Civil Society Perspectives and

Responses to

Prevention of Crime and Penal

Code Amendments in Malaysia

Prema Devaraj

Aliran

12 November 2013

Process of passing these

laws…

1. Done in secrecy

2. Lack of consultation

3. Bulldozing through

Process of passing these

laws…

1. Done in secrecy

2. Lack of consultation

3. Bulldozing through

What is/was the government’s intent?

Government’s

Justification

• To strengthen the government's initiative to

crack down on organised crime

• Amendments will result in heavier

punishments and provide clearer provisions

to tackle crime.

In addition to PCA

amendments, Penal Code (amendment) Bill 2013

Criminal Procedure Code (amendment) Bill 2013

Evidence (amendment) Bill 2013

Corrosive and Explosive Substances and Offensive Weapons (amendment) Bill 2013

Security Offences Special Measures (amendment) Bill 2013

Prison (amendment) Bill 2013

Emblems and Names (Prevention of Improper Use) (amendment) Bill 2013

Common Gaming Houses (amendment) Bill 2013

Lotteries (amendment) Bill 2013

Pool Betting (amendment) Bill 2013

Crime in Malaysia Pre Elections

• Government says crime is down.

• Drop in crime recorded from 2009-2011 following the launch of Reducing Crime National Key Result Area (NKRA) – due to GTP which allocated greater resources to patrolling and fighting street crimes.

• Public concern blamed on sensationalisation by the media.

Post Elections

• Crime has increased.

• Due to release of ex EO

detainees

Home Ministry

Crime

Statistics *

The overall crime rates in the country

have decreased from 153,669 cases

last year to only 111,020 cases till

September this year.

The statistics for crime on 2013 also

reflected a continued reduction in

overall crime rates since 2008.

* Written answer to YB Er Teck Hwa (DAP-Bakri)

Malaysiakini 29/10/13

In tackling crime, the

focus should be on

• Improving police professionalism/reform the

force.

• Proper training (better investigative skills)

• More support and resources into improving

efficiency and effectiveness (ie implementation

and enforcement)

• Support for victims.

• Rehabilitation for offenders.

But instead…amendments

which

• Allow for preventive detention for 2 yrs- renewed

indefinitely PCA 19A

• Detention order cannot be challenged in court PCA

S15

• Restricted access to legal counsel to only when

accused gives evidence PCA S9

• Board/Inquiry Officer need not disclose facts or

produce documents which he considers to be

against public interest/compromise protection of

witness etc. PCA 21A

…amendments tabled

cont’d • Broad range of associations (harboring, consorting with, recruiting

persons, participating, accepting gratification) with organised criminal

group PC S130 – until the contrary is proven a person shall be presumed

to be a member of an organised criminal group

• Punishment for civil servants who disclose info (PC S203)

• Accused & counsel can no longer see, hear or cross examine directly

witnesses who make allegations against the accused (CPC, 265A, B ,C)

• Service providers compelled to cooperate in the act of interception– no

guidelines on interception/exempt police from answering questions re

interception (SOSMA S6(2))

• Those remanded under PCA will be detained up to 60 days in police

lockup/court house lock up (PA S7)

These amendments

effectively…

Introduce provisions in the legislation which are anti human rights. Allows the state to avoid its responsibilities in upholding basic rights and standards of fair trial. Allows huge scope for abuse of power and covering up of police incompetency.

Government

Assurances

15 Sept 2011 PM announces the repeal of the Emergency

(Public Order and Prevention of Crime) Ordinance 1969, the

Banishment Act 1959 and the Internal Security Act 1960

“No individual will ever be detained simply due to political

ideology,”

The PM envisioned a Malaysia where “peace and public order

are safeguarded in line with the supremacy of the

Constitution, the rule of law and respect for basic human

rights and individual rights”.

Government assurances I will never agree to preventive detention, I

am a strong advocate of the present laws

without preventive detention…

“I have full confidence

that enforcement officers can

do their jobs without having

to rely on such draconian laws"

He added that we should also adhere to the maxim that it is

better to let more guilty people go free than to send an

innocent man to jail.

AG Tan Sri Abdul Gani Patail July 16, 2013. Malaysian Insider

Government

Assurances

With the PCA, you can’t go wrong. You can’t use it against politicians unless, of course, the politician concerned is involved with the underworld or other criminal activities… In my mind, there is no way the PCA can be misused because it is very specific and focused solely on criminals.

Home Minister Datuk Seri Dr Ahmad Zahid Hamidi

The Star 21/10/2013

Government

Assurances

“……..we are not fighting politicians.

We are fighting organised crime…

We are fighting people who know how to organise crime

sometimes better than the police….”

"It is also important for us to understand that human rights need to

be observed to ensure there's no arbitrary detention, no torture

and the conditions of detentions are proper according to the

human rights level," he said.

…..However, I believe detention is the last resort and I am

confident the police will not abuse that law," he said.

Star 28/9/13 Paul Low defends Prevention Crime Act

Government

Assurances

Re Section 203A Disclosure of Information

Law Minister admitted that

• the provision was too general +

• she would seek further revisions

through the AGC Malaysiakini 23/10/13

• “It is because we are the implementers. Only when we are the

implementers, we can see how serious the matter is……So I

urge the opposition and everybody to understand us and give it

a go first,” said the minister. FMT 22/10/13

Law Minister re PCA

amendments and public

concerns over the return of

detention without trial

"We will try our very best not to use that provisions

under the PCA. We will look into other means of

charging the individual under other existing laws.

"I hope that is going to happen as we are also very

concerned (about the possibility that) detention

without trial will be abused. We hope the authorities...

(will charge) the offender first," she said.

• Malaysiakini 7/11/13

Government Assurances

Government Assurances

Actually who is in

charge?

A Government U Turn?

Home Minister said that the government is willing to make further

amendments to the controversial Prevention of Crime Act (PCA)

after engagement with critics.

According to The Star (17/10/13), Ahmad Zahid said the ministry

will engage the Bar Council and NGOs unhappy with the recent

amendments to the PCA passed in Parliament, following

instructions from the prime minister.

So, when/how is this engagement to take place?

Before or after the law has been gazetted?

What is the

track record

on preventive

detention?

1987 Ops

Lallang

Activists from political

parties, parliamentarians,

civil rights leaders,

educationists, lecturers,

church workers, Islamic

preachers, engineers,

researchers, lawyers,

trade unionists, and NGO

- over 100 people –

a threat to national security

Lim Kit Siang, Karpal Singh, P Patto, Lim Guan Eng, V David, Lau Dak Kee, Chian Heng Kai, Chan Kok Kit and Tan Seng Giaw; Mohd Sabu, Khalid Samad, Suhaimi Said, Mahfuz Omar and others …

Were these

people threats

to national

security

Or

were we

witnessing

actions by the

state

to exert control

2008

2007

2001

2011- EO6

• PSM activists first detained (with 24 others) under allegations of weapons on a bus

• Remanded for 7 days under Section 122 of the Penal Code (collecting arms with the intention of waging war against the Agong)

• 6 re-arrested under the EO- as prime movers of BERSIH

How are we to view

Government assurances?

Some Responses

Statements/Press Conference

• Lawyers for Liberty

• Proham

• Suhakam

• Suaram

• Aliran

• Malaysian Bar

• Sabah Law Association

• Advocates Association of Sarawak

• Joint Action Group for Gender Equality

• Bersih

Protest in Parliament

Protest outside

parliament

• Ex detainees/Opposition MPs have spoken out against these amendments

• YB Karpal Singh petitioned the

Agong not to endorse the PCA (Oct 18 2013)

• On Line Media and comments, bloggers

• Public Talks being organised about amendments

• Signature campaign/petition has started

• Teater Bukan Teater – Bilik Sulit

• Coalition of Malaysia NGOs (COMANGO) at Universal Periodic Review

Where are the checks and balances

needed in the current amendments

which can limit or stop abuses of

power?

While the concern over crime and

public safety is real,

Post election fatigue?

NGO burn out?

So many battles on different fronts (TPPA, GST, deaths in police custody, police shootings, corruption,

politicisation of race and religion, EC, migrant workers, min wages, env, etc

etc)?

Basically fighting the same old regime

What can civil society do?

In a nut shell…

Engage with government where

possible.

Raise awareness of the public/MPs.

Advocate principles of good

governance/human rights in

Government.

We have to help it bend towards justice Be vigilant and persevere