PCA’s detention without trial – A continuation of Mahathirism for UMNO electoral campaign

by William Leong and KPRU

Rakyat, always the victims of UMNO’s power struggle

Last week on October 3, 2013, Rakyat has witnessed the return of detention without trial 2.0, this time disguised itself as the Prevention of Crime (Amendment and Extension) Bill 2013, which has been passed with a voice of majority by Barisan Nasional’s Member of Parliament in the Dewan Rakyat past midnight, with the Parliament clock once again being stopped in order for it to be voted on for the third time since one and a half years ago. The amendments of PCA were indeed stringently opposed by Pakatan Rakyat lawmakers, SUHAKAM, the Malaysian Bar, the Sabah Law Association, the Advocates Association of Sarawak and human rights advocates as it allows the return of detention without trial for years and this is clearly affronting to principles of justice and open for abuse. Above all, the introduction of amendments and extension of PCA has not only backpedaled the Malaysian Prime Minister Datuk Seri Najib Razak Tun Razak’s political transformation programme – as he claimed that the abolishment of the controversial ISA in less than two years ago was part of his transformation programme and to uphold human rights – but also further entrenched his authoritarian administration.

Equally disappointing, Najib seemingly acquiesces in his UMNO colleague’s statements which obviously disregard of the rule of law and indifference to human rights. The Minister of Home Affairs, Datuk Seri Dr Ahmad Zahid bin Hamidi in particular, was reported to have made several shocking remarks over the recent amendments to the PCA. In a 20-minute audio recording of his speech delivered at the Malacca International Trade Centre in Ayer Keroh, Malacca on October 5, 2013 obtained by Malaysiakini, Ahmad Zahid was reported to have said that police are to shoot first and ask questions later. He was then proudly declared that the amendment to the PCA resurrecting detention without trial was his own law and moreover, in the event there is no evidence or there is insufficient evidence, the suspects would be put away for two years.[1] Such extravagant statements have triggered heavy criticism from both legal and human rights experts, there were even some of whom, including international body Human Rights Watch, urged for his sacking.[2]

The Malaysian Bar released its press statement on October 8, 2013 to deplore and condemn the statements by Zahid as such remarks have revealed his complete disregard for the rule of law, unconcern of human rights, as well as lack of respect for debate and argument in Parliament. The Malaysian Bar argued that his irresponsible statements could be interpreted to support extra-judicial killings by the Police.”[3] KEADILAN’s vice-president, who is also the Padang Serai MP, N Surendran also slammed on the ministry’s policy that suspected criminals are shot without warning, and said that shooting to kill suspects without warning actually breaches the law of the country as it amounts to murder under Section 302 of the Penal Code.[4]

As the incident unfolded, it was not merely about Zahid’s insensibility or incapability in familiarizing with the basic principle of law, but in fact reflected the arrogance of the UMNO’s minister. It should also be borne in mind that the reporters that attended the event, in which supposed to be a government function briefing on security matters but ended up an UMNO affair, were unceremoniously kicked out towards the end of his speech and threatened not to report the contents or otherwise he would shut down their newspapers. Meanwhile, Minister in the Prime Minister’s Department Shahidan Kassim, who was at the event when Zahid made the contentious speech, blamed the media and journalists for being unethical to report on a closed-door event that was not for public consumption, despite that the event was initially open to media as tables were allocated for the journalists.[5]

Apart from this, the racist remarks that allegedly made by Zahid claiming that the majority of gangsters were Malaysians of Indian descent whilst the victims were of another race, and therefore nothing wrong in arresting or shooting them, should also be highlighted. He then also mentioned the fatal shooting of five suspected Indian gangster in Penang in August and chastised a deputy minister, without naming him but was obviously referring to the Deputy Minister in the Prime Minister’s Department, P Waythamoorthy, for raising questions about the incident. Such sensitive and outrageous statement, particularly in a multiracial heterogeneous society of Malaysia, is nonetheless the most common utterance of UMNO’s politicians as it perceived as the most effective weapon to continually garner power to strengthen their political position within the party, as well as in this country in large. With less than two weeks to go before the UMNO supreme council elections, being one of the current vice-president of UMNO, Zahid has indeed a lot of crowd pleasing to do to secure and defend his position in UMNO, and the tactics he appears to employing is firstly to voice displeasure against certain segments of Malaysian society (read, the non-Malays) while pleasing other stakeholder in the nation, and secondly media bashing, trying to frame himself as being bigger supporter of Mahathirism. Hence, in our point of view, the amendments of PCA to re-introduce detention without trial is to serve as a mean for certain interested parties and individuals to achieve their political objectives, but not for the sake of rakyat’s safety and national security.

Detention without trial 2.0

Like the notorious ISA, which historically had been abused to hold political dissidents without charge, we opine that the PCA may merely do little to curtail crime but is surely threatening civil liberties and human rights. Under the PCA, the indefinite detention without trial has not only been resurrected, but the enforcement of PCA would also be further extended to include Sabah and Sarawak. In addition, there are provisions for presumption of guilt and prohibition of substantive legal recourses or judicial review, meaning that the detention order cannot be challenged in court, as well as to deny legal representation to the detainee except when his/her own evidence is taken during the inquiry process.

These amendments have blatantly violated key articles of the Universal Declaration of Human Rights (UDHR) as it denies the accused the right to a full and fair trial in an open court.[6] Article 9, 10 and 11 of the UDHR have articulated that: “no one shall be subjected to arbitrary arrest, detention or exile”; “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”; and “(1) everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” As a member of the United Nations, Malaysia however has failed to uphold the fundamental freedom and human rights mentioned in the UN Charter.

Furthermore, there is also a board, namely Prevention of Crime Board established under the newly minted PCA. With the creation of this board, the arbitrary power of the Home Minister is now removed and vested in an equally arbitrary proposed three-man board led by either a Federal Court judge, a Court of Appeal judge or a High Court judge, which later the number of advisory board members was allowed to be increased from three to five members. The Board can make detention order for a period of two years if it believes that the registered person has committed two or more serious offenses, whether or not he is convicted thereof, if the inquiry report finds sufficient evidence to support such finding, or contravened a supervision order. In addition, the newly introduced Section 15 A(1) explicitly states that there is no judicial review allowed against the decision of the Board in relation to the supervision power, but only applicable on matters concerning the board’s compliance with procedural requirements. Contradictory enough, the procedures are in fact determined by the Board itself. Another grey area is that 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.[7]

 

Do we really need detention without trial to combat skyrocketing serious crime?

The rationale of the authorities is that the repealed EO and ISA has served the country well, particularly against criminal organisations, and thus pushing for the amendments to PCA to bring back certain elements of the law, namely detention without trial is crucial and essential.

Before this, the Minister of Home affairs, Dato’ Seri Dr Ahmad Zahid Hamidi promised to present data and statistics for Parliament and the public to justify his statement that 90 per cent of organized crimes were carried out by ex-detainees who were held under the Emergency (Public Order and Crime Prevention) Ordinance 1969 (EO) and thus proving that the repeal of EO and ISA was the factor of the spike in hardcore crime. Yet, now that the PCA was passed, there is no empirical evidence in sight.

The perplexing question remained is that, how effective is detention without trial in combating crime? There is an important fact to be noted here that EO had never proved any of its detainees wrong in any court in Malaysia ever since its inception. In other words, none of EO detainee was convicted by the court for the reason they were detained.[8] This explains why the repeal of EO enabled the just-released 2,600 EO detainees and their loyal followers, altogether accounting some 266,000 criminals roaming on the streets, as suggested by Home Minister.[9] Conspicuously, the root cause of the crimes surge is not the repeal of either EO or ISA, but is precisely the crippled law enforcement process and the judicial process for decades in this country, as pointed out by KPRU in previous analysis, titled “Two Cases per Week on Average for the First Seven Months of 2013: Gun-killings are not merely a security issue”[10]. Such utterly poor policing is the main factor that caused those seemingly guilty suspects have yet to be arrested and charged in court with irrefutable evidences. Moreover, the prevailing preventive detention law should be recognized as a crutch that weaken the law enforcement, which comprising the process of investigations, evidence collection, prosecution and judicial proceedings.

In short, what Malaysia citizens need is not a convenient tool or temporary measure for the executive to simply persecute individuals in addressing the spate of crime, but is essentially a high quality policing that is capable of curbing crime rate in a long run without violating fundamental rights of citizens.

William Leong Jee Keen, Member of Parliament for Selayang

Political Studies for Change (KPRU), Think Tank


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