| Press Release | Investigative Powers of the Police Must Not be Abused to Intimidate, Harass, Oppress and Terrorise |
| Thursday, 02 April 2015 04:21pm | |
 The Malaysian Bar condemns the police dragnet that has continued unabated over the past two months.
As
at 1 April 2015, about 159 persons have been arrested for various
alleged offences under the Sedition Act 1948, Peaceful Assembly Act
2012, Penal Code, and Communications and Multimedia Act 1998. In many
of these cases, the police unjustifiably detained individuals overnight
and unnecessarily sought remand orders for extended periods of
detention. In some cases, the arrest was preceded with, or followed by,
intrusive raids by the police of the workplace of the individuals, or
premises of third parties. There have also been reports against the
police for disproportionate use of force, as well as allegations that
the police denied individuals legal representation upon arrest.
The
police continue to grossly misconstrue their investigative powers under
our laws — such as the Criminal Procedure Code — and to exercise these
powers in an oppressive manner. Investigative powers are not meant to
be used in order to begin gathering evidence against an individual.
Further, investigative powers cannot be used to arrest or detain
individuals, or to seek remand orders, only for the purpose of gathering
evidence.
The
detention of individuals overnight should only be to investigate based
on evidence that the police have already gathered, and a remand order
should only be sought to complete investigations, where there is a risk
that the individual may tamper with evidence, or where the individual is
likely to be a flight risk. The use of investigative powers to detain
individuals under any other circumstances is a blatant abuse of these
powers and should be seen as an act of intimidation, harassment and
oppression. The overnight detention of individuals and extended remand
orders without any basis would only serve to terrorise individuals, and
would thus be wholly deplorable.
The
conduct of the police over the past two months, and the slew of
complaints against them, give rise to an irresistible inference in the
public mind that the police are abusing their investigative powers. The
most recent occurrence was the police raid of the office of The Malaysian Insider
(“TMI”) news portal on 30 March 2015, which culminated in the arrest
and overnight detention of managing editor Lionel Morais, Bahasa
Malaysia news editor Amin Shah Iskandar, and features and analysis
editor Zulkifli Sulong, and the seizing of their laptops and mobile
phones; as well as the arrest on 31 March 2015 and overnight detention
of TMI chief executive Jahabar Sadiq and The Edge Media Group chief
executive Ho Kay Tat after they had voluntarily presented themselves at
Dang Wangi police station to assist in the police investigation. The
police application for the remand of Lionel Morais, Amin Shah and
Zulkifli Sulong was refused at 12:45 pm on 31 March 2015, but they were
only released at approximately 6:00 pm that day, which makes a mockery
of the rejection by court of the remand application. The police did not
seek a remand order for Jahabar Sadiq and Ho Kay Tat, who were then
released on 1 April 2015.
It
was reported that the police are investigating these five individuals —
under Section 4(1)(c) of the Sedition Act 1948 and Section 233 of the
Communications and Multimedia Act 1998 — over the publication of a news
article by TMI on 25 March 2015 concerning a decision made by the
Conference of Rulers on the implementation of hudud laws upon the
passing of the Syariah Criminal Code (II) (1993) 2015 Enactment by the
Kelantan State legislature. Subsequently, it was reported that a police
report had been made by Dato’ Sri Syed Danial Syed Ahmad, Keeper of the
Rulers’ Seal, denying the said decision had been made by the Conference
of Rulers. It was reported that TMI officials did not deny publishing
the news article, and were willing to cooperate in the police
investigation.
Thus,
the action taken by the police against the five individuals defies
logic, reason and credibility. If the article was erroneous, then all
that was required was for TMI to make the necessary correction or
clarification and, if necessary, to withdraw or retract the article.
There was no necessity for the police to arrest the five individuals,
detain them overnight and seek a remand order.
Further,
with regard to the allegation that the said article published by TMI
was seditious, TMI had reportedly identified the author (and did not
deny publishing the article). Accordingly, the police needed only to
rely on the published version of the article for investigation purposes,
since the intention of the author or publisher of the article, or the
truth of what was published, are not defences under the Sedition Act
1948. However, this is one of the reprehensible and repressive features
of the Sedition Act 1948. Again, there was thus absolutely no need for
the police to arrest and detain the five men overnight, and apply for
remand orders, when all they needed was to ascertain that the article
had been published by the five men.
Moreover,
as the subject matter of the allegation was the published article that
was readily available to the police, there was also no basis whatsoever
for the police to raid the office of TMI and to seize property belonging
to the TMI officials. This draconian exercise of power by the police
is inexplicable, and raises the question of whether the raid and seizure
were for reasons or purposes unrelated to the investigations under the
Sedition Act 1948 and the Communications and Multimedia Act 1998. If
the raid and seizure were actuated by ulterior motives, the conduct of
the police would be decidedly objectionable and would smack of bad
faith.
Apart
from this incident involving TMI, there have been other recent
troubling incidents that lend to the inference of widespread abuse of
investigative powers by the police. Some of these are as follows:
The
Malaysian Bar expresses deep and serious concern regarding the reports
of how the police have acted, particularly in the incidents referred to
above. The reported heavy-handed tactics, disproportionate use of
force, and open display of weaponry by the police, under the cover of
night, in effecting the arrests of Hishamuddin Rais, Mat Sabu and Khalid
Samad beg the question whether this is now part of the police’s
standard operating procedure for arrest.
The
Malaysian Bar does not condone the exercise of police powers in
arbitrary manner. Based on the media reports, the police have displayed
a worrying lack of restraint and proportionality.
The
Malaysian Bar strongly urges the police to respect the rule of law and
to stop abusing its investigative powers to intimidate, harass, oppress
and terrorise individuals. The abuse of investigative powers is
inimical to the right to life and liberty guaranteed by Article 5 of the
Federal Constitution; and the rights to freedom of speech, freedom of
association and freedom of assembly enshrined in Article 10 of the
Federal Constitution. These constitutional liberties cannot be ignored
by the police with impunity.
It
is time — indeed it is long past the time — for the police to move away
from a “police state” mindset, and to adhere to its own 208th Police
Day Celebration theme, “Polis dan Masyarakat Berpisah Tiada” (“The
Police and Community Never Divided”).
Steven Thiru
President
Malaysian Bar
2 April 2015
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