Jumaat, 27 September 2013

useful info on crime prevention related amendment bills

MCA opposes detention without trial
MCA disagrees with the two-year detention without trial included under the proposed amendments to the Prevention of Crime Act 1959 (PCA).

The party's vice-president Gan Ping Sieu opined that such detention was no longer suitable to be implemented.

"MCA is not in favour of the detention without trial order although we see government's effort to strike balance between combating crime and human rights," he told a press conference at Wisma MCA today.

Gan added that it was a shame that the Home Ministry did not include religious extremists and big-time Ah Long (moneylenders) under registrable offences.

Gov't wants to give you RM10k for fighting crime
Who says doing good does not pay?

If the Bill to amend the Criminal Procedure Code (CPC) is passed by Parliament, those who display “unusual courage” to  nab someone who had attempted, committed or abetted a crime could be rewarded up to RM10,000.

The catch, however, is that the crime must be punishable by death or imprisonment

Plus, only the home minister can decide if the do-gooder had displayed sufficient “unusual courage, diligence or exertion” to deserve the prize, which has been bumped up from RM1,000 in the existing Code. 

On the other hand, it does not pay to receive a Datukship from a self-proclaimed Sulu sultan or any other “Heads of State not recognised by the government”

According to a proposed amendment to the Emblems and Names (Prevention of Improper Use) Act tabled yesterday at the Dewan Rakyat, instead of accolades, it can land someone no less than five years behind bars.  

Meanwhile, the Bill to amend the Criminal Procedure Code (CPC) tabled by Minister in the Prime Minister’s Department Nancy Shukri, extends the government’s stance to be tough on organised crime.

The Bill provides new provisions for forfeiture of property related to organised crime, while lengthy sections are proposed to protect witnesses.

Anyone exposing a protected witness can go to jail for up to five years or fined up to RM10,000.

It also introduces the use of electronic monitoring devices for those released on bail to secure appearance during trial, instead of a bond at the court's discretion.

The device, attached to the accused, will directly transmit his or her location to a receiving centre at all times, and will be able to detect if the accused tries to tamper with it.

Tampering with an electronic monitoring device can be punished with two to 10 years in jail, with costs of damage to be borne by the acccused.

Amendments 'most serious assault on human rights'
COMMENT Lawyers for Liberty is extremely shocked and concerned with the rash of proposed criminal law and procedure amendments with far-reaching implications that were tabled in Parliament yesterday.

These amendments constitute the most serious assault on human rights and established legal principles since 1988 after the constitutional crisis and Operation Lalang. It is all the more deplorable since these very serious amendments were done in secret and without any consultation with opposition members of parliament, civil society and the Malaysian Bar.

The Prevention of Crime (Amendment & Extension) Act 2013

The bill seeks to re-introduce detention without trial when all Malaysians thought they had seen the last of this most draconian legislation with the abolishing of the Internal Security Act (ISA) and the Emergency Ordinance (EO).

Under clause 19A, a person can be detained without trial for up to two years, which can be renewed indefinitely.

The amendments also disallow substantive judicial review which would mean the detention order cannot be challenged in court, safe for procedural matters, which are effectively pointless. The amendments also deny legal representation to the detainee except when his/her own evidence is taken during the inquiry process.

NONEFurthermore, the government has also surreptitiously amended the entire preamble of the Prevention of Crime Act (PCA) to include the provision under Article 149 of the federal constitution that the country is “threatened by a substantial body of persons inside and outside Malaysia to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property”, thereby justifying detention without trial just like the ISA and EO.

These amendments are absolutely scandalous and an antithesis to our democratic and fundamental rights to freedom from arbitrary detention and punishment, due process, rule of law and legal representation.

It goes without saying that the amendments are unconstitutional, especially since Malaysia is living in peace time with no threats of subversion, insurrection or civil unrest as envisaged by Article 149 of the federal constitution.

azlanBy these amendments, Prime Minister Najib Abdul Razak had not only broken the promise he had made on Sept 16, 2011 to respect human rights and liberties when he announced theabolishment of the ISA and EO, he had also persistently lied and misled the public when he continuously affirmed that his government would respect human rights and liberties and will not revive detention without trial.

Although the government may argue the amendments will only target organised crimes, it is almost certain from the government’s appalling track record on the use of oppressive laws like the ISA, Sedition Act and Peaceful Assembly Act - the PCA will be misused against opposition politicians, dissidents and civil society activists. See for example how MP Michael D Jeyakumar and five other PSM activists were detained under the EO in 2011.

The Penal Code (Amendment) Act 2013

Lawyers for Liberty is further extremely concerned with the proposed amendments to the Penal Code, particularly clause 121E(1) for mutilating, destroying  or insulting any national emblem or flag; and clause 121E(2) for using, recognising or promoting the use of any flag other than the official flags - both of which carry a mandatory punishment of  imprisonment between five to 15 years and fine. 

Needless to say, these new offences transgress freedom of speech and expression as guaranteed by the federal constitution and are out of place in a modern and democratic Malaysia.

Further, the proposed punishment for these offences are extremely harsh and disproportionate compared to the rather minor nature of the act of civil disobedience.

In addition, clause 440A outrageously criminalises as vandalism common acts of political and human rights activism and public communication like drawing, painting and writing on both public and private property; affixing, displaying, hanging and exhibiting poster, placard, banner and bunting unless they were done with the written authority or consent of the public/private owners - offences that can be punished with imprisonment for up to three years. 

The requirement for written authority is of course unrealistic and extremely burdensome and is just another underhanded tactic designed to frustrate the opposition and civil society.

The Criminal Procedure Code (Amendment) Act 2013

Lawyers for Liberty is also further extremely concerned with the proposed amendments to the Criminal Procedure Code (CPC), particularly clauses 265A, 265B and 265C that essentially allow for witnesses to testify in secret where the accused person and his/her counsel would not be able to see, hear or cross-examine the witnesses.

Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial - that justice must be done openly and transparently; the accused must be afforded an opportunity to challenge the evidence presented; and the guilt against the accused must be proven beyond a reasonable doubt.

ERIC PAULSEN is the co-founder and adviser to Lawyers for Liberty.

FAQ: The Prevention of Crime Act amendments
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 orderand a supervision order.

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.

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 deci

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