– Datuk Kuthbul Zaman Bukhari and Dr Denison Jayasooria
The Malaysian Insider
October 01, 2013
Proham has identified discrepancy and inconsistency between what is said and what is written in the proposed amendments to the Prevention of Crime Act (PCA) and calls on the Federal Government to withdraw the bill from Parliament for further consultation and redrafting.
Proham hosted a discussion on the proposed amendments to the PCA yesterday. The review was undertaken by Datuk Kuthbul Zaman Bukhari who led the discussion –paragraph by paragraph.
We identified a number of major concerns and acknowledge that this proposed piece of legislation is a clear backward step away from human rights compliance. We are of the opinion that this is a major assault on human rights since Datuk Seri Najib Razak took office as Prime Minister. We also note that this is inconsistent with the promises he made when he took office as the Prime Minister and in the promises for democratic reform made during the general election (GE13).
We also note that there are major discrepancies and inconsistencies between the verbal statements and assurance made by the Prime Minister, Home Affairs Minister and other ministers and the actual text of the proposed amendments to the PCA. We are told verbally that this new legislation is not a return of the ISA, that this is focused only on criminal-violent gangs and that the decisions will be made by a judge.
Widening the scope of the proposed legislation
However in reading the proposed legislation one is shocked by the blatant disregard to human rights and widening the scope of the proposed legislation. The proposed bill before Parliament which seeks to amend the PCA (1959) has a new preamble which enlarges the scope of the legislation from the original which is a specifically focused only on the “control of criminals, members of secret societies and other undesirable persons”. The new preamble widens this to add “… to cause a substantial number of citizens to fear, organised violence against persons or property”.
Pursuant to Article 149 of the Federal Constitution
What is even more of a major concern is that this proposed PCA is now being legislated “… in pursuant to Article 149 of the Federal Constitution”. The explanatory statement in point 3 states clearly “in order to allow the introduction of detention without criminal charge or trial as previously provided in the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 …and the Internal Security Act 1960 (Act 82), Act 297 is to be changed to a law made pursuant to Article 149 of the Federal Constitution”.
As this proposed bill is made in pursuant of Article 149, the provisions therein are inconsistent with all the basic and fundamental human rights guaranteed in the Federal Constitution.
It must be noted that the original PCA (1959) which the Police Commission did not call for its repeal when it did the EO, is just an act of parliament which focuses on crime control, with some consistency to fundamental liberties and with judicial review.
No judicial review
Proham is also concerned that the proposed bill removes judicial review as per the introduction of a new section 15 A which states “there shall be no judicial review in any court”.
Further, the new section 7B provides for too many options for who can be the chairman of the Prevention of Crime Board. It does not just qualify the chairman as a current sitting judge but indicates that the chairman could be appointed from a range of options namely “… who shall be or have been or be qualified to be, a judge”. The options are too wide and there is a major difference if the chairman is a current sitting judge. There are no qualifications of the two other members and this is not good.
Detention without trial
Proham is concern that the proposed legislation allows for indefinite period of detention in the new part IV A, 19A (1) “… for a period not exceeding two years… for a further period not exceeding two years at a time…”
Access to legal counsel and protection
Proham is also concerned that legal access to counsel is denied as the provisions by the amendments of section 9 (d) a new (5) also in the new section 9A (2).
Proham is concern with new section 9A (2) that there is no review of witness statements in order to check the reliability or cross-examination of any person giving evidence on the case as this can be easily abused.
Proham is concern over the double jeopardy issues as per the new section 7c “… two or more serious offences, whether or not he is convicted thereof…”
Proham input to Home Ministry neglected
Proham participated in two dialogues with the Home Affairs Ministry (August 24 and 28, 2013) on matters pertaining to serious crime especially gangs and violence. In both dialogues, Proham highlighted the findings and recommendations of the Police Commission Report (2005) to strengthen investigative Police and use the Prevention of Crime Act (1959).
We affirmed that detention without trial, removing judicial review and denial of access to legal counsel is not the most effective way of crime prevention. We noted that the Police Commission report documents major abuses of power when human rights is sidelined.
Malaysia’s position compromised for UPR Review at the UN
These proposed amendments to PCA and the curtailment of fundamental liberties will adversely affect Malaysian’s standing at Universal Periodical Review (UPR) process at the UN Human Rights Council during the 17th session on October 24, 2013 from 2.30pm to 6pm in Geneva.
At the last UPR review process held on February 11, 2009, Malaysia gave a number of assurances to the global community that it will strengthen human rights compliance in Malaysia. Furthermore, Malaysia is currently a member of the Human Rights Council and the proposed PCA amendments are inconsistent with Malaysia’s global position as a promoter of human rights and moderation.
Proham recommendations on PCA
Therefore, Proham calls of the Federal Government:
Firstly, to withdraw the current proposed amendments to the PCA
Secondly, to further engage with stakeholders like Suhakam and Bar Council
Thirdly, to propose new amendments which is closer to the original PCA:-
· Keep the PCA specific for the “control of criminals, members of secret societies”,
· Enlarging its coverage to the whole of Malaysia,
· Introduce electronic monitoring,
· Remove the role of the Minister and replace it with the Prevention of Crime Board for purposes of registration for police supervision and electronic monitoring.
Fourthly, Proham is not supportive of Federal Government reintroducing detention without trial or restricting judicial review or denying suspects access to legal counsel.
Fifthly, Proham really hopes that the Federal Government will empower and enable the Police to undertake their work of crime control in compliance with human rights standards and undertake world class policing in modern-democratic Malaysia. – October 1, 2013.
* Datuk Kuthbul Zaman Bukhari is an exco member of Proham and Dr Denison Jayasooria is its secretary-general.