Wednesday, May 12, 2010

Police violates human rights...and abuses the law (and its safeguards) by using Detention Without Trial laws..against 2 young persons

To ensure rights of persons are protected, and that the police(government) does not abuse their powers of arrest and detention - limits are placed in the Federal Constitution (and also the Criminal Procedure Code) that gives the police the right to detain a person for not more that 24 hours. If further detention of a suspect, the police must go and get an order from an independent Magistrate (a judicial order)...and the only reason for continued detention is that 'the investigation cannot be completed within the period of twenty-four hours', and this does not mean any investigation...but an investigation that  requires the the detention of the said suspect - i.e. they need to further question and/or record statement from the suspect, they need the suspect for an identification parade, etc...

The general principle is that the police investigates first...and only then arrest and promptly charge the suspect...or release them.

Previously, the Magistrate could permit detention for up to 14 days , and many a Magistrate administratively (rather than judiciously) did grant long remand orders sometimes the full 14 days. Parliament, in its wisdom put an end to this - and now it is stipulated in law the longest period of remand that a Magistrate can grant on the 1st application (and the 2nd application)...and it also  depends on the severity of the offence that the suspect is being detained for..

But now, police seems to be going against the will and the intention of Parliament by resorting to Detention Without Trial laws that do not even require any judicial order for these laws allow the police to detain persons up to 60 days...and this is so wrong. It is a great violation of human rights and an abuse of the powers in law....when they start resorting to these Detention Without Trial laws to detain suspects for more than the permissible period allowed under criminal law.

It is not some famous political or civil society personality but 2 young persons, 20 years and 22 years old, but it is something that all Malaysians must protest this abuse by the police (done without any judicial orders/intervention).

Police can arrest suspects...but is only authorized to detain them for 24 hours. This is provided for in the Federal Constitution.
Article 5(4) Federal Constitution
(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate"s authority:

Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day:

Provided further that in its application to a person, other than a citizen, who is arrested or detained under the law relating to immigration, this Clause shall be read as if there were substituted for the words "without unreasonable delay, and in any case within twenty-four hours (excluding the time of any "necessary journey)" the words "within fourteen days":

And provided further that in the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court.
If the police wants to detain  a particular suspect for any further period - then they have to go and get Magistrate's order 



CRIMINAL PROCEDURE CODE

117.  Procedure where investigation cannot be completed within twenty-four hours.

(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.

(2) The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:

(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or

(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application.

(3) The officer making the investigation shall state in the copy of the entries in the diary referred to in subsection (1), any period of detention of the accused immediately prior to the application, whether or not such detention relates to the application.

(4) The Magistrate, in deciding the period of detention of the accused person, shall take into consideration any detention period immediately prior to the application, whether or not such detention relates to the application.

(5) The Magistrate in deciding the period of detention of the accused shall allow representations to be made either by the accused himself or through a counsel of his choice.

(6) If the Magistrate has no jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another Magistrate having jurisdiction with a view to transmission for trial by the High Court.

(7) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

The previous text is important because it shows us what changes Parliament made, and the reason amendment was clearly to prevent unnecessary long detention orders given by some Magistrates, on the application of the police. Now, a distinction is also made between serious and not so serious crimes.
[Am. Act A1132 - Prior text read - "The Magistrate before whom an accused person is produced under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another Magistrate having jurisdiction with a view to committal for trial by the High Court."]

BUT....
Two youths are being detained for 60 days under the Emergency Ordinance for suspected involvement in 300 snatch theft cases reported in the Klang Valley.

Deputy Cheras police chief Supt Abdul Rahim Hamzah Osman said the youths, aged 22 and 20, were detained since Thursday pending gathering of evidence to charge them in court.

He said the 22 year-old suspect was also detained for a case involving death.

"The investigation papers on their cases had been submitted to the public prosecutors' office for further action, but due to lack of evidence, they are detained under the Ordinance Act," he told reporters here today.

He said the two suspects were detained at separate locations after more than four-months on the run.

Police were looking for their accomplice, aged 22 and from Batu Caves, he added.

Meanwhile, a corporal from the Jalan Bandar traffic police, who were detained for insulting the modesty of a woman complainant, had been released on police bail.

The policeman was detained following reports lodged by two women over incidents at two road block four days ago.

- Bernama - Malaysiakini, 8/5/2010,
Two snatch thieves detained under Emergency Ordinance

1 comment:

Dinah said...

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