Sunday, April 05, 2015

Bar:- Investigative Powers of the Police Must Not be Abused to Intimidate, Harass, Oppress and Terrorise

Press Release | Investigative Powers of the Police Must Not be Abused to Intimidate, Harass, Oppress and Terrorise
Thursday, 02 April 2015 04:21pm
ImageThe 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:

(1) It was reported that YB Nurul Izzah, Member of Parliament for Lembah Pantai, was arrested on 16 March 2015 and detained overnight for an offence under Section 4(1) of the Sedition Act 1948, for delivering an allegedly seditious speech in the Dewan Rakyat on 10 March 2015.  It was also reported that she had voluntarily offered to cooperate with the police in their investigation.  Again, as the allegation was that she had committed sedition, all the police needed for their investigation was the verbatim recording of her speech in the Dewan Rakyat, which is contained in the relevant hansard of the Dewan Rakyat, and to view the video recording of her speech.  There was therefore no reason at all to arrest and detain her overnight; 

(2) It was reported that Eric Paulsen, the Executive Director and Co-Founder of Lawyers for Liberty, was arrested at Dataran Merdeka on 22 March 2015 under Section 4(1)(b) of the Sedition Act 1948, had his mobile phone confiscated, and was detained overnight, over his tweets on the implementation of hudud laws.  As the relevant tweets were easily ascertainable, as evidenced by the screenshots of his Twitter account, all that was required was for the police to confirm that he had indeed sent out the relevant tweets, hence there was no justification to arrest and detain him overnight; 

(3) It was reported that over 80 anti-GST activists were arrested at the Kelana Jaya Customs Complex and taken to the Kelana Jaya police station on 23 March 2015.  It was reported that the police did not inform them of the reason for their arrest, and that they were denied their right to legal representation for the entire period of their detention. 

The next day, about 25 of the activists were taken to the Ibu Pejabat Polis Daerah (District Police Headquarters) Shah Alam for remand for offences under Section 21of the Peaceful Assembly Act 2012 and Section 447 of the Penal Code.  It was also reported that the police sought remand orders for all 25 individuals — although the majority of them had already given their statement to the police — and the individuals were subsequently remanded for two days. The police reportedly denied the detainees their right to legal representation until just minutes before the remand hearings began.  The reasons for the remand applications were unacceptable, and the refusal to disclose the grounds for the arrest and the initial refusal to allow for legal representation were a breach of Article 5(3) of the Federal Constitution;  

(4) It was reported that Rafizi Ramli, Member of Parliament for Pandan and Vice President of Parti Keadilan Rakyat (the People’s Justice Party; “PKR”), was arrested on 27 March 2015 under the Sedition Act 1948 over a circular he had issued about the #KitaLawan rally, and was held in remand for three days.  On 29 March 2015, it was reported that the police raided the PKR national headquarters, seized four computers, a copy of the circular, and a copy of the media statement Rafizi had issued regarding the rally.  Again, as the police already had the circular in their possession, all that was needed was for the police to ascertain whether he had issued the circular.  Why was there then a need to arrest and seek an extended remand order, and in addition raid the headquarters of the political party as well as seize its property?;

(5) On 27 March 2015, Hishamuddin Rais, a political activist, was reportedly travelling in a taxi near Dataran Merdeka when he was followed by a silver-coloured Honda Civic and several motorcycles.  It is alleged that six men wearing balaclavas grabbed him when he alighted from the taxi.  One of them reportedly dragged him by his chest and covered his mouth to stop him from shouting, and they then forced Hishamuddin into another car, which sped off.  His abduction was witnessed by several individuals.  One eyewitness, Muhd Daniel, reportedly chased the vehicle and managed to grab one of the alleged kidnappers but was forced to let go as the kidnapper had pointed a pistol at him. Subsequently, when Hishamuddin’s friends contacted the police, they were informed that Hishamuddin was being detained at the Dang Wangi police station.  He was reportedly detained for his alleged involvement in the #KitaLawan rally in Kuala Lumpur to be held on the next day, 28 March 2015.  Hishamuddin was released on 29 March 2015;

(6) On 28 March, politician Mohamad Sabu (better known as Mat Sabu) was reportedly arrested by 20 police officers wearing balaclavas and bearing weapons at a restaurant in Butterworth, Penang at about 12:20 am, and taken to Seberang Jaya police station.  At about 1:30 pm, the police reportedly took Mat Sabu to the Dang Wangi police station in Kuala Lumpur.  He was also released on 29 March 2015; and

(7) At approximately 3:00 am on 29 March 2015, Khalid Samad, Member of Parliament for Shah Alam, was reportedly arrested at his home in Shah Alam under Section 143 of the Penal Code, to assist in the investigation into the #KitaLawan rally that had taken place in Kuala Lumpur. Eyewitnesses alleged that the police turned up at Khalid’s home in five cars, and that several of the police officers were brandishing M16 assault rifles.  Khalid was taken to the Dang Wangi police station for documentation and then to the Jinjang police station for further investigation. He was released on police bail at 8:30 pm.

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
Malaysian Bar

2 April 2015

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