Now and then preventive detention laws without charges and trials are hotly debated topics on the Malaysian political scene. In the past, detention laws like for example, the Internal Security Act, was successful in creating peace inMalaysia. Its use to detain suspicious persons involved in communist activities, terrorism or activities that create unrest in society in the 50s, 60s, and 70s did bring notable outcomes. Despite their usefulness in those eras, these laws are now a miscarriage of justice. As a matter of fact, there is no justice. Justice here is based on the knowledge of the Government’s insistence for its policy to be either successful and/or accepted. It’s also a slippery slope where policies are justified to prevent deliberations.
Last year, Najib’s Administration tabled a bill to reform the Internal Security Act. Despite many governmental agencies and laypersons view this as progress, its not. Basically, detention laws like the ISA do not require a formal criminal trial in Court. As long as the Government thinks that a citizen’s action or activity is subversive and/or a threat to national security, they can order that person be detained without a trial. The question here is do we need these laws today? The answer is simple… ABOLISH ALL DETENTION LAWS! The following are why such laws are no longer useful.
A. The simple fact is all democracies respect the rule of law
Detention laws are retaliatory in nature and de facto punishment without due process. It behaves like a bullet firing from a gun travelling at maximum velocity to its intending target incapacitating the individual to death or severe injuries. There is no space for arguments, conciliatory communication or counseling – these laws act as passive violence.
B. Detention is indefinite
It does not specify how long an individual is detained. Basically, if the Government feels that the individual is dangerous, the detention order is prolonged. Come to think about it – it’s actually a form of solitary confinement, well, psychologically, the detained person feels confined to an institution and perhaps had waived any release date from his inhibitions. Even a prisoner sentenced to death has prior knowledge of his or her end of days.
C. Cruel and unusual
Detentions in these centers are Spartan and basically they are penal coffins, especially when an individual is unable to secure a release date. Many citizens also do not have first hand knowledge as to the extent of these institutions for detention. Reports do not really discuss the conditions of these detention centers because they are to a certain extent classified. Albeit citizens do not have first hand knowledge of these institutions, there are irregular visits by officials to enhance the working order and image of these institutions run within the UN Standard Minimum Rules on the Treatment of Prisoners. C’mon, lets not kid ourselves, these institutions are basically illegal under UN Minimum Rules because they detain people without trials.
D. Unpredicted surge of overcrowding
If there is an en masse arrest of individuals under ISA or Emergency Ordinance, can all these arrested individuals be placed in these institutions? If everyone is jam packed or sardined into a containment facility, for an unspecified duration, this is overcrowding and situation in a packed/sardined prison cell can be treacherous – not forgetting hazards like spreading of contaminants, diseases or an outbreak of fire. Overcrowded institutionalized regimes easily lead to conflicts, fights and affrays.
E. Due process & the light of truth
Detaining an individual without trial is detrimental to the truth behind the detentions. NGOs and interested individuals can easily concoct conspiracy theories to unravel the incorrigible actions of the Government and most times this may lead to “suppression of freedoms” generalizations. Such suspicions will only seep deeper as more citizens are aware of “tactics” which may generally be deemed totalitarian. Nevertheless, having a trial whether its good or bad, a trial can still minute and record proceedings and that’s the prove of record, albeit controversial, is still evidentiary material. Unrecorded verbatims are merely hearsay.
F. Trials set precedent
Court cases once recorded are materials of reference and authorities will refer to purported cases and perhaps will not repeat mistakes again. Legal authorities can always infer of court cases to caution authorities on high handed tactics and techniques.
Here again, I urge that the Government should repeal all the detention laws. Reforming the ISA is a futile exercise.
Wassalam.
Cp4ab0lishm3nt's Blog 
New laws: Detention only after court has passed sentence
Sep 20, 11 11:21pm
The two new laws to replace the Internal Security Act (ISA) 1960 will not be used to detain those with a different political ideology.
Minister in the Prime Minister’s Department Mohamed Nazri Aziz said the two new acts would only be used to curb terrorism and religious extremism.
Besides that, those found guilty of offences under the two new acts would only be detained after being sentenced by the court, said Nazri who holds the Law and Parliament portfolios, after a dialogue with the Federation of Chinese Associations Malaysia (Hua Zong), in Kuala Lumpur today.
He was asked to comment on allegations by certain quarters that the two new laws to replace the ISA, would retain the ISA elements and used to oppress the detainees.
On the opposition’s demand for former ISA detainees be given compensation following the abolishment of the ISA, Nazri said it should not be made an issue as they were detained under a legitimate law at the time.
“It happened according to the law, (so there is) no need to apologise and pay compensation. Why do they want to make this an issue?” he added.
On Sept 15, Prime Minister Datuk Seri Najib Tun Razak in his special address in conjunction with Malaysia Day, announced that the ISA would be abolished and two suitable new laws introduced to replace it and aimed at preserving peace, prosperity, harmony and order in the country.
Najib said the two new laws would be formulated in the spirit and under the aegis of Article 149 of the Federal Constitution to prevent subversive activities, and organised and violent crimes.
– Bernama
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US ready to help with anti-terrorism law
Sep 19, 11 7:43pm
The United States is ready to share with Malaysia its experience in formulating anti-terrorism law, said its ambassador to Malaysia, Paul W. Jones.
He said his government was willing to assist Malaysia in formulating the law following the Malaysian government’s announcement that it was abolishing the Internal Security Act (ISA) 1960.
“Each country has a different approach in combating terrorism or terrrorist groups,” Jones said after paying a courtesy call on Perak Menteri Besar Zambry Abdul Kadir at his office in Ipoh today.
The ambassador said he heard that Malaysia’s Home Ministry would be looking to the UK and US anti-terrorism laws to replace the ISA, but the decision would be Malaysia’s.
Prime Minister Najib Abdul Razak in his Malaysia Day special address last week had said that the ISA would be revoked and two new laws introduced to prevent subversive activities, organised crime and violent crime.
Jones said when the anti-terrorism law was to tabled in the US, it was hotly debated and widely discussed as the public feared that civil liberties would be eroded with introduction of the law.
He said the whole world was now interested in the issue of civil liberties and at the same time, keen to curb terrorism which had been a challenge for many countries.
“But Malaysia has shown its commitment (to upholding civil liberties) by abolishing the ISA,” he added.
– Bernama / M’siaKini
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New Acts to balance liberties with public order: PM
Oct 3, 11 2:14pm
The two new Acts to replace the Internal Security Act will provide balance between promoting civil liberties and safeguarding public order.
Premier Najib Abdul Razak told the Dewan Rakyat today that the move would allow Malaysia to move towards a mature democracy.
“The government’s machinery firmly supports the government’s move to repeal the ISA and replace it with two new Acts that will take into account the need to provide a balance between (promoting) individual rights and civil liberties, and safeguarding public order,” he said in reply to a supplementary question from Alexander Nanta Linggi (BN-Kapit) during Question time, today.
Nanta had asked whether the government had any specific instrument or legislation to deal with problems previously dealt with under the ISA and whether the civil service was supportive of the move to repeal the security act.
To a supplementary question from Nurul Izzah Anwar (PKR-Lembah Pantai) whether the government was prepared to use the Emergency Revocation Bill prepared by the opposition pact, Najib said the opposition should not try to take credit from
the move.
“I hope the opposition will not try to take credit from this move. We’ve announced this since 2009. This (repeal of ISA) is not due to any demand by Pakatan Rakyat; it’s the BN’s own initiative,” he said.
The time frame for the new legislations would be announced later, the prime minister added: “There are matters to be addressed first, including formulating the two acts as well as consulting the parties representing the interest of the people.”
Crucial pillar
To another question by Nanta on the government’s strategies to unite the people, Najib said the 1Malaysia vision was the crucial pillar in the government’s effort to nurture unity.
He said the 1Malaysia vision was being inculcated in each and every initiative and programme of the government.
“To nurture unity, programmes to promote integration has been and will continue to be implemented, covering activities like sports, youth programmes and national service modules; and in universities, ethnic relations course is a must for all students,” he said.
The prime minister added that the Special Committee to Promote Inter-religious Understanding and Harmony has also been set up since early last year to provide avenue to discuss inter-religious issues through consultations, dialogues and initiatives to solve inter-religious issues and issues concerning followers of religions.
– Bernama / M’siakini
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ISA repeal delayed to consult stakeholders, say ministers
By Shannon Teoh
Malaysian INSIDER
KUALA LUMPUR, Oct 3 — The government said today that the Internal Security Act (ISA) can only be repealed in March as it needs to consult and engage with stakeholders to ensure “we get it right”.
The replacement of the ISA, which allows for preventive detention, with two new laws was the highlight of Datuk Seri Najib Razak’s Malaysia Day address in which he promised more freedom to the public.
But opposition lawmakers have called the delay in repealing the law, which it says Barisan Nasional (BN) abuses to silence dissent, a “cop out” as the prime minister is likely to call snap polls soon after Budget 2012 is passed.
“No, it’s a question of engagement and consultation. We want to get it right,” Home Minister Datuk Seri Hishammuddin Hussein (picture) told reporters when quizzed on the delay.
Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz also said that the new laws were now in the hands of the Attorney-General and the government would need to be cautious when repealing the ISA.
“If we have no new law, then we must immediately release terrorists currently detained under the ISA,” the de facto law minister told reporters in Parliament today.
When told that the Bar Council has said that no new laws were needed as Malaysia had other legislation to deal with terrorism, Nazri said “that is the Bar’s view and it is one which we will look at.”
Datuk Seri Najib Razak tabled in Parliament today the repeal of the Restricted Residence Act and the Banishment Act, as announced in his Malaysia Day address to kick off his reform package.
The repeal of the two laws is scheduled for debate on Wednesday.
However, the repeals of the ISA and three emergency declarations were not mentioned in Dewan Rakyat today.
These reforms appear to be key concessions by Najib to win back middle Malaysia before snap polls expected early next year.
His administration had come under heavy fire for its clampdown on the July 9 Bersih rally for free and fair elections.
Police had fired tear gas and water cannons to disperse tens of thousands of demonstrators in chaotic scenes which resulted in nearly 1,700 arrested, scores injured and the death of an ex-soldier.
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ISA repeal delayed to consult stakeholders, say ministers
The two new Acts to replace the Internal Security Act will provide balance between promoting civil liberties and safeguarding public order.
Premier Najib Abdul Razak told the Dewan Rakyat today that the move would allow Malaysia to move towards a mature democracy.
“The government’s machinery firmly supports the government’s move to repeal the ISA and replace it with two new Acts that will take into account the need to provide a balance between (promoting) individual rights and civil liberties, and safeguarding public order,” he said in reply to a supplementary question from Alexander Nanta Linggi (BN-Kapit) during Question time, today.
Nanta had asked whether the government had any specific instrument or legislation to deal with problems previously dealt with under the ISA and whether the civil service was supportive of the move to repeal the security act.
To a supplementary question from Nurul Izzah Anwar (PKR-Lembah Pantai) whether the government was prepared to use the Emergency Revocation Bill prepared by the opposition pact, Najib said the opposition should not try to take credit from
the move.
“I hope the opposition will not try to take credit from this move. We’ve announced this since 2009. This (repeal of ISA) is not due to any demand by Pakatan Rakyat; it’s the BN’s own initiative,” he said.
The time frame for the new legislations would be announced later, the prime minister added: “There are matters to be addressed first, including formulating the two acts as well as consulting the parties representing the interest of the people.”
Crucial pillar
To another question by Nanta on the government’s strategies to unite the people, Najib said the 1Malaysia vision was the crucial pillar in the government’s effort to nurture unity.
He said the 1Malaysia vision was being inculcated in each and every initiative and programme of the government.
“To nurture unity, programmes to promote integration has been and will continue to be implemented, covering activities like sports, youth programmes and national service modules; and in universities, ethnic relations course is a must for all students,” he said.
The prime minister added that the Special Committee to Promote Inter-religious Understanding and Harmony has also been set up since early last year to provide avenue to discuss inter-religious issues through consultations, dialogues and initiatives to solve inter-religious issues and issues concerning followers of religions.
– Bernama / M’siakini
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Nazri: ISA repeal delay to avoid security ‘gap’
By Hazlan Zakaria; M’siakini
Oct 3, 11; 2:02pm
The tabling of the Bill to repeal the Internal Security Act is being delayed to ensure the government retains its legal authority to continue holding detained terrorists, de facto Law Minister Mohd Nazri Abdul Aziz said.
“We don’t want to have to release terrorist prisoners being held under the ISA,” he told reporters in the Parliament lobby today.
He explained that both the repeal of the current law and introduction of the new laws should be done concurrently.
“There cannot be a gap between the repeal and the new laws,” Nazri said.
At the most, he said, the repeal of the ISA and passing of the two new laws must happen within 24 hours of each other.
Such a gap will take away the any legitimacy in holding those detained under the Act, Nazri added.
He said that the latest the ISA could be repealed was when the two laws to replace it were ready for tabling in March next year, during the next sitting of Parliament
Attorney-general working on the new laws
Pressed for further details, Nazri said that it was not his place to answer as those questions could only be answered by the attorney-general, who was overseeing the drafting of the ISA repeal Bill, as well as the two new draft laws.
Approached by reporters earlier, Home Minister Hishammuddin Hussein had a different explanation.
Hishammuddin explained that the delay was because both the Bill to repeal the ISA and the draft Bills for the two new laws to replace it were still in the process of being formulated.
The consultation process, he said, was still ongoing, hence the need for the extra time.
He also denied that Singapore’s ISA would be used as a model for the two new public order and national security laws.
Later, Bernama quoted Hishammuddin as saying the ISA could only be tabled in March next year as the government wanted to “get it right” with the two new laws for national security
He said the government wanted to ensure that the new laws were balanced with the need to ensure safety and unity f the people, and that all Malaysians were protected under the new laws.
“It is a question of engagement and consultations. We want to get it right. We want to make sure whatever amendment we plan is not just rhetoric,” he added.
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Suhakam to meet ‘upbeat’ AG over security laws
Aidila Razak; Oct 4, 11; 1:03pm; M’siakini
The Human Rights Commission (Suhakam) is to meet with the attorney-general today to discuss the new laws that will replace the Internal Security Act (ISA).
Announcing this, Suhakam chairperson Hasmy Agam (left in photo) said Abdul Gani Patail was “upbeat” about the meeting and had indicated that the commission’s earlier recommendations would be included.
“He said they are going even further than our recommendations made on the Act in 2003,” Hasmy told reporters.
“I would say he sounded upbeat … maybe he just wants to create a good ambience for discussion, but we are hopeful.”
The premier had, on Sept 15, announced that the ISA would be repealed. Reports since then have suggested that this could take place in March.
‘Do it before GE13’
Speaking to reporters at Suhakam’s headquarters in Kuala Lumpur, Hasmy said that all seven commissioners will be present at the meeting located at the Attorney-General’s office at 4pm.
Hasmy said Suhakam will not be making any public statements about the content of the meeting, and does not discount the possibility of several other meetings with the AG on the matter.
“We hope that all our recommendations are taken on board and the new laws will not be a case of putting old wine in new bottles,” he said.
The chairperson added that while Suhakam is willing to give the government space to prepare for the abolition of the Act, it is “ideal” if it can be done before the next general election.
Prime Minister Najib Abdul Razak can call for snap polls anytime between now and March 2012.
“We hope the abolition can be done expiditiously as the people have been waiting for this for a long time,” he said, while commending the premier for listening to the public.
EO implication
He said the commission also does not recommend that the new laws mirror Western security laws, as such law may also not be compliant to universal human rights standards.
“We recognise the need for a security law, but any new law must comply with the universal declaration of human rights, if not 100 percent but as much as possible,” he said.
The commission said it might also mull legal implications of lifting the proclamation of Emergency, which Najib also announced on September 15, with the AG.
In particular, the commission is concerned about its impact on the Emergency Ordinance 1969 which also allows for detention without trial for up to two yearsr.
“It could be part of the discussion as it relates to the security laws,” he said, noting that the invitation yesterday was specifically on the matter of the Internal Security Act.
Suhakam had in 2003 drafted amendments to the Act as recommendation to the goernment which had then announced its intention to review the law which allows for detention without trial.
The commission mooted the following:
The police may only detain for the purpose of investigation on the basis that there are reasonable grounds to believe that the person in question has committed, abetted, conspired or attempted to commit one or more designated offences stipulated in the new law.
The detention period for investigation should not be more than 24 hours.
If after 24 hours it is found that more time is required for investigation, the police obtain an order from a High Court judge, and not a magistrate.
The High Court may provide an order of further detention of up to seven days, provided that the total maximum detention period without trial is 29 days.
This judge must decide on the detention period upon perusal of the police investigation diary, similar to section 119 of the Criminal Procedure Code.
Upon expiration of the 29 days in total from date of arrest, the police must either release or charge the detainee for one of the offences designated under the new law.
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More contentious laws to come under review
12:11PM Oct 6 ; M’siakini
All contentious laws, including the University and University Colleges Act 1971 (UUCA), Printing Presses and Publications Act 1984 (PPPA), Communications and Multimedia Act 1998 (CMA), Sedition Act 1948, Defamation Act 1957 and the death penalty are to be reviewed by the Attorney-General’s Chambers.
At a press conference after delivering a paper at the Law Faculty of UiTM yesterday, attorney-general Abdul Gani Patail said the law reforms would not stop after the abolition of Internal Security Act (ISA), which is scheduled to be repealed in March.
Chinese newspaper Sin Chew Daily today quoted Gani as saying that his office planned to review these laws from April, as part of the government’s law reform roadmap.
However, the chambers has no intention to amend the constitution, as it would be an extraordinary move.
“Compared with constitutional amendments, I prefer to amend the laws because constitutional amendment requires careful handling,” the daily quoted him as saying.
During his speech on the eve of Malaysia Day, Prime Minister Najib Abdul Razak announced several law reforms, including the repeal of the ISA, Restricted Residence Act (RRA) and Banishment Act, as well as amendments to Section 27 of the Police Act and the PPPA.
Although the announcement, seen as a move to create a momentum to favour the BN in the next general election, received thumbs up from the public, Najib was urged to extend the reforms to other archaic laws as well, such as Sedition Act.
The Youth wings of both Umno and MCA have urged the government to review the UUCA, which prohibits university students from taking part in political parties.
Also reporting from the UiTM event, national news agency Bernama quoted Gani as calling on the people to give the AG’s Chambers a chance to prove itself on the two new legislation to replace the ISA, which he said would stress on the fundamental rights of the people and national security.
One of the new laws would address criminals while the other would target on terrorism and subversive movements, he said.
His office, Gani added, had set up a committee comprising three former chief justices and two lawyers with vast knowledge, and who have worked on these issues, to look into the two new replacement laws.
Foreign law experts to be consulted
The committee was also studying legislation in developed Commonwealth member countries and European countries, such as Denmark, to formulate the new law, he said.
The AG’s Chambers would also consult legal experts from the United States who drafted the Patriot Act and lawyers who were practising in the area, besides Queen’s Counsel from the United Kingdom.
Apart from the international perspective, he said, the committee would also take into account local views from the Human Rights Commission of Malaysia (Suhakam) and government enforcement agencies, including the police, when drafting the new preventive laws.
The new laws should protect the fundamental rights of not only Malaysian citizens but also the rights of government enforcement agencies overseeing national security.
The other challenge was how to make the law crystal clear and easily understood, both by Malaysian citizens and the government agencies, he said.
“Even to get a suitable definition of terrorism and ‘public place’ will be a tough job, but it must be addressed to make the law crystal clear for everybody,” Gani added
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Law to replace ISA tabled in Parliament today
S Pathmawathy | 11:07AM Apr 10, 2012
A new preventive detention law was tabled in Parliament today to replace the draconian Internal Security Act (ISA) 1960, with indefinite detention replaced with a maximum 28-day detention period.
The Security Offences (Special Measures) Bill, meant to address long-held criticism over the 52-year-old ISA, was tabled by Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz for first reading today and slotted for debates next week.
Major points against the ISA are that it allows arbitrary arrest and indefinite detention.
The Bill seeks to provide special measures relating to security offences for the purpose of maintaining public order and security specifically to tackle threats by a person or a substantial body.
The threat highlighted in the Bill are as follows:
1) To cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;
2) To excite disaffection against the Yang di-Pertuan Agong;
3) Which is prejudicial to public order in, or the security of, the federation or any part thereof; or
4) To procure the alteration, otherwise than by lawful means, of anything established by law.
The Bill also states that no individuals can be arrested and detained solely for his political belief or political activity, in contrast to the ISA which was used extensively in 1987 to quell and arrest prominent opposition leaders.
Under the new law, a police officer is still given the rights to arrest and detain any persons, without warrant, if there is reason to believe the individual has been involved in security offences.
However, the individual arrested has to be informed of the grounds of the arrest by the police officer soon after.
The person arrested may be detained for a period of 24 hours for the purpose of investigations, but the detention period may be extended for a period of not more than 28 days, by a police offer of/or above the rank of superintendent of police.
Nevertheless, if the police officer finds that no further detention is necessary but the individual still needs to assist investigations, upon submitting a report to the public prosecutor, an application may be made to the Sessions Court to allow for an electronic monitoring device to be attached to the individual, for up to 21 days.
Investigation officers are required to submit their investigation papers to the public prosecutor a week before the detention period expires.
The Bill will affect one’s rights enshrined under Article 5 and Article 9 of the federal constitution which ensure personal liberty and freedom of movement, as well as Section 117 of the Criminal Procedure Code (CPC).
The ISA was mooted during the administration of prime minister Tunku Abdul Rahman, who said then that it was meant primarily to target the communist insurgency of the period.
Prime Minister Najib Abdul Razak, in announcing the abolition during his speech on the eve of Malaysia Day last Sept 15, said this would pave the way for greater civil liberties and democratic reforms.
The anti-ISA coalition Gerakan Mansuhkan ISA (GMI) led a march to Parliament yesterday complaining of the government’s silence over the repeal of the ISA and that no public consultation on the new laws has been conducted.
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Some provisions in Security Offences Bill need review
Lim Chee Wee
7:03PM Apr 10, 2012
COMMENT The Malaysian Bar commends the honourable prime minister for fulfilling the promise he made on 15 September 2011 to abolish the Internal Security Act 1960 (ISA).
Since its enactment more than fifty-one years ago, this piece of oppressive legislation enabling preventive detention without trial, has been extensively condemned for being a gross violation of human rights, and for the cruel and indiscriminate abuse resulting from its use.
The Malaysian Bar is fully supportive of the government’s aim to combat terrorism, which represents an extraordinary threat to international and domestic peace and security. The government’s counter-terrorism policy and actions must strike a delicate balance between collective security and individual liberties, and be consistent with the rule of law.
In its Memorandum dated 19 July 2010 (“Memorandum”)[i], the Malaysian Bar expressed its view that there is adequate legislation to combat terrorism and, where necessary, the existing legislation could be strengthened alongside improved safeguards and oversight mechanisms.
Nonetheless, the Bar acknowledges that the replacement legislation – the Security Offences (Special Measures) Bill 2012 (“Bill”) – and the amendments to the Penal Code, Evidence Act 1950 and Criminal Procedure Code (“Amendments”) allow for the right to trial, and contain some provisions found in the laws of other jurisdictions [ii].
Furthermore, the maximum period of detention of twenty-eight days, after the arrest and detention period of twenty-four hours, is consistent with the Bar’s position in its Memorandum.
The Bar Council was invited by the honourable Attorney General to provide its comments – although within a short period of time prior to this legislation being tabled in Parliament – and two meetings were held to discuss the Bill.
We welcome the open-minded and frank dialogue with the Attorney General’s Chambers, and note that some of our suggestions were accepted.
Whilst we appreciate the government’s desire for quick action and the hard work of the Attorney General’s Chambers in its study, and drafting, of the Bill and the Amendments, we urge that in future the consultation process be more extensive, and more time be provided for it.
The Bill vests extraordinary and wide-ranging powers in the government. The Bar expresses its concerns regarding, inter alia, the following issues [iii], which deserve further study and debate.
(a) Preamble – the validity of the Bill is not dependent on the invocation of Article 149 so long as it contains safeguards consistent with fundamental liberties.
(b) Section 3 (Interpretation) – the definition of “security offences” includes an act that is prejudicial to national security or public safety. [iv]
Such a definition is too wide. Instead, a more precise, and better, definition can be found in the United Nations Convention for the Suppression of the Financing of Terrorism:
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing an act.
(c) Section 4 (Power of arrest and detention) – the extension of the period of detention for a duration of not more than twenty-eight days should be subject to judicial oversight, instead of by way of decision of a police officer of or above the rank of superintendent.
(d) Section 6 (Power to intercept communication) – this power should be exercised by a judge, and solicitor-client communications must be protected.
(e) Parts IV (Special Procedures Relating to Sensitive Information) and VII (Evidence) – it is here that the Malaysian Bar has its greatest concerns, and where there are radical departures from the current rules of evidence. The use of a summary of the evidence (as opposed to the evidence itself) and the lowering of the admissibility threshold will pose a serious impediment to a fair trial.
In particular, the radical departure from the ordinary rules of evidence may negatively impact on the accused’s right to a fair trial. Counter-terrorism laws, policies and decisions must not usurp the very rights and freedoms that the terrorists themselves are threating.
We appreciate the assurance of the Attorney General that there will be continuous study and review of the Bill and the Amendments, and that the Malaysian Bar’s contribution will be welcomed.
Apart from the ISA, the other legislation that now remains for the Honourable Prime Minister to consider amending – to rid our statute books of all arbitrary detention laws – are the Dangerous Drugs (Special Preventive Measures) Act 1985 and Prevention of Crime Act 1959, on the assumption that there will be no re-introduction of the Emergency (Public Order and Prevention of Crime) Ordinance 1969.
The Malaysian Bar encourages and supports the prime minister to continue on a path of law reform that is consonant with international human rights norms.
[i]The Memorandum is accessible here.
[ii] One example is the Canadian Anti-Terrorism Act Bill C-36.
[iii] The Bar would require some time to prepare and submit a memorandum to address more comprehensively the issues raised by the Bill and Amendments.
[iv] The First Schedule of the Bill refers to Chapters VI and VIA of the Penal Code, where section 130B(2) defines “terrorist act”.
Lim Chee Wee is president of the Malaysian Bar.
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Changes to Penal Code to complement new security Bill
S Pathmawathy | 12:50PM Apr 11, 2012
The Penal Code will be amended to include punishment for crimes against the state in order to support the new Security Offences (Special Measures) 2012 Bill.
The government wants to introduce 13 provisions in the Penal Code, from Sections 124B to 124N, seven of which are new, to deal with offences that will be repealed when the Internal Security Act (ISA) 1960 is de-gazetted.
Some notable modifications are the inclusion of activities detrimental to parliamentary democracy, the dissemination of information, sabotage and espionage.
Section 124B, or activity detrimental to parliamentary democracy, which is defined as any action designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means, is punishable by imprisonment up to 20 years, while for any attempt to commit the same crime, an individual can be punished by a prison term of up to 15 years.
Similarly, anyone who prints or sells any document or publication that incites people to go against parliamentary democracy will also be sentenced to imprisonment up to 15 years.
Persons guilty of posting placards, circulars or documents with incitement to violence, or counselling violent disobedience to the law or to any lawful order, or likely to lead to disruption of peace, can be punished up to five years in prison.
Sections 124D and 125D of the Bill states that anyone who prints, publicises, sells, issues, circulates, reproduces or possesses any document or publication detrimental to parliamentary democracy, can be imprisoned for a term that may extend to 15 years.
A five-year prison term applies, under Section 124H and Section 124I, to anyone who incites violence or disobedience to laws of the country through publication or on electronic media; and for anyone who disseminates false information, be it via publication or by electronic means.
Individuals who by any means, directly or indirectly, commit espionage or sabotage can be punished with imprisonment for life under Section 124N, while attempts to commit espionage or sabotage are punishable with a jail sentence of up to 15 years.
The Bill specifies espionage as involving activities to obtain sensitive information by ulterior or illegal means for a purpose prejudicial to the national security or interest.
Offences involving sabotage include an act or omission intending to cause harm for the interests of foreign powers or knowingly producing defective materials used for national defence.
Those found to be members of a terrorist group can be jailed for life under the Bill.
More powers for the police
Modifications are also to be made to two other laws – the Criminal Procedure Code (CPC) and Evidence Act – to correspond with the Security Offences (Special Measures) Bill.
Amendments to the CPC, which include three new sections to enhance the investigative powers of the police, were also tabled.
The amendments are to empower police officers ranked inspector and above to conduct searches and seizures without a warrant and allow them to have access to computer data and intercept communications.
The Bill will also have a new section to allow police to attach an electronic monitoring device on an accused when the accused is released on bail, as replacement for payment of a bond.
Amendments to the Evidence Act 1950 aim to streamline the definition of a computer in the Computer Crimes Act 1997.
Section 114A, is introduced into the amendments, “to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the Internet”.
The clause states that a person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or republished the contents of the publication unless the contrary is proved.
The Bills tabled for first reading by Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz yesterday are scheduled to be debated next week.
Asked to clarify on the specifics of what will constitute offences to parliamentary democracy, Nazri said: “We can’t restrict the offences committed as they are wide ranging. Therefore, it’s for the courts to interpret and decide.”
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Security Offence Bill ‘repressive’, PKR veep
4:37PM Apr 11, 2012
The Security Offences (Special Measures) Bill 2012 is “repressive” and “a danger to fundamental liberties”, warned PKR vice-president N Surendran.
Surendran, a legal practitioner, argued that this was because the Bill was based Article 149 of the Federal Constitution, which he deemed obsolete.
Article 149 relates to legislations against “subversion, action prejudicial to public order”.
“We are appalled that the Bill is created under the provisions of the draconian Article 149 of the constitution.
“Article 149 is oppressive, unjust and no longer necessary in modern Malaysia; it should have been repealed along with the Internal Security Act (ISA) 1960,” said Surendran.
Open to abuse
On the 28 day detention period allowed under the Bill, Surendran argued that this can give rise to arbitrary detention which is against the rule of law.
He said the 28 day detention period could not be challenged in court and this can be abused by the authorities to detain anyone who opposed them, including rally participants, supporters and political leaders.
“The extraordinary powers provided for under the Bill are unnecessary and harsh. There are existing criminal laws under Chapter 6A of the Penal Code that are adequate to deal with the threat of terrorism.
“The proviso that no one shall be detained for political reasons is no comfort to the rakyat, as the power to detain remains with the police,” he said in a statement today.
The new Bill is slated to replace the ISA – a notorious law that has been used against dissidents in the past – and is focussed on combatting terrorism.
Going back to outdated practices
Meanwhile, Puchong MP Gobind Singh Deo warned that the new law provides no legal safeguards against possible mental or physical abuse for those detained during those 28 days, since it cannot be challenged in court.
Gobind, who heads DAP’s legal bureau, also said the Bill intends to reintroduce the “concept of confession”, which has been done away with in most criminal proceedings because confessions can be extracted under duress.
“So, to revert back to an outdated practice would be highly questionable, especially where there will be no access to court during the first 28 days of detention during which time severe pressure would be brought to bear upon a suspect.
“What we have is essentially a trade-off. Take away ministerial power to detain without trial for two years and introduce new rules making it easier to secure convictions for offences carrying the heaviest of penalties.
“Whilst I must make it clear that we in the DAP support all efforts to preserve the safety of our nation, including efforts to combat terrorism, we must ensure that all laws enacted for such purposes are not in themselves arbitrary or oppressive and meet with all those legal standards which apply, so as to be effective ultimately,” he said.
Anwar: More laws need to go
Meanwhile, PKR de facto leader Anwar Ibrahim said that the Najib administration must abolish other repressive laws such as the Printing Presses and Publications Act 1984, laws restricting unions and laws which curb freedom of assembly.
“I repeat, Najib must seek to end all repressive laws, and with no reservations immediately,” said Anwar in statement today.
He noted that the repeal of the ISA, which will be completed once the Security Offences (Special Measures) 2012 Bill is gazetted, has long been championed by civil society movements and the Pakatan Rakyat.
“We celebrate this move, to end a history of detaining people for their political beliefs. I have been, as many of my colleagues in PKR and Pakatan Rakyat, detained under the ISA.
“It must not be forgotten that Malaysia’s civil society, led by movements like GMI (Abolish ISA Movement) and Suara Rakyat Malaysia (Suaram), have long opposed the ISA.
“The damage it has done over the decades to thousands of Malaysians and their families will remain a scar. The world should not forget the lives ISA has ruined,” said Anwar.
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New security law ‘open to more abuses’
1:44PM Apr 11, 2012
International human rights group Human Rights Watch (HRW) has warned that the newly tabled security law to replace the draconian Internal Security Act (ISA) will open up the floodgates to more abuses.
The Security Offences (Special Measures) 2012 Bill that was tabled in the Dewan Rakyat yesterday, it said, threaten the fundamental liberties of Malaysians because the enforcers of the law would be accorded with too much power.
“The Malaysian government is putting to rest the long-derided ISA, but it is also setting the stage for future abuses,” HRW Asia deputy director Phil Robertson (right) said yesterday.
While HRW recognises the reduced arbitrary detention period from 60 days to 28 and the assurance that no individual will prosecuted for political belief as “significant improvements”, Robertson added: “… the authorities still hold too much power to detain people on broad grounds, for too long and without judicial oversight.
“Provisions of the Bill will facilitate violations of fundamental human rights (as) permitting detention for 28 days without being brought before a judge violates international standards for prompt judicial review.”
Robertson pointed out that the legislation will allow police to delay legal access for a person arrested for up to 48 hours “which encourages abusive interrogations”.
The Bill, he said, defines “political activity” too narrowly, leaving room for arrests for other forms of peaceful political activity.
Provisions vaguely defined
Other grievances raised are the powers to arrest without warrant on “reasonable grounds” that an individual is involved in security offences, which he criticised as “vaguely defined”.
“This will give the police broad powers to conduct searches and intercept communications without judicial warrant. And it will permit the police to unilaterally impose electronic monitoring devices on individuals released from detention, a serious infringement of personal liberty.
“There are not nearly enough civil liberty protections written into this law,” Robertson said.
The flaws in the Bill would also result in grave infringements of basic human rights, considering the blanket provision to deny bail.
Apart from that, the proposed Malaysian law was also criticised for giving police power to intercept communication and information.
“The law will permit a court to order the continued detention of an acquitted defendant pending the exhaustion of all prosecution appeals, thus allowing the authorities to keep a person who has been found not guilty behind bars for years.
“The Security Offences (Special Measures) Bill sets the stage for trials with secret witnesses, unlawfully obtained evidence, and continued detention of those found not guilty.
“The government should go back to the drawing board and draft a law with inputs from civil society that will ensure the protection of basic rights,” Robertson added.
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ISA elements ‘smuggled’ into Penal Code
1:21PM Apr 12, 2012
Bukit Bendera MP Liew Chin Tong is concerned that the amendments to the Penal Code, which were tabled in Parliament on Tuesday, are similar to what is already in the Internal Security Act (ISA).
Liew (left), who is from the DAP, said in a statement today that portions of the ISA have been ‘smuggled into the Penal Code’, for instance:
* The words “counsels violent disobedience to the law or any lawful order” in the new Section 124H of the Penal Code are hauntingly similar to the definition of “subversive document” in Section 29 (3)(b) of the ISA; and
* The mention of the terms “counselling disobedience to the law thereof or to any lawful order therein” are chillingly reminiscent of the definition of “terrorist” in Section 2 of the ISA.
“Public confidence in the government is shaken when oppressive laws are repealed with much fanfare only to be replaced with equally – if not more – abhorrent legislation that offends the spirit of legal reform,” Liew added.
The ISA is slated to be replaced with the Security Offences (Special Measures) Bill 2012 (SOSM), which was tabled in Parliament on Tuesday.
Liew also highlighted other amendments made to the Penal Code, Evidence Act and Criminal Procedure Code, saying they “vest an unholy axis of power in government that will only lead to a ticking time bomb for all freedom-loving Malaysians”.
Offences ‘filmsily defined’
He cited the new Section 124B of the Penal Code which creates an offence known as “activity detrimental to parliamentary democracy” punishable by 20 years’ imprisonment.
This offence is flimsily defined as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.
Further, he said, under Section 124C, an attempt to commit an “activity detrimental to parliamentary democracy” is punishable by 15 years’ imprisonment.
He characterised the amendments as raising concerns over its abuse, when only an attempt at the crimes specified could be met with such heavy punishment.
Liew also raised the threat posed to freedom of information and the media by the amendments, citing the criminalisation of the printing, selling, possessing or importing of “documents and publications detrimental to parliamentary democracy”.
He criticised the definition of “sensitive information” which encompasses any document, information or material “whether or not it is classified as Top Secret, Secret, Confidential or Restricted”, as disturbing.
The vague definition and high penalty of up to 15 years’ imprisonment for printing makes the law open to abuse by the government, he said.
These amendments, Liew added, should be read together with Part IV of the new Security Offences (Special Measures) Bill 2012, which provides for in-camera hearing in a trial involving sensitive information.
Under Section 8(8) of this Bill, decisions of the court under these procedures are non-appealable.
“This would allow the government to keep sensitive information out of the public eye, not even accessible to the media,” he stressed, adding that the BN government has no intention of real change.
The government introduced these amendments to the Penal Code as a complement to the new Security Offences law it wants to implement, which will be one of two new laws to replace the ISA.
The other new law is yet to be revealed.
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The Sword of Damocles remains
Kim Quek
3:14PM Apr 12, 2012
COMMENT Many Malaysians may be pleased with the move to remove the much condemned Internal Security Act (ISA), but the sword of Damocles that hangs over the heads of opponents of the ruling Barisan Nasional stays intact.
This is due to the embedding of two key elements into the newly introduced Security Offences (Special Measures) Bill that are to allow arbitrary detention for many years.
These elements are the broad and vague definition of offences that fall under this Bill, and the loophole that will allow prolonged and lengthy detention through exploitation of the judicial process.
How security offences are to be defined
Among the broad range of vague offences included under this Bill are threats to public order or security and disaffection with the Yang di-Pertuan Agong.
That the vague ground of “prejudicial to public order or security” has been consistently and widely abused under ISA detentions in the past is evident from the fact that, except for a few genuine cases, all the more than 10,000 individuals so detained are political dissidents, whose only “guilt” is their opposition to BN.
Prominent among them are Anwar Ibrahim, Lim Kit Siang, Mat Sabu and Lim Guan Eng, just to mention a few. Who in their right mind would imagine that these leaders of outstanding integrity and steadfast principles would have done anything that would undermine the security of the nation?
As for the offence against the Agong, isn’t it still fresh in our mind that in the run-up to the Bersih 2.0 rally last year, the authorities detained six members of Parti Sosialis Malaysia for “waging war against the Agong”? That this is a concocted charge is self-evident when not an iota of evidence has been produced, to date, to substantiate the accusation against the ‘PSM6′.
If BN has thought fit to freely abuse these grounds of detention in the past when its political power had always been secure, why should we assume it will not do so now, when its very political survival is hanging on a thread due to the vibrant rise of Pakatan Rakyat and widespread public disillusionment over BN’s endless mega misdeeds and ineptitude?
Prolong detention, but only through the courts
Though the new Bill provides for the right of the detainee seek trial within the first 28 days of detention, he or she may not see freedom for many years to come.
This is because of Section 30(1), which states that even if the detainee is acquitted by the court, his or her detention may continue uninterrupted, as the prosecutor is entitled to orally apply for appeal and ask for the detention to continue until all legal processes are exhausted.
Experience in the past tells us that if it so pleases BN, this legal process can take many years.
One example is Anwar Ibrahim’s Sodomy I trial, which started in 1999 and ended five years later in 2004, and even that duration was considered shortened, thanks to the resignation of former prime minister Dr Mahathir Mohamad’s resignation in 2003.
This is evident from the fact that the sodomy trial took four years to move from the High Court to the Court of Appeal, but took just a year for the Court of Appeal to be heard by the Federal Court, where Anwar’s guilty verdict was overturned in 2004. This was when Abdullah Ahmad Badawi had become prime minister, in November 2003.
A more recent example is the murder trial of Mongolian translator Altantuya Shaariibuu, which Premier Najib Razak is said to be entangled in.
The trial started in January 2007, but the appeal of the two police officers, who had been body guards to Najib, who was then deputy prime minister and defence minister, have not, despite five years having passed since their appeals to the Court of Appeal.
And, it looks set to be further delayed until after the next general election. Obviously, someone up there does not want it to be heard so soon for obvious reason.
There is not the slightest doubt that our judiciary, along with all other state institutions, are subject to illegitimate political manipulation.
With that in mind, how can we not be worried that any of BN’s opponents may be arbitrarily arrested under a pseudo crime specified in the new Security Offences (Special Measures) Bill and kept in prison indefinitely while the legal process goes on endlessly?
No justification for new Securities Bill
The point is that the premise upon which the Bill is built, as cited in the preamble that “the security of the country is under threat”, is false. Hence there is no justification to introduce this Bill after the ISA is repealed.
To justify the new Security Offences Bill, the BN has to satisfactorily explain precisely the threats that the nation has been facing.
It is common knowledge that we have not been threatened, nor do we foresee threats from any foreign country, not even in the remote future.
Neither is there the slightest evidence of any internal plot from any quarter to overthrow the government by force or to inflict mass violence.
The only possible threat that may justify the introduction of preventive law is international terrorism, for which we must have a precise definition for “terrorism” – unlike the wide ranging and non-defined offences included in the Bill – so as to eliminate abuse of this new law.
For such guidance, we can look to the existing convention of the United Nations, which is in tune with universally-accepted values.
As for all other offences – even those arising from racial and religious frictions – we have ample existing laws to deal effectively with them.
What we now lack are not good laws but good implementation, and with integrity.
In conclusion, this latest legislative initiative hyped by Najib as “heralding a golden democratic age in Malaysia” in his speech during the installation of the Yang di-Pertuan Agong yesterday, is but another gimmick to woo the middle ground ahead of the general election without actually reforming BN’s repressive powers.
KIM QUEK is a retired accountant and author of the banned book ‘The March to Putrajaya’.
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Fear that Security Offences Bill be used for political ends
Mister Cool
5:42PM Apr 12, 2012
As a Malaysian, my first response to the new Security Offences Bill which is replacing the ISA is “No thanks”.
The issue that concerns me is not the length of detention – 28 days – but rather the vagueness of the situations where the law can be applied.
I support anti-terrorism legislation provided it is used for one thing and one thing only, which is terrorism.
Terrorism is the use of arms (guns and bombs) to achieve a political objective.
Terrorism endangers the lives and physical being of people.
The use of the Security Offences Bill for reasons other than militancy is simply not accepted.
Detention without trial should not be used in situations that are “prejudicial to public order” because this will mean that people who participate in public demonstrations and protests can be charged.
All public gatherings which involve large numbers of people will always be “prejudicial to public order” because it involves the issue of crowd control and traffic congestion.
So this phrase “prejudicial to public order” is a vague term that can be applied from anything such as critical writing, books, magazines, meetings, discussions, phone messaging, Facebook postings, internet blogs, street demonstrations, protests and the carrying of banners and even matters of religion.
Thus if a Muslim man were to write in his blog that he is a practicing homosexual and believes homosexuality is not forbidden in Islam, his opinion can also be considered as “prejudicial to public order” and he can be detained for up to 28 days.
In order words, the Security Offences Bill will hardly ever be used for terrorism related matters but more routinely against people who have strong opinions and are willing to voice these opinions in public.
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Repeal of ISA a hollow victory
T Vicknaraj
4:56PM Apr 12, 2012
The ambiance in Malaysia in April 2012 is both celebratory and festive due to the recent policy changes pertaining to Malaysian’s civil and political rights; and yet there is a strong sense of scepticism and mistrust at the ground level among the civil society movements, opposition politicians and the general population.
The general population’s feeling denotes a strong awareness that that this year possesses a crucial landmark in our nation’s history, as the concepts of participatory and parliamentary democracy are being negotiated and boundaries of civil and political rights are being rebranded, redesigned and rehashed in light of the impending general elections rumoured to be held in June 2012.
The stakeholders who are active in this negotiation for democracy are the political parties from both side of the divide, the ever growing civil society movements like Bersih, NGOs and the young adult population (gen X and Y), all of whom have a crucial say on how this political drama unfolds.
This mixed feelings and confused euphoria is justified.
The Malaysian federal government under the leadership of Premier Najib Abdul Razak, has been in the forefront of bringing about certain positive changes which caused some initial euphoria.These include;
1. The affirmation and acceptance of the resignation of a minister whose reputation had been tarnished by a billion dollar ringgit feedlot scandal;
2. The support for certain reforms in electoral laws and policy via the Parliamentary Select Committee findings (most of which were initially mooted by the Bersih 2.0 movement which was initially deemed illegal by the federal government in 2011)
3. The recognition and legitimising of the Bersih 3.0 rally on April 28th; and
4. The repealing of the infamous Internal Security Act which legitimised detention without trial of suspects.
However it is no surprise that this noble move and message from the federal government that it seemingly has adopted tolerance for open and sincere debate is questioned by the masses who view new found democratic faith with scepticism and mistrust.
The reason for this negative perception is clear, this is because the proposed legislative reforms introduces new draconian offences which are laden with uncertainty, it is also introduced new concepts without much debate, laden with preconditions and more importantly it has not shifted or enlarged the notion and the concepts of parliamentary / democratic participation as it were before.
Simply put, the current position is very draconian and is targeted to regulate and curtail the use of the internet and social-media participation in advancing participation in democracy and calling for accountability of governance.
‘The Devil lies in the details’ and with social media, a rampant cyber-democracy and informed voters these details are being elucidated and discussed in the Internet and social media notwithstanding the ‘blackout’ from government controlled mainstream media.
One of the main critiques lies with the repealing of the Internal Security Act and the introduction of the proposed Security Offences bill 2012 and the Amendments of the Criminal Procedure Code and the Penal Code, which allows for a whole new array of offences relating to political activities that affect the concept ‘of parliamentary democracy’.
Sadly this concept is not clearly defined. The unintended consequence of these proposed reforms also seems to curtail and censor the use of a free and uncensored internet, which reneges from a promise and guarantee made by the government in the 1990s to ensure the unfettered use of an uncensored internet.
It is also rather disappointing to note that notwithstanding that the building blocks of a healthy, vibrant and modern democracy is built on freedom of speech, expression and association, the proposed legislation seem to curtail these very rights that are needed for a healthy democracy.
A cumulative reading of these bills indicates that the government has no serious interest in facilitating open debate especially since there is no accountability in the bodies empowered to administer and enforce these legislation.
Also, the bill strengthens and empower authorities to legitimately snoop in cyber-space targeted at social media which are the key tools used by the civil society movements to engage and debate about the future of democracy in Malaysia.
Perhaps this is not the intent of our policy makers, or perhaps due to poor communication; the government’s noble and good intentions have gone unnoticed and misconstrued.
But as the saying goes; ‘the road to hell is paved with good intentions’. Therefore it is suggested that clarity is the only solution for this dilemma.
While it is understood that that a variety of factors that need to be taken in to consideration in safeguarding our democracy, that no freedom is absolute and that every citizens has a duty to exercise their rights within the law or social norms, it is noted that there is an equally important and trite concept that regulations and policy introduced by the executive that impede, curtail and regulate fundamental freedoms of expression, speech and association of citizens needs to be crystal clear, applied with careful considerations of judicial overview and strict adherence to evidential procedure and respect of court rules and norms.
This core respect of the use of executive power and its limits on the citizens needs to be ‘jealously guarded’preserved and maintained, no matter what the cost.
The reason for this absolutism is crucial because, if we as a society allow such changes and reform to go unchecked; our society’s adherence and respect of an accountable and responsible government and respect to the rule of law is at risked of being dissipated.
For the sake of our nation, it is suggested and reiterated tihat the politicians and policy makers from both side of the political divide restudy and debate these proposed legislations wth candour and care, minus the unnecessary politicking and also take in to account the public comments rather than hastily pass the legislation through parliament.
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Protecting security, safeguarding liberties
By Mohamed Jawhar Hassan
14 April 2012
Moving with the times on protecting security and safeguarding liberties, Legislative reforms signal a radical change in the approach towards managing security, writes Mohamed Jawhar Hassan
A law to facilitate and regulate peaceful assembly has been enacted and university students will be allowed to be members of political parties.
A PIECE of history will be made when, as widely expected, the Internal Security Act 1960 (ISA) is repealed and the Security Offences (Special Measures) Bill 2012 is passed by Parliament after its tabling by the government on Tuesday.
While still remaining vigilant against grave security threats, the nation will move with the times in terms of the standards of law enforcement and the protection of civil liberties.
In some respects the standards applied in the country will be even more compliant with human rights and human dignity than some of the security laws that have been introduced by Western democracies in the wake of the Sept 11, 2001 terrorist attacks.
The legislative reforms to provide for greater civil liberties (while retaining the essentials for protecting national security and preserving public order) have been comprehensive under the Najib administration. They are also an integral part of the prime minister’s wide-ranging political transformation programme.
Besides the bill now in Parliament, three Emergency Proclamations were lifted on Malaysia Day last year. Along with that, the Restricted Residence Act 1933, the Banishment Ordinance 1959 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 were repealed.
The Printing Presses and Publications Act 1984 has been amended to make it no longer a requirement to annually renew permits to publish. Amendments have also been made to the Universities and University Colleges Act 1971 to enable undergraduates to be members of political parties. A law to facilitate and regulate peaceful assembly has also been enacted.
Taken together, these legislative reforms signal a radical change in the approach towards managing security. The balance between meeting the requisites of national security and upholding civil liberties in the laws of the country will shift from a bias towards the former to a tilt towards the latter.
This will be in keeping with changing times and the challenges of a new political and strategic environment.
The old laws and legal provisions, disparaged and denounced by some quarters, were actually a vital and indispensable tool at a time when the survival of the nation as we know it today was at stake.
The armed communist insurgency threatened to destroy the democratic political order even as it caused widespread deaths and economic damage. The May 13, 1969 riots similarly threatened to unravel social order. Subsequently, laws such as the ISA were handy for several other security incidents, such as against the militant and terrorist groups Al Ma’unah and Jema’ah Islamiyah.
The security environment, however, has changed remarkably since then. Though serious ethnic and religious strife is still possible (for which there are other laws as well), an armed insurgency on the scale of that mounted by the Communist Party of Malaya is extremely unlikely.
Public sentiment has also changed. In more volatile times, people were tolerant and supportive of laws that compromised civil liberties in the greater interest of safety and security. Today, the security situation has improved substantially, thanks to some of the very laws that some despise now.
Memories of the bloody communist insurrection and the May 13 incident have faded.
Indeed, the majority of the population, those below 40 years of age, have no memory of them at all. They are less inclined to vest the same primacy to security that the older generations did in more difficult circumstances.
Awareness of human rights and the importance attached to civil liberties has also grown over the decades. Incarceration without a public trial is simply unacceptable.
This attitude will remain strong unless the security situation deteriorates dramatically.
The erosion of safeguards such as judicial review and the use of the ISA for lesser offences such as forgery of passports and counterfeiting of currency also undermined the integrity of the act.
Except for clear terrorist cases like Mas Selamat, applying the ISA and similar laws allowing for preventive detention has in fact become counter-productive, as the Hindraf detentions demonstrated.
The cost of using them would be higher than the cost of not using them. Alternative ways of managing issues that pose security problems need to be employed.
Indeed, security governance, as with other aspects of public governance, has become more complex, difficult and demanding. The requirement for accountability and transparency is much greater now.
Authorities are less able to discharge their duties, however responsibly, without close public scrutiny. Intelligence and evidence gathering skills will have to be upgraded.
The new bill is superior to the preventive detention provisions of the ISA in several important respects. No person will be subject to preventive detention and detention without trial any more. The minister’s power to order detention has been removed.
There is an express undertaking that no person will be arrested and detained under the law solely for his political beliefs and identity. Detention for the purposes of investigation has been reduced from the 60 days of the ISA to just 28 days. Notification to next-of-kin and access to legal counsel is prompt.
The special measures contained in the bill are no more than the minimum necessary to enable the authorities to effectively combat the unique threats posed by terrorism, sabotage and espionage.
The minimal infringements on civil liberties are standard practice in many democracies noted for their respect for human rights.
Lest it be forgotten, security and safety are fundamental human rights, too, and the provision of security is a raison d’etre of the state.
The new bill, therefore, deserves full support inside and outside Parliament.
Though some details may attract debate, the Bar Council, Suhakam, other human rights organisations and activists in the country and abroad and concerned citizens should have little difficulty in welcoming and endorsing it.
The writer is chairman of ISIS Malaysia. The views are his own.
Read more: Protecting security, safeguarding liberties – Columnist – New Straits Times http://www.nst.com.my/opinion/columnist/protecting-security-safeguarding-liberties-1.73455#ixzz1rxdq3Id1
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Bill is in larger interest of nation
By Dr. Chandra Muzaffar
13 April 2012
HISTORIC CHANGE: The proposed Security Offences (Special Measures) law respects human rights and enhances executive accountability
WHAT is the real significance of the Security Offences (Special Measures) Bill 2012 tabled in the Dewan Rakyat on April 10?
The bill is one of those extraordinary examples in history — in the history of any nation — of the executive voluntarily surrendering its power to the judiciary.
The power to detain a person without trial under the Internal Security Act was, in a sense, the ultimate expression of unfettered authority. Now the government of Datuk Seri Najib Razak has decided to relinquish that authority in the larger interest of the nation and the people.
The implications of the abolition of the ISA and detention without trial are manifold. One, it demonstrates respect for the rights and dignity of the human person. No Malaysian has to fear any more the executive’s arbitrary exercise of power in the guise of national security or political stability.
If a person is deemed to be a threat to national security because of his alleged involvement in organised violence or economic sabotage or espionage or in some attempt to overthrow parliamentary democracy, he will be arrested and investigated for a maximum of 28 days, and, if there is evidence against him, he will be produced in court.
It is a judge — not a minister — who will decide his fate, based upon the law. It is equally significant that the bill states explicitly, “No person shall be arrested and detained … solely for his political belief or political activity.”
Two, the bill also enhances executive accountability. The police as the executive’s arm will have to conduct a thorough investigation with all the instruments of the law at its disposal within a specific timeframe. If there is a case against the alleged security offender, the public prosecutor will have to convince the judge. It is this that makes the executive answerable to the judiciary.
Three, the bill also provides for a degree of parliamentary oversight. It says the 28-day period of investigation “shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of this provision.”
Four, the bill, it is so obvious, strengthens the judiciary. Since its role is to protect and preserve justice, the judiciary will now be able to play that role in the context of determining who is and who is not a threat to national security and public order.
Five, given the positive impact of the bill upon all three branches of government — the executive, the legislature and the judiciary — it will undoubtedly reinforce the rule of law and improve democratic governance.
While contributing to democratic governance, the bill is also cognisant of the importance of protecting the well-being of society as a whole. Provisions relating to sensitive information, interception of communication, electronic monitoring device, protected witness and hearing in camera, testify to this. Nonetheless, even in these spheres, there is some check and balance to ensure that the scope for abuse is minimised.
It is indisputably true that the bill, viewed in its entirety, marks a break with the past. Indeed, the Security Offences (Special Measures) Bill, juxtaposed with a number of other measures introduced by the prime minister in the last seven months, heralds a new era in Malaysian politics.
Three Emergency Ordinances have been abolished; laws pertaining to restricted residence and banishment have been rescinded; the annual renewal of licence requirement in the Printing Presses and Publications Act has been removed; and the Universities and University Colleges Act has been amended to allow for student participation in party politics.
There is also now a Freedom of Assembly Act which is a fairer reflection of Article 10 in the Malaysian Constitution than what the Police Act had provided for. The 32 recommendations adopted by the Dewan Rakyat in December last year and this month aimed at improving the electoral system also promise to enhance freedom and democracy in our country.
Of course, some of these amended laws can be further reformed. There are other laws such as the Sedition Act and the Official Secrets Act which should also be abolished or at least modified drastically.
But no one can deny that the reforms that have taken place in recent times under Najib’s leadership embody the most comprehensive, the most far-reaching agenda for political change that the nation has known since Merdeka. These changes, epitomised by the abolition of the ISA and detention without trial, if properly implemented, will accelerate the sort of political transformation that many right-thinking Malaysians are committed to — a political transformation that will give substance to the exercise of freedom with responsibility.
HISTORIC CHANGE: The proposed Security Offences (Special Measures) law respects human rights and enhances executive accountability
Read more: Bill is in larger interest of nation – Columnist – New Straits Times http://www.nst.com.my/opinion/columnist/bill-is-in-larger-interest-of-nation-1.73449#ixzz1rxkdObgW
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Minda Pengarang: Kerajaan batal tiga proklamasi darurat sesuai kematangan rakyat
2012/04/13
HASIL kemerdekaan dan amalan demokrasi selama hampir 55 tahun, masyarakat Malaysia kini mempunyai tahap kematangan yang lebih tinggi. Justeru, mereka juga dilihat semakin berkehendakkan kebebasan dan tidak suka dikongkong dengan pelbagai perundangan yang sudah tidak lagi relevan dengan keadaan semasa. Undang-undang terbabit dulunya digubal demi melindungi Malaysia daripada anasir luar yang mengancam keselamatan negara. Ia juga digubal demi kepentingan rakyat tanpa sebarang tujuan lain untuk mengekang kebebasan rakyat seperti yang digembar-gemburkan oleh sesetengah pihak.
Sebagai kerajaan prihatin, mesra rakyat dan sesuai dengan perkembangan terkini sejajar dengan transformasi politik yang diilhamkan Perdana Menteri, Datuk Seri Najib Razak, beberapa perubahan akan dilakukan kerana masyarakat berbilang kaum di negara ini sudah bersedia memasuki era baru. Ini bermakna fungsi kerajaan tidak lagi dilihat sebagai mengehadkan kebebasan individu, sebaliknya berperanan untuk memastikan hak asasi yang dilindungi Perlembagaan bagi setiap individu dijamin. Berikutan itu, kerajaan membatalkan tiga proklamasi darurat yang masih berkuat kuasa dan membiarkan semua ordinan di bawah perisytiharan itu mansuh pada Jun depan, kecuali tiga ordinan yang akan dibentangkan sebagai rang undang-undang baru di Parlimen iaitu yang berkaitan dengan RELA, Rukun Tetangga dan Undang-Undang Laut Wilayah.
Sebelum ini kerajaan sudah mengambil langkah memansuhkan Akta Kediaman terhad, Akta Buang Negeri dan menggubal Akta Perhimpunan Aman serta meminda Akta Universiti dan Kolej Universiti (AUKU). Isnin ini, Perdana Menteri akan membentangkan rang undang-undang bagi memansuhkan Akta Keselamatan Dalam Negeri (ISA) pada sidang Dewan Rakyat, seperti yang dijanjikan tahun lalu. Walaupun akta berkenaan banyak berjasa kepada negara, ia juga didapati melampaui jangka hayat kegunaannya, menyebabkan negara kita memerlukan kerangka baru perundangan keselamatan nasional dalam era kontemporari yang semakin kompleks.
Mengikut undang-undang baru itu, kuasa Menteri Dalam Negeri untuk menahan mana-mana pihak tanpa perbicaraan juga dihapuskan dan tiada seorang pun rakyat Malaysia boleh ditahan kerana alasan politik. Sebaliknya, kerajaan akan hanya membentangkan Rang Undang-Undang Kesalahan Keselamatan bagi membolehkannya mengambil tindakan memerangi keganasan global. Apa yang dilakukan ini menunjukkan kerajaan benar-benar serius untuk bertindak secara telus bagi mempertahankan demokrasi berparlimen di Malaysia serta memelihara hak kebebasan warga negara. Apapun, diharapkan tiada sesiapapun akan menyalahtafsirkan usaha murni ini untuk kepentingan politik.
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Jamin tiada tangkapan politik
Oleh Meor Hisham Zulkifli, Nazura Ngah, Zanariah Abd Mutalib dan Nor Fariza Ramlan
bhnews@bharian.com.my
2012/04/11
Rang undang-undang ganti ISA: Akta baru bertujuan kawal keselamatan daripada ancaman pengganas, sabotaj dan pengintipan
KUALA LUMPUR: Kerajaan semalam membentangkan rang undang-undang baru bagi menggantikan Akta Keselamatan Dalam Negeri (ISA) 1960 yang memberi lebih perlindungan dan jaminan tiada seorang pun boleh ditangkap semata-mata atas fahaman dan kegiatan politiknya.
Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 yang dibentang oleh Menteri di Jabatan Perdana Menteri, Datuk Seri Mohamed Nazri Abdul Aziz untuk bacaan kali pertama di Dewan Rakyat itu bertujuan mengawal keselamatan dan ketenteraman awam daripada sebarang anasir pengganas, sabotaj dan pengintipan.
Mengenai tiada tangkapan atas dasar politik, rang undang-undang itu menjelaskan maksud pegangan politik atau kegiatan politik mestilah pembabitan dalam aktiviti yang sah mengikut undang-undang, pernyataan pendapat dan tindakan politik mengikut peraturan parti politik yang berdaftar serta pernyataan pendapat yang ditujukan kepada kerajaan dan pengambilan tindakan yang ditujukan kepada mana-mana kerajaan Persekutuan. Berdasarkan rang undang-undang itu, empat kesalahan dikategorikan sebagai kesalahan keselamatan, iaitu menyebabkan keganasan terancang terhadap orang atau harta, membangkitkan perasaan tidak setia terhadap Yang di-Pertuan Agong, memudaratkan ketenteraman awam dan keselamatan serta melakukan perubahan selain dengan cara yang sah.
Rang undang-undang yang mempunyai lapan bahagian itu mengandungi fasal berhubung kuasa khas bagi kesalahan keselamatan, tata cara khas peranti pengawasan elektronik, tatacara maklumat sensitif, perbicaraan, tatacara saksi yang dilindungi, keterangan dan pelbagai.
Mengenai tiada tangkapan atas dasar politik, rang undang-undang itu menjelaskan maksud pegangan politik atau kegiatan politik mestilah pembabitan dalam aktiviti yang sah mengikut undang-undang, pernyataan pendapat dan tindakan politik mengikut peraturan parti politik yang berdaftar serta pernyataan pendapat yang ditujukan kepada kerajaan dan pengambilan tindakan yang ditujukan kepada mana-mana kerajaan Persekutuan.
Selain dikehendaki dibicarakan di Mahkamah Tinggi, rang undang-undang itu memperuntukkan bahawa mereka yang disyaki melakukan kesalahan tidak boleh diikat jamin, kecuali yang berumur bawah 18 tahun, perempuan dan sakit atau uzur.
Bagaimanapun, tindakan melepaskan mereka tertakluk kepada permohonan oleh pendakwa raya supaya peranti pengawasan elektronik dipasangkan pada orang terbabit mengikut Kanun Acara Jenayah.
Ia juga memperuntukkan kuasa khas kepada pegawai polis untuk menahan orang yang dipercayai terbabit dalam kesalahan keselamatan tanpa waran, tetapi alasan penangkapan perlu dimaklumkan seberapa segera.
Undang-undang baru itu juga mencadangkan seseorang boleh ditahan selama 24 jam, tetapi penguasa polis atau lebih tinggi boleh melanjutkan tempoh tahanan selama 28 hari bagi maksud siasatan, berbanding tempoh 60 hari seperti yang diperuntukkan di bawah ISA.
Namun, jika pegawai polis berpendapat tahanan lanjut tidak diperlukan, mereka yang ditahan boleh dilepaskan tetapi suatu peranti pengawasan elektronik boleh dipasang tidak melebihi baki tempoh tahanan selepas mendapat perintah mahkamah. Selain itu, waris mereka yang ditahan perlu dimaklumkan segera dan tahanan dibenarkan segera untuk berunding dengan peguam.
Rang undang-undang itu juga memberi kebenaran kepada pendakwa raya membenarkan polis memintas sebarang komunikasi sama ada menerusi pos, mesej komunikasi dan mendengar perbualan komunikasi jika mengesyaki ada perlakuan kesalahan keselamatan.
Sementara itu, Nazri turut membentangkan empat lagi rang undang-undang berkaitan bagi meminda Kanun Keseksaan, Kanun Acara Jenayah, Akta Keterangan 1950 dan Rang Undang-Undang Laut Wilayah 2012.
Pada sidang akhbar selepas itu, Menteri Dalam Negeri, Datuk Seri Hishammuddin Hussein berkata, Perdana Menteri, Datuk Seri Najib Razak akan membentangkan bacaan kali kedua di Parlimen pada Isnin ini sebelum dibahaskan.
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Polis boleh pintas mesej, dengar perbualan, buka barang pos
KUALA LUMPUR 10 April – Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 yang digubal ekoran pemansuhan Akta Keselamatan Dalam Negeri (ISA) 1960 memberikan kebenaran kepada pegawai polis memintas mesej yang dihantar atau diterima menerusi mana-mana medium komunikasi.
Rang undang-undang itu juga memberikan kebenaran kepada pegawai polis mendengar perbualan melalui mana-mana medium komunikasi termasuk menahan dan membuka barang pos pada masa penghantaran.
Menurut rang undang-undang itu, kebenaran tersebut diberikan sekiranya pendakwa raya berpendapat terdapat maklumat menerusi medium-medium itu yang berhubungan dengan kesalahan keselamatan.
Pendakwa raya juga boleh meminta penyedia perkhidmatan komunikasi memintas dan menyimpan perihal yang diterima atau dihantar atau yang akan diterima atau dihantar oleh penyedia perkhidmatan komunikasi itu.
Pada masa sama, pendakwa raya juga boleh membenarkan pegawai polis memasuki mana-mana premis untuk memasang peranti pemintasan dan penyimpanan komunikasi tertentu untuk memindahkan dan menyimpan keterangan menerusi medium itu.
Begitupun pegawai polis berpangkat tidak rendah daripada penguasa polis boleh mengambil tindakan yang dinyatakan tanpa kebenaran pendakwa raya dalam keadaan mendesak dan mendadak yang memerlukan tindakan segera tanpa masa berfikir panjang.
Pegawai polis yang telah mengambil tindakan itu bagaimanapun perlu dengan segera memaklumkan kepada pendakwa raya yang kemudiannya akan disifatkan sebagai telah bertindak di bawah kebenaran pendakwa raya.
Namun mahkamah perlu mengambil perhatian mengenai kebenaran yang diberikan oleh pendakwa raya di bawah seksyen ini dan seksyen ini juga berkuat kuasa walau apa pun yang berlawanan dengan Perkara 5, Perlembagaan Persekutuan.
UTUSAN Malaysia
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Kesalahan keselamatan dibicara di mahkamah
KUALA LUMPUR 10 April – Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 yang digubal ekoran pemansuhan Akta Keselamatan Dalam Negeri (ISA) 1960 memperuntukkan setiap kesalahan di bawah rang undang-undang itu hendaklah dibicarakan di Mahkamah Tinggi.
Berdasarkan rang undang-undang itu, terdapat empat kesalahan yang dikategorikan sebagai kesalahan keselamatan.
Empat kesalahan tersebut ialah menyebabkan keganasan terancang terhadap orang atau harta; membangkitkan perasaan tidak setia terhadap Yang di-Pertuan Agong; memudaratkan ketenteraman awam dan untuk mendapatkan perubahan selain dengan cara yang sah.
Ia dibaca buat kali pertama oleh Menteri di Jabatan Perdana Menteri, Datuk Seri Mohamed Nazri Abdul Aziz di Dewan Rakyat, hari ini.
Selain dikehendaki dibicarakan di Mahkamah Tinggi, rang undang-undang itu turut memperuntukkan bahawa mereka yang disyaki melakukan kesalahan tersebut tidak boleh diikat jamin.
Bagaimanapun terdapat tiga kumpulan individu disyaki melakukan kesalahan serupa boleh dilepaskan dengan jaminan iaitu seseorang yang berumur di bawah 18 tahun; seorang perempuan dan seorang yang sakit atau uzur.
Namun tindakan melepaskan mereka tetap tertakluk kepada satu permohonan oleh pendakwa raya supaya peranti pengawasan elektronik dipasangkan kepada orang terbabit mengikut Kanun Tatacara Jenayah.
Peruntukan lain yang terdapat di dalam rang undang-undang itu adalah mengenai kebenaran orang yang ditahan untuk berunding dengan peguam pilihannya serta usaha memberitahu waris sekiranya berlaku tangkapan.
UTUSAN Malaysia.
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Kerajaan ikhlas lakukan transformasi
Oleh NIZAM YATIM
nizam.yatim@utusan.com.my
PEMBENTANGAN Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 di Dewan Rakyat untuk bacaan kali pertama kelmarin membuktikan keikhlasan kerajaan Barisan Nasional (BN) pimpinan Perdana Menteri, Datuk Seri Najib Tun Razak untuk melakukan transformasi.
Transformasi bermaksud perubahan secara menyeluruh dalam segenap bidang kepada bentuk yang lebih baik berbanding reformasi yang lebih menjurus kepada perubahan sempit untuk mengubah tingkah laku buruk yang diamalkan seseorang itu.
Sebenarnya, transformasi yang dibawa BN dengan memperkenalkan idea-idea baru bagi melakukan lonjakan berganda kepada negara adalah lebih baik berbanding reformasi jalanan pembangkang yang sarat dengan idea-idea lama yang langsung tidak menyumbang apa-apa kepada negara.
Salah satu transformasi yang telah dibuat BN melibatkan penggubalan dan pembentangan rang undang-undang terbaru tersebut.
Ia dilakukan secara terperinci melalui perbincangan dengan Suruhanjaya Hak Asasi Manusia Malaysia (Suhakam), Majlis Peguam dan pertubuhan bukan kerajaan (NGO) sejak dua tahun lalu.
Perubahan ini selari dengan perkembangan demokrasi dunia sekali gus memenuhi kehendak rakyat yang mahukan undang-undang lapuk, Akta Keselamatan Dalam Negeri (ISA) 1960 dimansuhkan.
Selain ISA, Najib pada September tahun lalu turut mengumumkan pemansuhan dua akta lain yang dianggap sudah ketinggalan zaman iaitu Akta Kediaman Terhad 1933 dan Akta Buang Negeri 1957.
Jika sebelum ini, ISA membolehkan sesiapa yang dianggap mengancam keselamatan negara termasuk ahli politik ditahan polis tanpa bicara, rang undang-undang baru itu dengan jelas menggariskan tiada sesiapa boleh ditangkap dan ditahan semata-mata atas kepercayaan atau aktiviti politiknya. Mereka yang ditahan itu juga hendaklah dibicarakan di Mahkamah Tinggi.
Sehubungan itu, mana-mana pihak tidak boleh lagi menyamakan Malaysia dengan kerajaan junta tentera Myanmar yang sebelum ini menahan ikon demokrasi negara itu, Aung San Suu Kyi kerana fahaman politiknya yang berbeza.
Malaysia jelas sekali lebih baik berbanding Singapura yang telah menangkap dan memenjarakan pemimpin pembangkang republik itu, Dr. Chee Soon Juan semata-mata kerana berlainan fahaman politik.
Rang-rang undang itu menggariskan empat kesalahan bukan politik yang dianggap mengancam keselamatan negara termasuk menyebabkan keganasan terancang terhadap orang atau harta.
Ia juga membabitkan kesalahan membangkitkan perasaan tidak setia terhadap Yang di-Pertuan Agong, memudaratkan ketenteraman awam dan untuk mendapatkan perubahan selain dengan cara yang sah.
Rang undang-undang baru itu turut menetapkan tempoh maksimum penahanan seseorang individu tidak melebihi 28 hari bagi tujuan siasatan berbanding ISA sehingga 60 hari atau penahanan tanpa perbicaraan selama dua tahun jika diluluskan Menteri Dalam Negeri.
Satu keunikan selaras dengan perkembangan zaman adalah pemasangan peranti pengawasan elektronik dengan kelulusan mahkamah di badan tiga kumpulan individu yang disyaki melakukan kesalahan keselamatan, tetapi dilepaskan oleh polis dengan jaminan.
Ia melibatkan seseorang yang berumur di bawah 18 tahun, seorang perempuan dan seorang yang sakit atau uzur.
Pensyarah Undang-Undang Universiti Islam Antarabangsa Malaysia (UIAM), Prof. Madya Dr. Shamrahayu A. Aziz yang mengulas perkembangan itu berkata, ia membuktikan kerajaan menepati janji untuk melakukan pelbagai penambahbaikan setelah memansuhkan ISA.
Beliau berkata, pemindahan kuasa penahanan suspek kepada mahkamah merupakan salah satu aspek penambahbaikan yang ditunggu banyak pihak.
“Sebelum ini, kita bimbang suspek tidak berpeluang mendapat pembelaan sekiranya kuasa menahan itu diletakkan pada individu tertentu (Menteri Dalam Negeri) sahaja,” katanya kepada Utusan Malaysia.
Dalam pada itu, pakar undang-undang, Prof. Salleh Buang turut sependapat dengan Shamrahayu bahawa banyak penambahbaikan telah dibuat terhadap rang undang-undang baru itu.
“Rang undang-undang ini secara keseluruhan tidak menafikan hak tertuduh untuk membela diri dari segi undang-undang.
“Hak asasi tertuduh juga lebih terjamin memandangkan hanya mahkamah yang boleh mengeluarkan arahan penahanan atau pemasangan peranti pengawasan elektronik terhadap suspek,” ujarnya.
Jelasnya, perbezaan lain berbanding ISA adalah ia turut membenarkan waris dimaklumkan tentang penahanan suspek.
Sementara itu, Pengarah Kriminologi, Pusat Pengajian Sains Kemasyarakatan, Universiti Sains Malaysia (USM), Prof. Madya Dr. P. Sundramoorthy berkata, langkah memperkenalkan rang undang-undang baru itu tidak harus disalah tafsir kononnya kerajaan tidak serius melakukan transformasi.
Beliau berkata, langkah itu dibuat berikutan kerajaan memerlukan satu instrumen perundangan khusus bagi memastikan keselamatan dan kestabilan negara ini terus terjamin.
“ISA tidak sewajarnya dimansuhkan tanpa digantikan dengan undang-undang lain yang mampu membanteras ancaman keselamatan terhadap negara,” katanya.
Tambah beliau, rang undang-undang baru itu dilihat berupaya melaksanakan fungsi itu secara berkesan.
“Kita dapat melihat undang-undang serupa turut dikuatkuasakan di negara-negara lain termasuk Amerika Syarikat dan United Kingdom.
“Memang ada pihak di negara ini yang tidak mahu undang-undang lain diwujudkan bagi menggantikan ISA. Namun, kerajaan perlu memberi keutamaan terhadap aspek keselamatan negara,” tegasnya.
Pembentangan rang undang-undang berkenaan jelas membuktikan janji-janji kerajaan untuk membawa transformasi dalam segenap aspek bukan sesuatu yang retorik.
Oleh itu, diharap pihak pembangkang yang dilihat sudah mula mengeluarkan komen-komen sinis mempertikaikan rang undang-undang ini menggunakan peluang pada sesi perbahasan di Dewan Rakyat mulai Isnin ini untuk mengemukakan syor bagi memantapkannya.
Kita yakin, kerajaan BN yang ikhlas untuk melakukan transformasi tidak akan menolak cadangan pihak pembangkang terbabit jika ia baik untuk rakyat dan negara.
UTUSAN Malaysia
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BISIK-BISIK AWANG SELAMAT
KATA dikota. Itulah yang boleh disimpulkan apabila kerajaan melaksanakan komitmennya membuat transformasi dalam perundangan dengan membentangkan rang undang-undang baru bagi Akta Keselamatan Dalam Negeri (ISA).
Namun rang undang-undang yang bakal menggantikan ISA itu, yang dibentangkan untuk bacaan kali pertama di Dewan Rakyat semalam, tetap tegas dalam memelihara keselamatan awam, tanpa kompromi.
Ia amat wajar kerana ancaman terhadap keselamatan negara perlu sentiasa diberi penekanan demi memastikan hak asasi rakyat terbanyak dipertahankan. Apatah lagi tanggungjawab mempertahankan keselamatan negara bukanlah semua ia dituturkan. Ancaman itu boleh muncul dalam pelbagai bentuk, senyap, ekstrem dan sebagainya. Justeru undang-undang jelas bagi membendung dan menghindari apa juga perbuatan dan aktiviti ke arah itu mesti dipertahankan.
Justeru Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 menggariskan empat kesalahan keselamatan – keganasan terancang terhadap orang atau harta; membangkitkan perasaan tidak setia terhadap Yang di-Pertuan Agong; memudaratkan ketenteraman awam; dan untuk mendapatkan perubahan secara salah.
Pada masa yang sama rang undang-undang tersebut secara jelas mempertahankan hak asasi setiap individu apabila menggariskan tidak sesiapa pun boleh ditangkap dan ditahan semata-mata atas fahaman politik atau aktiviti politik. Tempoh tahanan seseorang oleh polis tidak melebihi 28 hari bagi tujuan siasatan juga satu pembaharuan ketara.
Hakikat itu merupakan pengiktirafan terhadap hak asasi manusia serta langkah memartabatkan proses perundangan negara kita.
AWANG – Sokong.
UTUSAN Malaysia
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RUU ganti ISA: Semua kesalahan dibicarakan
10/04/2012 4:47pm
KUALA LUMPUR 10 April – Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 yang dibentangkan di Dewan Rakyat hari ini bagi menggantikan Akta Keselamatan Dalam Negeri 1960 menetapkan bahawa semua bentuk kesalahan keselamatan perlu dibicarakan di Mahkamah Tinggi.
Rang undang-undang itu dibentangkan bagi bacaan kali pertama oleh Menteri di Jabatan Perdana Menteri, Datuk Seri Mohamed
Nazri Abdul Aziz.
Rang undang-undang tersebut antara lain menyatakan dengan jelas bahawa tiada seorang pun boleh ditangkap dan ditahan
semata-mata atas kepercayaan politik atau aktiviti politiknya.
Selain itu, ia juga menyebut bahawa seorang pegawai polis yang berpangkat penguasa polis atau lebih tinggi daripada itu boleh melanjutkan tempoh tahanan tidak lebih dari 28 hari bagi maksud penyiasatan.
Rang undang-undang itu juga menyebut tahanan keselamatan boleh dipasang peranti pengawasan elektronik bagi tujuan penyiasatan apabila orang itu dilepaskan sekiranya tempoh tahanan lanjutan tidak diperlukan.
Namun, pihak polis perlu mengemukakan suatu laporan mengenai penyiasatan itu kepada pendakwa raya. – UTUSAN
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The Star Online > Parliament
Wednesday April 11, 2012
Life in jail for terrorists under Bill
MEMBERS of any terrorist group can be jailed for life and fined under the Penal Code (Amendment) Bill 2012.
The Bill also proposed life imprisonment for those who commit espionage or sabotage.
Those found attempting preparatory acts of espionage or sabotage can be jailed for up to 15 years.
The Bill stated espionage as an activity to obtain sensitive information by ulterior or illegal means for a purpose prejudicial to national security or interest.
Offences concerning sabotage include an act intending to cause harm in the interests of foreign powers or knowingly producing defective materials used for national defence.
Also tabled for first reading were the amendments to the Criminal Procedure Code (CPC) and the Evidence Act 1950.
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http://c.brightcove.com/services/viewer/federated_f9?isVid=1&isUI=1
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Hisham: ISA’s replacement won’t limit police
Bernama; 3:44PM Apr 15, 2012
The new bill to replace the Internal Security Act (ISA) will not limit the power of police to ensure security and public order, Home Minister Hishammuddin Hussein said.
He said police were satisfied with the new law and confident they would be able to discharge their duties well.
“The new bill would not have been tabled if police as the ‘end users’, who ensure the security of the country, are not comfortable with it.
“So I’m giving an assurance today that the police are satisfied with the bill which will be tabled (for a second reading) by Prime Minister Najib Abdul Razak tomorrow,” he told reporters after addressing the Sembrong Umno in conjunction with the division’s meeting at Felda Ulu Penggeli, in Kluang today.
The Security Offences (Special Measures) Bill 2012, was tabled for the first reading at the Dewan Rakyat earlier this week.
Hishammuddin (left) said the cabinet agreed to strengthen the police to bolster the force’s capability in investigation, legal matters, intelligence, monitoring and bilateral ties with neighbouring countries.
“This is our way forward. We do this based on the realisation that there should be a continuous improvement.
“The new bill had been negotiated with stakeholders such as Suhakam, Bar Council and non-governmental organisations since 2009, taking into consideration aspects such as the detention period,” he said.
Meanwhile, Hishammuddin who is Umno vice-president, expressed support for the setting up of a Royal Commission of Inquiry to investigate the claim that several opposition leaders had shown lack of respect towards the Yang di-Pertuan Agong Tuanku Abdul Halim Mu’adzam Shah during the installation ceremony at Istana Negara on Wednesday.
“I support the view of Umno vice-president Ahmad Zahid Hamidi who has called for the commission to be set up, as those concerned have denied the claim.
If we investigate it on our own, they will say we are being unfair,” he said.
Hishammuddin, who is Sembrong member of Parliament, also refuted rumours of him contesting in Kota Tinggi in the coming general election.
He said that he had been with the Sembrong constituents for a long time and that he would not disappoint them in the coming election.
“I won’t be going anywhere; however, the question of candidacy is up to the prime minister to decide,” he said.
– Bernama
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Police now have excessive power, no accountability’
Nalini Elumalai
2:10PM Apr 16, 2012
COMMENT Suara Rakyat Malaysia (Suaram) is alarmed by Home Minister Hishamuddin Hussein’s statement that the repeal of the Internal Security Act (ISA) will not limit the powers of the police (Source: Bernama 15 April 2012).
The Security Offences Bill (special measures) tabled on 10 April, once again provides excessive powers to the police with limited oversight or accountability.
Suaram has been concerned about these powers since the legislation was tabled and the remarks made by the minister have confirmed our doubts and strengthened our call for the bill to be cancelled immediately.
Laws should be made by taking into account the views of the people, not the police alone!
The statement quoted the minister as “the new bill would not have been tabled if police as the ‘end users’, who ensure the security of the country, are not comfortable with it”.
This sends out a message that the government and Hishamuddin (right) never had the desire to take into account the views of the people, but have been only concerned with how the police view the law because of their role as law-enforcers.
This position once again confirms the view of civil society and many others that Malaysia is a police state and the police can operate without accountability.
Clause 4 of the new bill allows a person to detained for 28 days without being brought before a judge and would also give the police broad powers to conduct searches and intercept communications without a judicial warrant and will allow for abuse of power by the police.
The history of human rights violations by the police, documented over the years by Suaram, while using repressive laws such as Internal Security Act (ISA) and Emergency Ordinance (EO-Public Order and Crime Prevention 1969) clearly shows why the police should not be given such broad powers.
There has been a lack of justice and accountability for a range of human rights violations by the police such torture and ill-treatment, deaths in custody, unlawful police shootings, and abuse of power and corruption in the police force.
This has contributed to the lack of support and trust in the Malaysian police.
Today’s police service in Malaysia has failed to realise the goals set for the establishment of a truly modern, representative and democratic police service.
There has been a lack of progress in reforming the Malaysian police service over the years and effective police oversight mechanisms do not exist at all. Yet the government has once again provided the police with a wide range of powers in the name of national security.
Reform of police crucial
The reform of the police is crucial for the development of a stable democracy, and the development of political and social structures representative of the values and needs of society.
The government need to recognise the crucial role that the reform of the police plays in stabilising societies.
Furthermore, the police reform process should be viewed in the context of the need for a comprehensive review of the the criminal justice system and police accountability.
Respect for human rights and the presumption of innocence are the cornerstones of a fair and impartial criminal justice system.
These principles must transcend the work of the police, be reflected in accountability procedures and define the manner of their interaction with the public.
We are very concerned about the excessive powers given to police in this bill as it will merely act to further restrict fundamental rights and provide wide powers to a police force that has failed to undergo reform and implement the recommendations by the 2005 Royal Commission on Policing dealing with human rights.
Suaram believes that the current bill will strengthen the current climate of impunity and exacerbate the abuse of power by the police.
Therefore, Suaram would like to demand the following:
1. Withdraw and cancel the bill immediately
2. We urge the government to establish the Independent Police Complaints and Misconduct Commission (IPCMC) as per the recommendations made by the 2005 Royal Commission on Policing without further delay.
3. All persons currently detained under the ISA to be released immediately and unconditionally and be provided reparations equivalent to the torture and sufferings that was experienced by the detainees and family members;
4. Establish a Truth Commission to review all past ISA arrests with a view to bring perpetrators of of torture and ill-treatment as well as other human rights violations committed against former detainees to justice in proceedings that meet international fair trial standards;
5. The Government must abolish all other detention without trial laws such as the Dangerous Drugs Act (DDA).
Nalini Elumalai is the executive director of Suaram.
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PM: Redress available in new security law
Hazlan Zakaria; Mkini
12:09PM Apr 16, 2012
Those detained under the new anti-terrorism law will be able challenge their arrest in court, unlike under the Internal Security Act (ISA) which it will replace, assured premier Najib Abdul Razak.
“They are free to file for writ of habeas corpus on the reason and means of their arrest,” he told the Dewan Rakyat today.
“In short the power of judicial review has been returned to the courts, unlike in the ISA where habeas corpus is only applicable to the means of arrest.”
He said this when tabling the Security Offences (Special Measures) 2012 Bill.
Najib said a committee will be formed to monitor its implementation, continuously study the law and amend it if necessary.
As a safeguard, Najib said the Bar Council president and Human Rights Commission chairperson are to sit on the panel.
Praise for ISA
Najib reiterated that Section 4(3) of the Bill states that the law cannot be used to arrest anyone for their political activities or affiliations.
He had praise for the ISA as a ‘guardian of parliamentary democracy’.
“Ironically the law called ‘draconian’ has ensured that democracy, human rights and human dignity are protected in Malaysia compared to the alternative if the country were administered under a communist dictatorship,” he said.
He repeated, however, that the government is aware of the need to change and will continue to do so as the age of ‘government knows best’ is over.
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If there is any truth that the PM will have a panel to determine the detention actions then its still legitimate.
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I agree with Nalini of SUARAM, IPCMC must be implemented so that the enforcement agencies do not overstep their authority and force.
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PM: Special High Court to hear cases under new Security Offences Bill
By MAZWIN NIK ANIS
KUALA LUMPUR: A special High Court will be set up to hear cases under the Security Offences (Special Measures) Bill 2012, said Prime Minister Datuk Seri Najib Tun Razak.
The Prime Minister said in view of the seriousness of offences committed under the proposed new law, a dedicated court would be set up to try such cases.
“Experienced judges will be given exposure to all forms of security offences and the legal provisions that will be used,” he said when tabling the Bill for second reading in the Dewan Rakyat on Monday.
The Prime Minister also said seven safeguards would be in place as the new law would allow an individual be detained by police for investigation purposes beyond the usual practice.
Among the safeguards are those arrested are free to apply for a habeas corpus in court and can challenge the reason for their detention and the detention procedures.
He said the powers for judicial review would be fully returned to the courts unlike under the Internal Security Act which prevented such review except in detention procedure.
“The Government and authorities will respect whatever decision made by the courts. If one is freed, he will not be re-arrested to be investigated on the same offence,” he said.
The maximum 28 days detention without trial clause will be reviewed every five years and shall cease to have effect unless, upon review, a resolution is passed by both Houses to extend the period of operation of the provision.
Najib said there would be no detention more than 28 days within the period, as an investigation officer must submit papers to the prosecution who had to decide whether the detainee was to be charged or released.
The Prime Minister said when a person was arrested and detained under Section 4, police would have to immediately notify the next-of kin and allow him or her the right to attorney within 48 hours.
“As one of the safeguards, the government will set up a committee to review the Act in total from time to time. The committee will also be responsible for monitoring the implementation of the Act and forward recommendations for improvements,” he said.
Najib added the committee would comprise members representing various agencies and also the presidents of the Bar Council and Human Rights Commission (Suhakam).
“The last and biggest safeguard is the power of the people. We must remember the rakyat has the power to chose who to form the government every five years. That is the core foundation of a parliamentary democracy system,” said the Prime Minister.
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Life imprisonment is the best punishment for redemption.
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A Special High Court to hear Security Offences and a panel comprising of SUHAKAM, Bar Council President and NGOs to determine the severity for additional detention days after the 28 days is sufficient. But what is lacking is the fact that the IPCMC Bill ought to be brought up for further study to determine the actions of enforcement authorities.
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New ISA law: An ogre supplanted by an octopus
Terence Netto @ Mkini
8:58AM Apr 17, 2012
COMMENT If the Internal Security Act 1960 was an ogre that destroyed many lives, the new Security Offences (Special Measures) Bill 2012 is an octopus in whose tentacles Prime Minister Najib Razak’s promised liberalisation suffers further smothering.
Last year’s Public Assembly Bill 2011 was supposed to have kicked off Najib’s liberalisation drive, touted in his Malaysia Day address of Sept 15.
What it did was merely to shorten the time frame for demonstrators to obtain police permits to stage protests.
It hadn’t occurred to the powers-that-be that liberalisation means not having at all to obtain police permission to demonstrate.
Now we have another instance of cognitive dissonance: the new Security Offences Bill is supposed to be a substantive improvement over its predecessor, the ISA.
Actually, the bill attests the truth of the saying that looks can deceive. It’s like seeing something by moonlight which can reveal the outline of a thing but not its true nature.
A close reading of the proposed new law’s provisions would establish that in its details, it could enmesh a detainee in long periods of incarceration.
If detention without trial had rendered the Internal Security Act 1960 an abomination, continued detention after a court ordered release, which is a provision in the new law, would make a travesty of claims that the latter legislation is an improvement on the former.
Najib, in tabling the Security Offences Bill, blithely claimed the proposed new law is an improvement over the ISA because the grounds and means of an arrest under it are subject to judicial review.
“They [detainees] are free to file for writ of habeas corpus on the reason and means of their arrest,” he told the Dewan Rakyat yesterday.
“In short, the power of judicial review has been returned to the courts, unlike in the ISA where habeas corpus is only applicable to the means of arrest,” Najib expatiated.
Detention after acquittal
What the PM didn’t mention is that there is a provision in the Security Offences Bill for continued detention by the police, if the latter deem fit, of a person freed by the courts.
True, the new bill provides for judicial oversight of executive fiat – the detainee can challenge his detention in court.
This seeming amelioration over the ISA is negated by the new law’s permission for the executive to continue holding the detainee until the appeal process is disposed.
The improvement of judicial oversight is cancelled by the latitude given the executive to reassert its primacy.
Countervailing powers are the essence of constitutional government. In allowing for the executive to hold a freed detainee until the appeal process is completed, the balance of power is tilted in favour of the executive.
Theoretically, this indefinite detention renders nugatory all the improvements to the duration – the new law limits it to 28 days compared to the ISA’s provision of 60 days – of the initial period of detention of a person by the police.
Detention after acquittal is marginally, not substantively better than detention without trial – the feature of the ISA that had rendered it odious.
This provision for detention after acquittal is the tripwire that prevents the Security Offences Bill from being what the government asserts it is: a vast improvement over its predecessor and one that strikes an optimal balance between the demands of individual liberty and the security concerns of the state.
The extent the hype about the new law masks its harsh reality is further inferred from the provision that allows police to intercept communications without judicial sanction when investigating a detainee for a suspected security offence.
The Human Rights Commission (Suhakam) has expressed its demurral over this clause which it says can “infringe personal liberty and the right to privacy.”
“The provisions in the Bill as well as the amendments to the other relevant laws must strike a balance between national security and fundamental liberties and human rights,” Suhakam chairman Hasmy Agam said in a statement yesterday.
Thus opposition MPs were not the only ones to remonstrate with the government that the Security Offences Bill does little to advance the cause of political liberalisation in Malaysia.
Suhakam and the Bar Council, which had earlier criticised aspects of the Bill, feel likewise.
It appears the Malaysian public has not seen the last remnants of the dreaded ISA.
TERENCE NETTO has been a journalist for close on four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them. It is the ideal occupation for a temperament that finds power fascinating and its exercise abhorrent.
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‘No guarantee security laws won’t be abused’
Hazlan Zakaria; Mkini
12:11PM Apr 17, 2012
Nothing can guarantee that a law won’t be abused, as even the effectiveness of built-in safeguards depends on whether the sitting government and its chief executive will play ball.
If they do not, then abuses can still take place, Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz told the Dewan Rakyat today.
“The most we can do is to put in (a clause) that no one can be arrested for political reasons,” Nazri (right) said.
He said this in response to a question from Opposition Leader Anwar Ibrahim (PKR-Permatang Pauh), when winding up points at the policy-stage debate on the Security Offences (Special Measures) Bill 2012.
Anwar had asked what guarantees the government could give to ensure that the wide-ranging special powers given to police under the new security law will not be abused, in the way that the Internal Security Act (ISA) has been abused.
Provisions of the Bill which have drawn red flags include the power of arrest without a warrant and on mere suspicion; the ability to use ‘sensitive information’ as evidence; and the right to remand those acquitted in prison, pending disposal of the appeals process in court.
Nazri admitted that the ISA had been used to detain persons for political reasons, thereby former prermier Abdul Razak Hussein’s pledge to the Dewan Rakyat that the law would not be used for this purpose.
“….It happened, so we have to repeat the guarantee under Section 4(3) of the proposed security law. It is not just a guarantee but is codified … It is no longer a political promise that can be given and broken, but part of the legislation,” he said.
Section 4(3) of the Bill states that no person shall be arrested solely for his or her political activities or affiliations.
‘Transparent implementation’
Responding to queries during yesterday’s debate as to why the new security offences have not been added to the Penal Code or Criminal Procedure Code, Nazri explained that this is not possible due to the special nature of the problem the law is being enacted to address.
“It is called security offences, special measures. To be used in special circumstances for fighting terrorism, it is not like common offences in criminal cases.”
Nazri however agreed with Yusmadi Yusoff (PKR-Balik Pulau, right) that the era of acting without transparency is over, adding that he will talk to police officials to be more transparent in implementing the new security law.
Ngeh Koo Ham (DAP-Beruas), who intervened, asked why the courts are not allowed to release those acquitted of a charge pending disposal of the prosecution’s appeal.
It is as if the government does not trust the courts, although it touts the judiciary to be a major safeguard against abuse of the law, he said.
Nazri said this is because the matter concerns national security and, similar to serious criminal cases, the clause is to ensure that the individual will not flee or commit another offence.
‘This is a terrorism case’
“This is a terrorism case, we need to detain them. Even in murder cases, we are allowed to hold the accused during the appeal process,” he added.
Finally, at 3.30pm, the Dewan Rakyat passed the Security Offences (Special Measures) Bill 2012 by a majority voice vote , with the BN flexing its majority muscle to push it through despite arguments and regulatory roadblocks from the Opposition.
Deputy speaker Wan Junaidi Jaafar presided when the Bill was passed the Bill without amendments despite much debate from the Opposition and a slew of modifications tabled by Dr Michael D Jeyakumar (PSM-Sungei Siput).
Jeyakumar (right) had submitted amendments to five sections of the Bill during today’s committee stage debate, but to no avail as the BN majority voice swept his attempts aside.
Prior to that, R Sivarasa (PKR-Subang) had tried to move a motion under Standing Order 55(1), to send the proposed security legislation to a Parliamentary Select Committee for a six-month hiatus to be re-studied and reworked was also rejected amidst arguments and confusion over what “second reading” meant and what subsection of the Standing Order his motion was tabled under.
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New threat of terrorism
By REGINA LEE
regina@thestar.com.my
KUALA LUMPUR: Nations of the world are now facing a new threat of terrorism from groups or corporations trying to destabilise economies.
Defence Minister Datuk Seri Dr Ahmad Zahid Hamidi said with rising costs and interdependence of countries’ economies, it no longer made sense for any country or global power to go to war as they had too much to lose.
But with the rising ease of communication and travel between nations or continents, he said countries now face the menace of economic terrorism.
What’s hot: Noraliza Rosli, 25, handling a Turkish-made submachine gun at the Defence Services Asia exhibiton in PWTC yesterday. (
“Efforts to destabilise nations’ economies by individuals, groups or corporations are fast becoming a threat.
“By destabilising the economy, the people of a country will be subjected to riots, rallies and protests, crippling its stability.
“This will prevent development and create an unsafe environment for trade, finance and investment,” he said at the opening of the Putrajaya Forum themed “Enhancing Multilateralism for Regional Defence and Security”.
The forum was held on the sidelines of the Defence Services Asia exhibition at the Putra World Trade Centre yesterday.
Zahid said economic terrorism could result in violence, creating unrest in the country.
“Economic terrorism can either have immediate effect or carry physical or psychological effect, the consequences of which can cause the destruction of the economy and finances of a nation,” he said.
Visitors taking a closer look at ordnance on display at the exhibition.
On the subject of regional cooperation, the minister said Malaysia and the other Asean member states had instituted a number of platforms such as the Asean Regional Forum.
“These platforms have brought greater transparency in handling sensitive issues within Asean member states or with countries outside Asean,” he said.
He said several initiatives have been implemented including joint border patrols and multilateral efforts to combat piracy and transnational crime.
“From these efforts, we see that one country’s interest has also become another country’s interest. As such, national interest is becoming more and more about collective interest,” he added.
The task, he said, was to reflect this in a common and practical approach to improve relationships and strengthen the Asean principle of “prosper thy neighbour” as practised since 1967.
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Nazri: New law won’t target legitimate dissent
Hazlan Zakaria
7:34PM Apr 17, 2012
The use of the term “detrimental to parliamentary democracy” is not meant to target legitimate political dissent under the Security Offences (Special Measures) Bill 2012 that the Dewan Rakyat passed today, or under amendments to other laws in its support.
“It is the most comprehensive term to describe parliamentary democracy in this country, which is democratic rule by the people, entrusted to those elected to Parliament,” Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz said while tabling the amendments to the Penal Code for its second reading today.
The amendments to the Penal Code, in addition to more to the Criminal Procedure Code and the Evidence Act, are to support the newly passed security law to replace the much criticised Internal Security Act by adding provisions to define new security offences and other procedures.
Nazri said the definition of the new security offences and other procedures was borrowed from the United Kingdom’s Security Services Act 1989.
The UK Act, along with other anti-terrorism laws, provides the legal framework for the existence and function of the British MI5, the state security apparatus concerned with internal security and anti-terrorism activities.
Specifically, the de-facto law minister said, the definition was lifted from Section 1(2) of the UK Act which reads:
“The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”
Definition ‘too wide and too vague’
In the Malaysian context though, Nazi said, the government decided to adapt the legislation to refer only to activities undermining parliamentary democracy through “violent or unconstitutional means” and dropping the other definitions in the UK law.
However, Opposition MPs debating the Penal Code amendments are adamant that the term “detrimental to parliamentary democracy” was still too vague and too wide and therefore open for abuse and misuse.
Many stood up to air their dissent as the BN backbenchers rose to deflect.
The Bill to amend the Penal Code will continue to be debated at the policy stage, tonight with Parliament scheduled to end its sitting for the day at 9.30pm.
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Gov’t says no to ISA truth commission call
Aidila Razak; Mkini
12:28PM Apr 19, 2012
The government has turned down calls for a truth commission to investigate claims that the soon-to-be-repealed Internal Security Act 1960 has been abused.
Home Minister Hishammuddin Hussein said today such calls were merely to distract from the “progressive” Security Offences (Security Measures) Bill 2012, which is to replace the ISA.
“There is no need. (The critics) have just found areas to distract the public from the positive changes we have brought, in order to instil anger and hatred,” Hishammuddin said.
Minister in the Prime Minister’s Department Nazri Aziz had earlier told Parliament that there have been instances where the ISA, which allows detention without trial, had been used for political reasons.
Meanwhile Hishammuddin (right) said he is still deciding on what to do with the current batch of detainees held under ISA at the Kamunting detention camp.
“All of them have been detained because of terrorist activities. It’s not something easy, I have to look at every case,” he said.
He added that the public would not accept any explanation if a released detainee ends up jeopardising national security.
“In the realm of security it is a zero sum game. We make a mistake and people die. We are dealing with terrorists,” he said, of the detainees charges against whom have yet to be proven in court.
While he needs more time to mull the fate of the detainees, Hishammuddin said the new Bill is “so tight” because it was three years in the making.
“We have found the right balance of human rights and national security in the new Bill and this is just a a beginning. We are looking forward to operation and capacity building of those involved,” he said.
He said a special allocation has also been requested to train and equip police with the electronic monitoring devices as allowed in the Bill, for released detainees.
“There is nothing new (about the devices), they are used by some police forces overseas…That’s the way forward,” he said of the much crticised provision of the Bill.
Opposition just finding fault
He also expressed disappointment with the opposition which, he said, had “no constructive criticism for the new Bill”, only finding fault with the government’s reform efforts.
“I can’t imagine it. The Bill that has taken three years to come to Parliament, and the opposition has nothing positive to say about it. Not a very responsible opposition at that,” he said.
Sungai Siput MP Dr D Jeyakumar had proposed a long list of amendments, while PKR lawmaker R Sivarasa proposed that the Bill be discussed at a parliamentary select committee.
Both proposals were rejected and the Bill was passed by the Dewan Rakyat after about 10 hours of debate last Tuesday.
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A right to integrity
The commission to look into misconduct by enforcement personnel deserves greater public support
AS official complaints mechanisms go, Malaysians have no cause for complaint. The latest of them is the year-old Enforcement Agency Integrity Commission aimed at dealing with the misconduct of federal enforcement agencies, including the police, Immigration, Customs and Rela. The EAIC was legislated from a recommendation by a royal commission in 2005 for an independent tribunal on the police, which had aroused enormous public interest at the time. Now, however, with the EAIC up and running, that excitement appears to have waned — a pity since it has broad investigative powers which would gratify any complainant. It is not news that Malaysians have endless grouses against many enforcement agencies. Or, are these just groundless grumbles on the part of bored citizens needing to whinge without the bother of proof? It could also be that too few are aware that there is now an ombudsman of sorts for them to vent their grievances.
The small number of just more than 90 complaints received since April 1 last year may have provoked the EAIC chairman’s guarantees that the complainant’s identity will be kept confidential. The commission is prepared to believe that misconduct is rife enough to warrant the expectation of many more complaints, especially given that it is the result of a process started by the royal commission to enhance the operation and management of the police. That its purview has been widened to cover 21 enforcement agencies should, logically, bring the complaints pouring in, even though corruption is not part of the EAIC’s portfolio. Surprisingly, that has not been the case. Obviously, the commission is performing its task of being unwilling to accept that enforcement agencies are well-oiled machines, manned by officers ready with a smile.
Even taking into account most people’s wariness about reporting bad hats among the uniformed services, it still is an unsatisfactory explanation for the dearth of unhappy citizens. Ignorance could be why few are voicing their dissatisfaction. Notices ought to be plastered on the walls of all federal enforcement agencies announcing the citizen’s right to be attended to with courtesy and efficiency, and where he can go to should that right be denied. Indeed, corruption is intolerable and those victimised by it must resort to the relevant commission, the Malaysian Anti-Corruption Commission. Its eradication requires a great deal of public support and cooperation. Similarly, the quality of work by the enforcement agencies can best be raised only with intense public scrutiny. This can hardly come to pass if the EAIC is treated with apathy.
Read more: A right to integrity – General – New Straits Times http://www.nst.com.my/nation/general/a-right-to-integrity-1.74959#ixzz1sZQccia5
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Rang Undang-Undang Kesalahan Keselamatan 2012 lebih lengkap
KUALA LUMPUR 18 April – Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 dilihat lebih lengkap bagi memastikan negara dapat dilindungi daripada sebarang ancaman pengganas khususnya dalam suasana dunia yang semakin kompleks ketika ini.
Ketua Kluster Governans, Perundangan dan Pengurusan Awam, Majlis Profesor Negara, Prof. Dr. Nik Ahmad Kamal Nik Mahmood berkata, keganasan dan ancaman kepada keselamatan negara sekarang telah berevolusi dan tidak terhad pada ancaman komunis sahaja.
”Dalam memastikan keselamatan negara lebih terjamin daripada sebarang ancaman, undang-undang pencegahan seperti itu amat diperlukan.
”Undang-undang itu bakal memberikan kuasa yang cukup kepada pihak berkuasa bagi mencegah sebarang ancaman tetapi pada masa sama hak-hak rakyat sendiri lebih terjamin,” katanya ketika dihubungi Utusan Malaysia di sini hari ini.
Beliau berkata demikian ketika mengulas mengenai Rang Undang-Undang Kanun Keseksaan (Pindaan) 2012 yang diluluskan semalam bagi melengkapkan Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012.
Rang Undang-Undang Kesalahan Keselamatan (Langkah-Langkah Khas) 2012 hanya memperuntukkan langkah-langkah khas untuk menangani kesalahan keselamatan dan tidak membuat peruntukan mengenai jenis kesalahan yang menjadi kesalahan keselamatan.
Tambah Nik Ahmad Kamal, jika dulu suspek pengganas boleh ditahan tanpa bicara sehingga 24 bulan tetapi sekarang hanya dibenarkan untuk ditahan tidak lebih 28 hari.
”Ini membuktikan undang-undang baru itu jauh lebih baik berbanding Akta Keselamatan Dalam Negeri (ISA) dalam memastikan proses demokrasi dapat berjalan dengan lebih adil kepada rakyat,” tegasnya.
Bagi Presiden Persatuan Pegawai-Pegawai Kanan Polis Bersara Malaysia (Respa), Mohd. Jamil Mohd. Hassan pula, undang-undang baru itu sebagai satu langkah menambah baik yang selari dengan sistem demokrasi di Malaysia.
”Jika dahulu ISA dikatakan zalim tetapi sekarang di negara-negara yang terkenal dengan perjuangan hak asasi manusia itu juga telah memperkenalkan undang-undang hampir sama seperti Akta Patriot di Amerika Syarikat, Akta Pencegahan Keganasan di United Kingdom dan Akta Anti Keganasan di Australia.
”Ini membuktikan langkah pencegahan amat perlu dalam menghadapi sebarang ancaman bukan sahaja kepada Malaysia tetapi juga kepada negara-negara maju lain,” ujarnya.
Tambah beliau, senario dunia hari ini sudah banyak berubah sejak tragedi 11 September 2001 dan ia telah memaksa satu undang-undang baru diwujudkan supaya keselamatan negara lebih terjamin pada masa hadapan.
Tegasnya, semua pihak khususnya mereka yang cuba mempolitikkan undang-undang tersebut perlu berfikir dengan lebih rasional.
”Mereka hanya mahu mencari populariti politik tanpa meletakkan kepentingan negara sebagai keutamaan,” jelasnya.
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End to detention without a trial
By SHAHANAAZ HABIB
shaz@thestar.com.my
After 52 years, to everyone’s relief, the ISA was finally repealed. How will the new Security Offences (Special Measures) Act and amendments to curb and nab security offences measure up to the basic human rights principles?
ON Sunday afternoon, two days before the Security Offences (Special Measures) Bill was tabled in parliament, Attorney-General Tan Sri Gani Patail met with Suhakam for two hours to explain the new Bill.
According to Suhakam, it was told only on Saturday night that the A-G wanted to meet them at 4pm the next day (Sunday).
Chairman Tan Sri Hasmy Agam describes it as “more of a briefing than a consultation”.
“The AG showed us the draft and highlighted the main points. But we didn’t have enough time to read it and go through it because we were on our way to Kluang after that.
“Still, (Suhakam vice-chairman) Datuk Dr Khaw (Lake Tee) managed to raise a few questions in that short time which the AG took constructively.”
Hasmy asked the AG if the new act to replace the ISA was simply “old wine in a new bottle” but the AG said “no, it is new”.
Like many NGOs in the country, Suhakam, which is Malaysia’s human rights commission, has been pushing for the repeal or at least amendments to the ISA for years.
The 52-year-old act has been condemned for misuse, detention without trial and violating basic human rights.
In his Malaysia Day speech last year, Prime Minister Datuk Seri Najib Tun Razak had pledged to repeal the ISA, the Banishment Act and the Emergency Ordinance and also lift the three Emergency Proclamations in the country.
There were sceptics, of course.
Even Suhakam itself wasn’t sure it would be done.
“We are quite surprised and gratified that the ISA has been repealed. When the PM announced it, we wanted it to be done expeditiously because we thought at that stage it was cakap aje (all talk) and would take years to implement.
“But the PM was serious and expedited it. It takes guts to throw out the ISA,” says Hasmy.
Last week, parliament voted to repeal the ISA and pass the Security Offences Bill in its place, along with amendments to the Penal Code, Criminal Procedure Code (CPC) and Evidence Act to address security issues.
Under the new Security Offences law, police can detain a person for 24 hours for investigation.
However, his next-of-kin should be notified immediately of his arrest; he can have access to a lawyer within 48 hours; after the first 24-hour period a police officer of the rank of superintendent or above can extend the detention period to up to 28 days after which the person must be charged or released; and during the period of detention he can go to court to file a writ of habeas corpus seeking his release.
The law also states that a person cannot be charged for his political beliefs or activities.
All this seems a far cry from the ISA which has been used against politicians, environmentalists, trade unionists, social activists, and religious extremists, among others.
Under the ISA, the person is not charged in court and the police has the power to detain him for up to 60 days after which the Home Minister can sign a detention order for two years, and extend it after that.
But even as the new Bill to replace the ISA was passed, there were already voices expressing concern and calling for amendments.
They say the act is too vague, too general and open to abuse.
Batu MP and former ISA detainee Tian Chua is not comfortable that activities, attempts to commit an activity, the printing and sale of documents and publication “detrimental to parliamentary democracy” are all spelt out as security offences under section 124 of the amended Penal Code.
“This is quite dangerous. Parliamentary democracy is such a vague concept,” he says.
“If someone imports or circulates material and books that argue that parliament is not necessary and that we should have a system ruled by intellectuals, ulamak or the politiburo – they can be immediately classified as anti-parliamentary democracy and charged under the law and jailed for up to 15 years! This is serious.
“It is a contradiction when the law states a person cannot be held for his political beliefs yet any action or attempt against parliamentary democracy is considered a breach of the security law.”
Tian Chua asks if kids who want to form a revolutionary club to follow Marx, Lenin, Mao, or an Ayatollah (who are considered undemocratic) can be considered as carrying out an “activity detrimental to parliamentary democracy”, which is a security offence under section 124b of the amended Penal Code.
But Suhakam’s Dr Khaw says that when the AG briefed them, he did explain that the focus of “activity detrimental to parliamentary democracy” is on “violent and unconstitutional means” of overthrowing a government.
“People would be worried about what an ‘activity detrimental to parliamentary democracy’ means. It can be anything. But I would say it’s not just a threat to parliamentary democracy. It’s what you want to do and how you want to do it,” she says.
“All ingredients in the crime must be met. You can overthrow the Government if it’s (action) not violent or unconstitutional. But who knows how the court is going to interpret it?”
What Dr Khaw and Hasmy and a number of others would have liked is for the Security Offences Act to have “judicial oversight” during the detention period so that any extension of remand after the initial 24-hour period is authorised by the High Court and not a senior police officer.
Concurring, human rights lawyer Edmund Bon also questions why the remand period under this new law is 28 days – which is 14 days more than the common remand period.
“The law is not perfect and has its deficiencies but we are not living in a perfect world. We will monitor the performance of the law and carry out our role as a watchdog and try to effect changes over time.
“We accept being co-opted into the committee and can work from inside to ensure that human rights elements are respected,” says Hasmy.
Speaking in parliament last week, the Prime Minister said one of the safeguards is the formation of a committee to look into and improve on the new law from time to time. Suhakam and the Bar Council would be in the committee.
Another safeguard is a sunset clause on the 28-day remand period which allows this to be reviewed every five years.
What also concerns Tian Chua about the new law is how wide and general it is and the harsh punishment.
He notes that espionage in the new law is defined as “an activity to obtain sensitive information by ulterior or illegal means for the purpose that is prejudicial to the security or interest of Malaysia”.
This, he adds, covers a whole range of essential services such as water, electricity, public health, banking and finance, fire, prison, postal, telecommunications, public transport, fuel and lubricants distribution.
“In most countries, espionage means selling information to a foreign power but here it means ‘stealing’ information.
“So if I expose some highway agreement, in the past it was an OSA (Official Secrets Act) offence but now I can also be charged for spying?
“If an employee of Syabas discovers a massive fraud and because the Selangor (State government) is a stakeholder in Syabas, he secretly photocopies documents and sends them to the Selangor Mentri Besar because the Mentri Besar has a right to know, can he be charged for spying?
“The NFC loan scandal involves banking and finance services: is getting hold of documents to expose this (considered) espionage?
“You can argue that this is not prejudicial to the security of the country but you are not sure how the judge will interpret ‘security’ and the ‘interest of Malaysia’. It is so vague.
“People who have gone through ISA will shiver when they hear the words ‘prejudicial to security’ .
“People have been detained in the past for being ‘prejudicial to security’ just because they have had secret meetings on how to organise demonstrations or because they were against the Asian Rare Earth plant in Bukit Merah.
“It is at the liberty of the people in power to decide what is security,” says Tian Chua.
The punishment for espionage is life imprisonment. So Tian Chua says people would play it safe and not take the risk of exposing wrongdoings.
“The new law and amendments (of the Penal Code) really scare us,” he adds.
Lawyer and Kota Belud MP Datuk Rahman Dahlan agrees that the definition of security offences is broad but justifies it on grounds that “terrorism comes in all forms and shapes”.
“To make the definition too narrow or specific would be risky. The law may not be effective,” he adds.
With the new clauses, which include judicial review and open trial, he believes abuses would be “greatly reduced”.
Lawyer, ex-ISA detainee and Wangsa Maju MP Wee Choo Keong is happy to see the last of the ISA .
He also says that being a young and multi-racial country, it is good that national security has been well preserved all this while and “most things” nipped in the bud.
“We have seen many countries with so-called freedom that have had bombings, like Spain, Bali, and London where innocent people were killed. But in Malaysia have we got this?”
As for the new law, Wee supports it and thinks it a good law as a whole. However, there are two sections in particular that he is not happy about.
One is that the identity of the witness cannot be known and the other is that an accused who is acquitted would not be released until all the appeals are exhausted.
He says the moment the prosecution says it is going to appeal and file appeal papers, according to section 30 of the Act, the judge has no discretion and has to extend the detention.
“I think the judge should be given the discretion to decide whether to further detain or not, based on the application. That is very important.
“The moment you oust the court’s jurisdiction on making a decision based on evidence presented before the judge, I think it will be unjust,” he says.
Wee also strongly believes it is wrong that the identity of the witness cannot be known and he cannot be cross-examined.
“We must know who provided the evidence against us so that we can rebut.
“The judge will be the person to decide to accept or not to accept a witness’ testimony but how can he make that decision when the witness cannot be cross-examined?
“Because it means that the testimony has not been tested. It’s only through cross-examination that you get the property of the evidence.
“How can a judge evaluate based only on what the witness said? I don’t think a judge can make an informed decision based on that,” argues Wee, who says he would ask for these two sections to be amended.
Bon also finds it odd that the AG can withhold sensitive information about the accused from the defence, and questions why someone with a security offence has less rights than others.
But Rahman argues that the law is “adequate for the time being”.
“As it is, it is a major departure from the original spirit and provisions of the ISA. Remember, laws are not static, they are dynamic.
“If one day Malaysians are more comfortable to take on more responsibility for the security of the nation and feel more confident for more freedom and liberty over national security concerns, then I am sure amendments to the Act will be done in the future,” he says.
Still, Dr Khaw would have liked for the law to be done right the first time instead of passing it first and amending it later.
“I call that surgery and re-surgery. Why do that?” she says, adding that she would have preferred more time to study and debate it.
Dr Khaw, a former law professor, suggests that the AG should explain to the people what this new law and amendments to the Penal Code, CPC, Evidence Act are about, what they mean, their implications and how different they are from the ISA.
“When they (the AG’s chambers) draft the Bill, there are good intentions on their part. But sometimes in the drafting process, they come up with certain provisions that have not been thought through or that have other implications.
“There’s no harm in a more open consultation with people. Why can’t we allow an exposure draft of the Bill for people to comment on? Then, the AG can get feedback and comments from the public and go back and review it.
“He is at a liberty to disagree but after he’s heard the public views. Why can’t it be done that way?”
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A matter of trial and error
By SHAHANAAZ HABIB
shaz@thestar.com.my
The new Security Offences (Special Measures) Act is arguably imperfect, but the timing of its conception cannot be more perfect for the new generation of Malaysia, says de facto Law Minister Datuk Seri Nazri Aziz.
MANY took it as lipservice when the Prime Minister announced the repeal of the controversial ISA in his Malaysia Day speech last year. Others were even more sceptical when he said that the Government would replace it with new laws more in keeping with the principles of human rights. But seven months later, it happened. The dreaded ISA has been repealed and replaced with a new law and amendments to the Penal Code, the Criminal Procedure Code and the Evidence Act.
So, how do the new Security Offences (Special Measures) Act and amendments measure up? De facto Law Minister Datuk Seri Nazri Aziz addresses some concerns.
Q: People are happy the ISA is finally gone but there are already many questions and concerns over the new Act. Why the rush?
A: If we all still remember, it was three years ago when PM Datuk Najib (Tun Razak) first took over the administration of the country and he did say that he would look into reforming the laws which are considered to be archaic, draconian and not consistent with a developed nation status. That was three years ago. How is it that it is being rushed?
And last year there were many questions raised by mostly opposition MPs asking when the ISA is going to be abolished and the supposedly new law is going to come in? How is it that after three years and after all these questions have been asked – that now it is a rush job? Certainly not. I think three years is long enough to engage the stakeholders and finally come up with a new law. Certainly the AG’s chambers had to make a lot of references to the laws of other countries like the UK, the US and Australia. All this takes time. I think three years is just what is expected so to me it’s not rush job.
Q: Stakeholders like Suhakam said they were briefed rather than consulted on the new bill. And this was 2 days before it was tabled in parliament which was too short a time for them to give an indepth input on the draft. Why?
A: There is something greatly wrong when people think that consultation means we must agree with all what they propose. Consultation means listening and engaging. At the end of the day, it has to be our decision. So they should not think that consultation only occurs when whatever they propose will be accepted. That’s not right. If they are not unhappy that some of the proposals are not what they want, it doesn’t mean that we didn’t consult them.
Q: So you think the new bill is in line with human rights?
A: Certainly. Like informing the next-of-kin immediately when a person has been detained, allowing the detainee to engage a lawyer within 48 hours of his detention and after 28 days, the detainee is either to be freed or charged. All these things were not in the ISA and civil society was against it (the ISA and the absence of human rights).
Q: Why is the 28-day extension of remand of a detainee made by the police and not brought to a court to decide?
A: These are security offences and not ordinary criminal offences. You must distinguish between the two. Security offences are serious offences. Let’s say, after 24 hours of detaining the person, you must go to court for the remand. Tell me, what kind of evidence can we get within 24 hours to convince the judge to further extend the remand to 28 days? Just think. Do you think there will be enough evidence? That’s number one.
Number two – because it is a serious offence – there must be a continuity in the investigation so that’s why it is better for us to get the 28 days first and let the investigation continue whilst at the same time the detained person can avail himself to two legal recourse. He can engage a lawyer within 48 hours (of his detention) and he can apply for a writ of habeas corpus on substantial and procedural matters. In the past, the detainee could only seek a writ of habeas corpus on procedural matters and not substantive. Previously, judicial reviews were not allowed but now they are. So these are new safeguards.
Q: The Security Offences Act states no one will be arrested for political beliefs yet the amended Penal Code states that an activity “detrimental to parliamentary democracy” is a security concern. Isn’t this a contradiction?
A: No. You must go back to the main (Security Offences) law which states that nobody will be arrested for their political belief . The amendments in the Penal Code must be read together with that law. You want to have whatever government you want – no problem – but it has to be through elections because that is the way provided by the constitution. It’s fine as long as it is not violent and not through unconstitutional means.
Q: What if I want a sultanate or the caliphate system of rulers or if I am propagating an activity against parliamentary democracy, can I be arrested under that law?
A: No, because your means are constitutional. You are not taking arms against us. You are campaigning in elections to be where you want to be. If you want the sultan to be PM, it’s okay if it is done through elections. But you cannot use violence. If you merely engage people – then it’s okay. That’s not unconstitutional.
Q: What if someone wants to initiate an anti-parliamentary democracy movement?
A: Go ahead – it’s not unconstitutional. Just don’t do it through violence or unconstitutional means. They can campaign, have seminars – that’s okay. It is allowed.
Q: What if I practice communism or socialism and that is my political belief?
A: No problem. The law doesn’t state ideology.
Q: So you are saying that an“activity detrimental to parliamentary democracy” is an offence under the law only if it is violent and unconstitutional ?
A: Yes, if you want to just talk about it, that’s okay. There’s nothing wrong. You may be caught under Sedition Act – but you won’t under this act.
Q: Under the law, printing, importing or possession of a publication “detrimental to parliamentary democracy” could land the person in jail for five, ten or 15 years. Does that mean a person who buys or has a book on the Arab Spring revolution in the Middle East is committing an offence?
A: No, it’s okay to read those books. So long as it’s not a book that says Let’s Bring Down The Government Through Arms’ or Let’s Bring The Government of Malaysia Down Through Revolution’ – that tak bolehlah.
Q: What about books on How Revolutions are Born’ or How Revolutions are Made’?
A: That’s okay. We are not going to ban those books.
Q: But isn’t this open to interpretation? As law minister your intention might be such but the court might take a very literal interpretation instead.
A: At the end of the day, we leave it to the court to interpret the act. That has always been the role of the court. We shouldn’t deny the role of the court to interpret.
Q: But the court can only decide according to the law and the lettering of the law is very vague?
A: Let the court decide. We only legislate.
Q: Espionage is described in the amendments as “activity to obtain sensitive information by ulterior or illegal means for purposes prejudicial to security and interest of the country” and it lists many essential services down. If someone has information of a wrongdoing in one of these services and wants to reveal it to the media or public but he can’t because it is now deemed a security offence?
A: Come on man. As if you can’t report on some wrongdoings. The act and amendments are for serious offences like someone wanting to sabotage or bomb any of the essential services like water or electricity. It’s not what you disclose or write about the essential services.
Q: But the law is vague and the interpretation is loose because someone might argue that disclosing the information is for public interest while the authorities might say it is “prejudicial to security”?
A: Argue it in court. That I am doing such a thing not to sabotage but to report that there is a wrongdoing’. If it’s a whistleblower, you have to inform the authorities. It’s not a defence to say that I don’t trust the authorities.
Q: Then it doesn’t look like a very friendly act?
A: Espionage falls into serious offences. You cannot equate it with ordinary criminal offences. That is why we put it down in the act as “special measures”.
It is also preventive in nature which means that we do not have to wait until something is done to the essential services before we act. That is why we need all these as tools – otherwise we have to bring back the ISA.
Last time, we couldn’t bring them (terrorists) to court because we didn’t have all these tools which is why we used the ISA. But now people demand that we charge them for some offence or other which is why we listed these offences down otherwise we cannot catch them.
It’s not like such threats to the essential services have not happened in the past but back then people didn’t know about it because we used the ISA.
Q: What if the judge takes it literally?
A:Why are you questioning the role of the court to interpret? They will have to interpret the law. Would you imagine a judge is someone who is political? I cannot answer you if you don’t trust the court.
Q: The remand is normally for up to14 days but this law allows for 28 days. Why is it different?
A: Because these are “special measures”. Serious security offences can’t be equated with normal criminal offences. Otherwise we don’t need that Security Offences law – and we might as well just use the Penal Code.
Q: Why does the law allow the AG to withhold sensitive information from the defence?
A: Serious security offences cannot be treated as the same as normal criminal offences.
Q: What is the rationale for holding a person who has been acquited until all avenues of appeal have been exhausted?
A: It’s a serious offence. The judical process has not ended because there is always an appeal to the higher court and an appeal is available to both sides – the prosecution and the defence.
When a person is found not guilty, if we allow him to go off while waiting for the appeal process, we may not be able to get him back later.
Do you think it is wise to allow a terrorist suspect go if the court releases him? People like Nordin Top for example – if the High Court finds him not guilty – do you really think we should let him go free?
Those charged with murder, even if the court frees them, they are not released as they have to go through the process of judicial detention until all avenues are exhausted – so how is it that a suspected terrorist which is a more serious offence – be allowed to go free (pending appeal) the moment he is not not found guilty?
Q: Is it because the general election is soon that the government wants to put this law in place before that?
A: No, this was due already. It’s not because of elections. Parliament ends next year so we are well ahead. We cannot be doing things and take into consideration what people perceive is going to happen. We have to follow the natural life span of parliament. The life span of this parliament is next year so when we do it this year – we are actually one year ahead.
Q; The letter of the law is so vague that this new law seems as scary if not scarier than the ISA?
A: What people don’t understand is that at least people will be charged. In the past, we do not hear about all this because we use the ISA. It is wrong to say that it is more scary. At least now, we are putting up laws to ensure that nobody will be detained without trial. We can at least charge the person for something. People have been doing all sorts of things (security threats) in the past and we used the ISA so nobody knew.
Now people want us not to detain people without trial which means people want us to charge the person who is being detained or arrested. That is why we need to have this.
Q: How come the Dangerous Drugs (Special Preventive Measures) Act still allows for detention without trial by the police for 60 days and Home Minister for another two years?
A: The A-G’s chambers is looking into this and will give a concept paper on this to the Cabinet within this year to bring this law also in line with the new Act which means doing away with detention without trial. The PM is very reformist. He has a heart and is looking into all this.
Q: Is the PM doing this just to win votes in the coming election?
A: No! You must remember he is the first Prime Minister who was not actively involved in politics before independence so he is actually the first of the new generation. Pak Lah was the last of the old generation. So the thinking is different. He is the new generation with all these (new) values. The moment he took over in 2009, he decided to do all this. And elections were still a long way away then. I am very happy because as a person trained as a lawyer, it was so difficult to defend the old law. We needed all those steps in the past but after over 50 years of independence it has to end. The ISA was useful and helped establish peace and stability in the country but now society is changing. A church got burnt and faeces was thrown into a mosque but these incidents have not caused riots which means people are more matured, not reactive and more willing to listen.
This is a clear change in society and this gives us confidence that we can do without all those old laws now. Society has changed so the laws have to change also. In line with this, we also need modern policing. Changing the law is one thing but the police must also be modern in their policing so we have to spend money on training them and equipping them with all the modern police methods. If this can be done, it can run parallel with the law and in five years time we will be more confident and can discuss more changes.
Q: Problems are usually found only when a law is implemented, so is the government willing to rectify the flaws?
A: There is a committee that will be looking at it. We agreed that the president of the Bar Council and Suhakam should sit in that. They will be looking at it from now and it is up to them how often they want to meet – every six months, or three or every month – it is up to them.
Q: But isn’t it embarassing that three years of thought went into the act and people are already asking for amendments of a law that has just been passed and the committee would too?
A: This is a new law. It has to go through trial and error. If there are flaws, it is best that this panel looks at it rather than the government.
Q: Can the act be open to abuse?
A: However good an act, if the chief executive wants to behave like a despot, it will happen. You can’t codify how to avoid keterlanjuran (going overboard) However good a law is, if someone wants to abuse it, it will happen. You can’t codify something that you can’t stop from happening. That is why it is called abuse. A knife, a computer, laptop, the internet are all good things but you can abuse it. It is the same with the law. It is not immune to abuse.
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Moving forth with fortitude
By WONG CHUN WAI and MAZWIN NIK ANIS
sunday@thestar.com.my
Home Minister Datuk Seri Hishammuddin Tun Hussein is taking changes to the security laws in his stride.
THE Home Ministry is “home” to many laws that are contentious and controversial. But as the government had promised political transformation, Emergency Ordinances were rescinded and Restricted Residence and Banishment Acts were repealed. New and amended laws such as the Peaceful Assembly Act, the recently-passed Security Offences (Special Measures) Bill, Rela Act and amendments to Printing Presses and Publications Act are now taking their place in the ministry. In a candid interview, Home Minister Datuk Seri Hishammuddin Tun Hussein talks about the changes and their impact on the country’s political landscape.
Q: The Home Ministry is considered a formidable ministry. As Home Minister, how do you feel about this new (Security Offences) Act changing the political landscape of the country. In some ways, people say it is taking away your power.
A: It has been a painful journey that required a lot of courage. However, it had to be done, and now that it’s done, I am relieved. I am relieved the statute has been passed. Now I can talk about it and get it off my chest.
The changing landscape, both global and national, has forced us to re-look at ourselves. Whether the perception that powers of the minister have been taken away or these laws in the past have been abused is not an issue anymore. It should be a question of us looking at where we are now. To me, we are moving forward and I really believe these reforms reflect not only courage but the realisation that we need to reform.
> The Prime Minister has said it was hard for you to surrender the powers (of Home Minister under the Internal Security Act). Why do you find it hard?
It was not really difficult for me because I have never craved for power. Nobody who craves power should be in this position because it is a very powerful ministry – that’s the personal aspect of it. Secondly, it is not about giving up any powers either; it is about balance. The PM also said it is about balance between national security and national interest with rights and freedom. The changes that were brought by doing away with the ISA and bringing in the Security Offences Act, I feel that balance has been achieved. It is not a question of power but making sure the public is safe. The new Act is a breath of fresh air after how the ISA was demonised. It is an exciting time for me to navigate those waters but I also want to state that it is not easy to achieve that balance. We have managed to achieve this with the passing of the statute without causing too much anxiety among stakeholders who have, since Independence, been used to a particular landscape and mindset. It is the mindset change that is the most difficult and engagement cannot be done overnight.
> The United States and Britain have their Patriot Act and Anti-Terrorism Act. How is ours (Act) compared to theirs?
We can’t compare because at the end of the day, the US and the UK have been independent, democratic and matured longer than us. To get where they are now, many people had to die. People asking for more rights and freedom must also weigh that with a society that is in transition. We have different level of maturity in Malaysia and there are different needs. If you add racial and religious components, it becomes a very dangerous cocktail if you don’t get the balance right. If it was only for populist reasons that we do it, I wouldn’t be this happy.
> When we talk about terrorism threats in Malaysia now, what exactly are we looking at? Based on previous records, they (terrorists) have had meetings here before they carry out their acts.
Militancy in whatever form, with the flow of people and money across borders, raises a lot of concern which many people cannot grapple with at the moment. But grapple with it we have to because if we get it wrong, it is a zero sum game. In transnational crime, including terrorism, there is the source, transit and destination countries. We have been lucky in the past that Malaysia has only been a transit country. What I have to decide now as Home Minister is the extent to which we should be more aggressive towards those who are here and looking at the country as a transit. They should no longer regard Malaysia as a safe haven for them to plan, get money and then later look at us as a target. I will have to decide based on the power (I have), information and how fast police can capacity build, how many links we can build with countries whether they are source or destination countries. Shared intelligence will cut short the time in which I have to decide to take action.
> Why do some of these groups like to use Malaysia as a transit? Is it because Malaysia has offered easy access for foreigners to come in?
We are a safe place for them to sit down to conduct their business in, but they don’t realise that we allow for them to be out there. It is a case of the devil you know (rather) than the devil you don’t. If you compare our position with our neighbours, there is no difference. The fact that they transit here does not mean they don’t transit in other countries. The bombings in Bangkok and Bali are examples.
> On security measures at local level, the approach for Bersih 2 and Bersih 3 seem to have differed quite a bit. Can you explain?
We do not look at the April 28 gathering as a security issue based on the information we have and what we went through during Bersih 1 and Bersih 2.
At the same time we have the Peaceful Assembly Act, which gives clear guidelines to the Minister when it comes to gatherings of this nature. That is the difference between Bersih 2 and 3. And I have made it clear that I want to allow them to have the assembly as long as it’s peaceful and provided that we are responsible for our actions. Definitely, this is another approach that comes with the maturity of our democracy and with progress of a society. We have to make sure the balance is always there because if it tips one way or the other, then there is no turning back.
> The public perception is that during Bersih 1, there was over action by the authorities who declared the movement as outlaw and banned the wearing of yellow T-shirts. On hindsight, don’t you think it was a case of over action?
What happened in London (riots) when it was on fire, there was a lot of public outcry for no reaction on the part of enforcement agencies. Each country will have to make decisions based on their experiences. If something went wrong during Bersih 2, the allegation that we were over reacting could well be reversed to one as in the UK where there was no reaction at all. So again, it is easier said than done. At the end of the day the buck stops with me. I’m quite immune to a no-win situation when it comes to public popularity but I sleep at night with my conscience clear because I do what I feel is best.
But yes, I think maybe we overdid it but we learned from it. For Bersih 3, we have the statute (Peaceful Assembly Act). We now have guidelines. It is not about power but giving me confidence in fulfilling my responsibility wisely, responsibly and based on the law. That fits my own nature and value system. What good is power if there is no country for us to live in? What good is power if people don’t respect you for the power that you have? That has been seen in extreme cases such as the Arab Spring. So we are all learning. And if we don’t learn fast and take action responsibly, we are not being fair to the future generation.
> Do you feel the right to assembly and protest is here to stay?
It has become a part of the global culture which even Myanmar has recognised. It is refreshing. But what is good about Myanmar, and we are doing it too, it is not just opening up our gates to full-fledged demonstrations. It is based on a guarded and level approach which is not easy for people to understand. Both sides are dealing with society in transition. One side wants to remain in their comfort zone while the other wants total freedom and right to speak. The Home Ministry, as a responsible ministry in a responsible government, will have to find a balance. We took care of all stakeholders. In parliament, I don’t hear any argument that what we have done was irresponsible and not what the people wanted. The public must be aware that what we did is for them and to do it, we had to balance so many different wants, needs and interests.
> What about the police? How are they reacting to these changes as they too have lost some powers and this is new to them?
If it wasn’t for them, I don’t think we would have been able to table the new statute and do away with the ISA. I give full credit to the police and at the end of the day it is their expertise and responsibility that make us all safe, including me and my children. Unless there was a mindset change among the police, I don’t think we could have gone to second base. I don’t think the public and even I give the police enough credit. I told them there are many opportunities emerging from the new landscape. Why the police is in this position is because we have not had a major intake in the police force since 1969. The priority then was security but since then, we were involved in industrialising the country. The last thing on the minds of Malaysians were security issues. Police were not in the forefront but suddenly now they are positioned in the national key result areas (NKRA) to look at crime. This is the opportunity for them to build capacity, the time for police not to be looked at in the negative light.
> The government has released statistics on the drop in crime rates. Even (Penang Chief Minister) Lim Guan Eng has admitted that crime rate has fallen in Penang. But even with these figures, the perception is the public still do not feel safe.
I totally agree and I believe our challenge is to deal with perception especially in a climate where it is an uphill task. There is a lot of cynicism, political consideration and people trying to paint the whole police force using the same brush. That is not fair. You get one or two bad apples but accuse the whole police force of being corrupt. I have seen pretty good, dedicated and courageous personnel in the force. I believe there is a great future provided they do so quickly as time is of the essence. I worry if the priority is no longer crime then the attention given to police will be less. Again, I really think not enough credit is given to them.
> Are the changes taking place because the government is bowing down to political pressure from the opposition?
Far from it. They tried to whitewash something that we have been working on for the past three years. To say that doing this at the last minute and just before the coming general election, I say it is rubbish. We were looking at it three years ago but unfortunately the people we engaged with were not willing to speak up. The very people who are criticising us are the very people we had engaged with.
The PM had talked about either amending or doing away with the ISA as soon as he got into office which was years ago. How on earth can the opposition be talking about that (changes being done at the last minute because the general election is near)? It is about changing circumstances. The (old) laws may have been archaic but that doesn’t mean they are irrelevant. What we have done now is we have a new set of reforms. When you talk about the Political Transformation Programme it is not just about new security laws. We have also amended the Umno constitution and re-looked at the composition of Barisan Nasional. I hope the public can see we are sincere and serious.
It is not just about politics and, unlike the opposition who look at present political climate to champion a cause, Barisan looks at what we are able to do and national interest. I’ll let the public judge whether we are taking populist measures.
> Since you have said that Bersih 3 is not a security issue, what kind of police presence can we expect on that day?
Let me clearly state again that we are open to those who want to gather peacefully. We have proven that we are open to criticisms. Since it is not a security issue, I have allowed the owners of Dataran Merdeka, which is Kuala Lumpur City Hall (DBKL), to decide whether or not to allow the gathering to be held there. They have received three applications to gather, from an anti-free sex assembly, Bersih 3 and Perkasa.
I expect DBKL to be consistent (in their decision) but that doesn’t stop organisers from looking at other venues. Since it is not a security issue, if there is increase in police presence, it is only to assist them to get to the venue. We have made a clear stand that we allow peaceful assembly so we can’t say one thing and get the Act passed and do something else. We walk the talk.
> Of all the NKRAs would you agree that the most difficult to achieve so far has been the one on fighting corruption?
Yes. Next comes crime. We are dealing with intangibles. Yes, we have reduced the index but the intangible of perception that people are not safe is still something we are grappling with.
As for corruption, no matter what action you take we still have to deal with perception, legacies, mindset and baggage. I would not want to go on much about corruption as it is not under my purview but I believe if we get it right, there will be a lot of countries wanting to learn from us, even developed ones. It is a phenomenon that happens not only in Malaysia but everywhere.
I am proud the Inspector General of Police (Tan Sri Ismail Omar) is invited to many countries to share our experience in combating crime. It looks like we are getting some of it right. I am not saying all of it and we still have a long way to go but we are on the right direction.
> On the Printing Presses and Publications Act, why still the need for a permit?
We have amended the Act as far as (renewal of) yearly licence is concerned. At the end of the day both sides have to be responsible before we even look at doing away with permits, because when it comes to demands, the goal post always changes. No one will ever be satisfied with just what you have today. The media, having seen that the government is sincere in looking at the issue of free press, will also have to share the responsibility. Let us look at how, in a world that is so free when it comes to information and reporting, it does not actually affect the very fabric of Malaysian society when it comes to religion, unity, race. That is why I hope the media will be forthcoming. If you are more forthcoming, look at self-regulation and then we can look at (the issue of) permits.
> We have come to the last lap on the eve of the general election. Do you think in these three years and with the work that has been done, the public will thank you, or will they say it is too late?
Only the people can answer that but I hope they will look at who has actually shown consistency. In the past, Barisan has talked about success but under Najib’s leadership, he is talking about reforms. In that reform process, we walk the talk. As we speak, we are at the tail end of the transformation – the political transformation – and it is the hardest. I can’t see the opposition showing proof of what they have done in the states where they were given mandates. I believe people are disappointed with them when it comes to the issue of unity, foresight, consistency and ability to be a responsible government. I believe we have been dealt with unfairly but in the last three years, we have shown that at least we are serious, determined to walk the talk and consistent in what we have promised and what we have done. Whether it is enough depends on the people. That we will see in the 13th general election. Give us a big mandate and we will give you more of this.
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FAQ: The Prevention of Crime Act amendments
Nigel Aw
4:03PM Sep 25, 2013
Following the repeal of the Emergency (Public Order and Crimes Prevention) Ordinance 1969, Putrajaya is now turning to the Prevention of Crime Act 1959 (PCA) to facilitate preventive detention and detention without trial.
The authorities claim that the Emergency Ordinance had served the country well, particularly against criminal organisations, and thus certain elements of the law must be retained and thus Putrajaya is trying to push for several crucial amendments to the PCA during the ongoing Dewan Rakyat session.
How drastic are the changes?
Essentially, the core structure of the PCA is retained, whereby a person suspected of having committed a registrable offense shall appear before an inquiry.
The registrable offenses is outlined in the PCA and generally cover crimes such as triad activities, drug trafficking and organised crime. If a person is found guilty by the inquiry, he will then be placed on a registry and will be subject to certain conditions.
The proposed amendments stipulates two conditions that can be imposed by a board through an inquiry, namely a detention order and a supervision order.
A detention order allows for detention without trial for a period of two years. This order can be extended by another two years by the board.
This order can only be applied if the inquiry has concluded that the registered person has committed two or more serious offenses and had contravened the conditions of the person’s earlier supervision order.
A supervision order allows for a registered person to be attached with an electronic monitoring device and imposes conditions such as restriction on internet use or meeting with other registered persons.
The supervision order is applied on a person in the registry who the inquiry has concluded had committed two or more more non-serious offences and had not received such an order before or had previously received a supervision order but had complied with all conditions imposed.
Does the home minister still call the shots?
Unlike the repealed Internal Security Act 1960 and the Emergency Ordinance, the minister will no longer have a free hand in ordering detentions.
Instead, detentions under the PCA can only be imposed by a three-member board, which will be led by either a Federal Court judge, a Court of Appeal judge or a High Court judge.
Can you appeal against the board’s decision?
No. The newly introduced Section 15A(1) explicitly states that no judicial review is allowed against the board’s decision or findings in the exercise of its discretionary powers.
However, a judicial review is still applicable on matters concerning the board’s compliance with procedural requirements.
The requirements are spelled out in the newly included Section 7C that outlines the criteria a person must fulfill in order to be issued a detention or supervision order.
However, there is still a grey area, because while Section 15A(1) precludes judicial review for the board’s discretionary powers, Section 19A(2) allows for a High Court review of the board’s decision when ordering a detention or extending a registered person’s detention period.
Will a registered person have legal representation?
No. The newly introduced Section 9(5) stipulates that the registered person and witnesses at the inquiry have no access to legal representation. However, the registered person can have a lawyer when his own evidence is being taken and recorded by the inquiry officer.
A registered person will also be denied legal representation when the inquiry officer quizzes him in detention, under the newly introduced Section 9A.
What measures are there to ensure transparency?
The home minister will be required under Section 19E to submit an annual report on all activities related to detention orders under this law to Parliament.
The board and inquiry must also serve a copy of their findings on the person who is the subject of their investigation and will be decided on.
However, Section 21A allows the board, inquiry officers or any public servant to withhold information if they deem it to be in the public’s interest or for the safety of a witness, family or associates.
How long more will we have detention without trial?
At least five years. Section 19F states that the sections concerning detention without trial must be reviewed by the Dewan Rakyat and Dewan Negara every five years.
If the review is not conducted, the sections concerning detention without trial will cease to be in effect.
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Zahid: Preventive detention can be challenged
BY LEE YEN MUN
PUTRAJAYA: A detention order under the proposed amendments to the Prevention of Crime Act can be challenged in court, Home Minister Datuk Seri Dr Ahmad Zahid Hamidi has clarified.
He said that a clause under the amendments allows for a review of a detention order in the High Court. This means that a detention order can be challenged through the judiciary.
“Their (the suspects’) lawyers are given a chance to bring their case to court for a review,” Dr Ahmad Zahid told reporters after moderating a forum on crime prevention and public safety herelast week.
As reported earlier this week, the Bill carries a provision for a person to be detained without being charged or tried for up to two years.
The proposed Section 19A also allows the detention to be extended for another two years in the interest of public order, security or crime prevention.
Under the proposed new sections, 7B and 7C, a Prevention of Crime Board will be set up to determine issuance of detention orders subject to review by the High Court.
Dr Ahmad Zahid, who tabled the Bill to amend the Act in the Dewan Rakyat on Wednesday, stressed that the proposed law was targeted at criminals.
“I give my guarantee that the amendments are 100% targeted at criminals, and they should not be seen as a way to imprison parties with views against the Government,” he said.
“I have also proposed to the Cabinet (on Friday) to have a long-term programme in crime prevention that should include rehabilitating those who have served their punishment,” he added.
Minister in the Prime Minister’s Department Datuk Paul Low said the new laws were necessary to send a “strong message” to criminals to not mess with the law.
He acknowledged the public’s resistance towards preventive detention laws.
“We respect your (the criminals’) human rights, but we also want you to respect the rights of all citizens to be granted safety and security,” he said at the forum.
“I believe that detention is the last resort. The law is provided, just in case, and I am confident that the police will not use the law unnecessarily.”
Law Minister Datuk Nancy Shukri pointed out that the PCA was not the same as the Internal Security Act or the Emergency Ordinance.
“We are not going to bring back the draconian laws. We are coming out with very harsh laws to ensure the safety of our families,” said Nancy, a lawyer, in response to criticisms against elements of detention without trial provided in the proposed amendments to the PCA.
Federal Criminal Investigation Department (CID) director Datuk Hadi Ho Abdullah said the police have detected an increase in serious crimes since the repeal of the three laws.
Hadi said murder cases jumped from 781 cases to 935 cases within 20 months before and after the abolition of the emergency laws in 2011.
He said other crimes that had surged included firearms-related activities and extortion by gangs.
He said the police had responded to these by launching the Ops Cantas Khas last month, aimed at crippling underworld activities.
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‘Loopholes in Crime Act proposals’
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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Business operators laud move to amend Prevention of Crime Act
BY QISHIN TARIQ
KUALA LUMPUR: Business operators welcome the proposed amendments to the Prevention of Crime Act which will allow detention without trial.
Food stall owner Khairudin Mat Rosli (pic) said while everyone has the right to freedom, criminals must be dealt with accordingly.
He agreed with the country having more stringent laws to deal with people who have committed dangerous crimes like armed robbery or causing harm.
“While it (the Act) targets more dangerous criminals, it is also a deterrent for petty criminals. When the big fish is nabbed, this leaves them without their leaders,” he said.
He said he had seen his share of thefts and robberies but only recently had he seen criminals using guns and parang brazenly.
The Parliament had tabled a Bill to amend the Act to allow a person to be detained without being charged or tried for up to two years.
To be considered for detention, he must have committed two or more serious offences and the inquiry report must have sufficient evidence to support the findings.
Pharmacist Wong Yow Fui said it would make people safer to have laws to deal with crime pre-emptively.
He said that prevention is better than cure and that was why he had spent over RM30,000 to install security measures such as close-circuit television cameras, anti-theft sensors and alarm system in his pharmacy.
He added that it was the small-time criminals like shoplifters who consistently posed threat to businesses.
A worker at a goldsmith, who only wanted to be known as Leong, said he felt safe these days.
He attributed this to more police patrols and the installation of a bullet proof glass at the shop.
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