berpendirian teguh tentang prinsip "bebas dan berautonomi" dan “sentiasa berdampingan dengan rakyat jelata”, Sahabat Rakyat telah menerbitkan kenyataan tentang pandangan kami terhadap Pilihan Raya Umum ke-14 yang bertajuk "Undilah calon yang menentang Pengislaman Negera: Menentang pemerintahan hegemoni UMNO! Jangan benarkan puak Mahathir kembali memerintah! " (投票支持"反对国家伊斯兰化的候选人": 反对巫统霸权统治!莫让马哈迪帮派"复辟"!)dalam Bahasa Cina pada 24hb September 2017.

Penterjemahan Bahasa Inggeris kenyataan tersebut yang bertajuk Vote for “candidates who are against State Islamisation”: Oppose UMNO hegemonic rule! Prevent “the return to power of Mahathir’s faction”! telah diterbitkan dalam blog kita pada 22hb Oktober 2017 manakala penterjemahan Bahasa Melayu telah diterbitkan pada 13hb November 2017.

Selain daripada itu, Sahabat Rakyat juga akan menyebarkan kenyataan ini seluas mungkin kepada pertubuhan dan individu semua bangsa, strata, profesyen dan agama seluruh Negara melalui email, wechat, whatsApp dan pelbagai saluran lain. Kami amat mengalu-alukan pertubuhan dan individu yang berpendirian dan pandangan sama dengan kami untuk turut menyebarkan kenyataan ini kepada lebih ramai orang!

Kami berharap pendirian dan pandangan kami berkenaan pilihan raya kali ini yang dinyatakan dalam kenyataan tersebut dapat disebarkan dengan tepat dan meluas untuk diuji dalam kalangan rakyat semua bangsa semua strata sosial melalui penglibatan mereka dalam amalan pelbagai parti politik dalam pertempuran pilihan raya umum kali ini mahupun amalan masa depan.


The Chinese, English and Malay renditions of Sahabat Rakyat’s opinions about next election have been published consecutively

As an NGO which upholds “independent and autonomous” position and "always be with the people" principle, on 24 September 2017, Sahabat Rakyat had released a Chinese-written statement of views with regard to the voting in the upcoming 14th General Election, entitled “Vote for candidates who are against State Islamisation: Oppose UMNO hegemonic rule! Prevent the return to power of Mahathir’s faction!” (投票支持"反对国家伊斯兰化的候选人": 反对巫统霸权统治!莫让马哈迪帮派"复辟"!)

The English rendition of this statement entitled "Vote for “candidates who are against State Islamisation”: Oppose UMNO hegemonic rule! Prevent “the return to power of Mahathir’s faction”!" and the Malay rendition entitled "Undilah "calon yang membantah pengislaman negara": Menentang pemerintahan hegemoni UMNO! Mencegah puak Mahathir kembali kepada kuasa!" had been released on 22 October and 13 November respectively.

Apart from that, Sahabat Rakyat will also make every effort to disseminate this statement as widely as possible to organizations and individuals of all ethnic groups, religions and all walks of life throughout the country via email, WeChat, WhatsApp and other channels. We welcome organizations and individuals with the same position and views to spread this statement to more people!

We hope that our position and views pertaining to the next General Election expressed in the statement will be accurately and widely disseminated and also examined by the popular masses of various ethnicity and social strata through their involvement in the struggle of the next General Election carried out by various political parties and their practices in all fields in future.

Malaysia Time (GMT+8)