Pay RM30,000 in cost because you took the government to court? What is the message that the courts are giving the Malaysian public?

The Malaysian courts, since the rise of Zaki Azmi as the head of the judiciary, is becoming more and more inaccessible to the poor...and 'poorer' Malaysians. [Zaki Azmi - a former UMNO lawyer, Early September 2007 - Lawyer to Federal Court Judge, December 2007 - Appointed the President of the Court of Appeal (No.2 in the Malaysian Judiciary), October 2008 - Appointed Head of the Malaysian Judiciary] - see earlier posts Fight Corruption in Courts - Get rid of corrupt Judges and court staff...and Zaki Azmi ] 

Who can afford paying costs of RM50,000....and RM30,000, if and when they lose in court? Already, they would have had to pay their lawyers...and now Malaysian courts at the highest level is setting a very bad precedent...maybe, it is a step being taken to 'clear the backlog' - deter ordinary people from taking up matters to the court.

In cases against the government and/or government agencies taken up by persons claiming their human rights, surely cost payable, in the event they lose, should be really nominal - not more than RM500-00....or just no order as to cost. These are also cases of public interest - and helps clarify the rights of persons with regard the government...police, MACC, etc... [Things are also changing in Malaysia as it seems that 'no one can win against the government'...]

Kajang municipal councillor Tan Boon Wah against the Malaysian Anti-Corruption Body - the question was whether the MACC can question a witness 'around the clock'...for 24 hours. The  Lock-up Rules, which protect suspects from further interrogation between 6.30pm and 6.30am...but the Court of Appeal (and the Federal Court) seems to say that witnesses can be investigated round the clock...Matter of public interest and human rights? I think so...and hence 'penalizing' Tan by having him pay RM30,000 is wrong ...so wrong. [Councillors get about RM1,000 per month - 2 1/2 years allowance, mmm ]

They also unanimously awarded the cost incurred in the Court of Appeal and Federal Court, a total of RM30,000, to the MACC.- Malaysiakini, 20/5/2010, Federal Court: MACC can interrogate witnesses after office hours

Abdul Malek Hussein was a ISA detainee [detention without trial]. He came to court alleging that his detention was unlawful, and that he had been tortured. The High Court was with him and awarded RM2.5 million in damages. But, the Court of Appeal overturned the High Court decision, and asked Malek to pay RM50,000 in cost..[ see earlier post:- As expected, Court of Appeal overturned RM2.5 million judgment favouring Malek Hussein....]

 Following the decision, Abdul Malek is not entitled to get any monetary award but was instead ordered by the appellate court to pay RM50,000 in costs..- Malaysiakini, 25/3/2010, Ex-ISA detainee loses RM2.5 mil court award

The Malaysian Bar did come out after the Malek's decision and say:- "...We are surprised that the Court of Appeal appeared to overturn findings of fact made by the trial judge, who saw the witnesses and heard their live testimony.  Furthermore, the order of costs of RM50,000, especially against a victim of the ISA, is exorbitant, and punitive in nature..." (see earlier post: "Pay RM50,000" - Are the Malaysian Courts sending a message to us? Do not challenge the government...???)

The Federal Court today declared that witnesses can be interrogated by the Malaysian Anti-Corruption Commission (MACC) beyond office hours.

The three judges, Abdull Hamid Embong, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof, came up with the unanimous decision after spending about 35 minutes in the chambers.

However, they did not give the grounds of their judgement, saying that they will deliver it "later".

They also unanimously awarded the cost incurred in the Court of Appeal and Federal Court, a total of RM30,000, to the MACC.

Senior federal counsel for MACC Amarjeet Singh, in his submission, maintained that the Court of Appeal's judgement, which had said that restricting the time of examination to normal office hours would create absurdity, and would not promote the purpose of the MACC Act.

"The importance of prompt and unimpeded investigation would promote the purpose of the Act.

"The apex court has always recognized the importance of investigation as not only as being in the interest of the public, but also in the interest of justice even when the fundamental rights of an individual is at issue," he told the court in Putrajaya this morning.

He also said that the provision in the act, sections 30(1)(a) and 30(3)(a) confers a power on the officer investigating an offence to require the attendance of any person to assist in investigations.

"This provision is in line with promoting the purpose of preventing corruption by ensuring that the time of investigation is not restricted and takes place as and when the occasion requires," he said.

"Time to carry out investigative functions ,therefore, cannot beinterpreted as being restricted to normal working hours."

'Suspects have more rights than witnesses'

However, Tan's lawyer, Karpal Singh, told the court that had the legislature intended for the term "day-to-day" when providing for interrogation of witnesses to mean continuously or without interruption from one 24 -hour day to another, it is only proper to look for some other meaning of the word or phrase.

The veteran lawyer also cited the Lock-up Rules, which protect suspects from further interrogation between 6.30pm and 6.30am.

"Witnesses should be entitled to more protection than suspects. It is the reliable evidence of witnesses which ultimately succeed in the conviction of suspects.

"If witnesses were questioned round the clock, their statements should then be inadmissible," he said.

When met outside the court, Karpal expressed disappointment.

"Now suspects have more rights than witnesses," he said, adding that there will be repercussions as witnesses will be afraid to come forward.

End of the road

He also said that it is already the end of the road for Tan as there will be no more room for review of the Federal Court decision.

Tan, had challenged the MACC's right to interrogate witnesses late at night, during which time the commission has been accused of torturing them.

Tan himself was questioned overnight at the Selangor MACC headquarters in Shah Alam on July 15 last year, together with state exco Ean Yong Hian Wah's aide Teoh Beng Hock. Teoh was subsequently found dead the next morning.

The High Court had ruled in favour of Tan, allowing the judicial review, saying that the MACC is not empowered to investigate a witness "round the clock".

 

But the decision was overturned by the Court of Appeal on Dec 17, which held that restricting the interrogation of witnesses to working hours would create an absurdity and would not promote the purpose of the MACC Act.

The judges also decided to award costs to the MACC in the civil suit filed by Kajang municipal councillor Tan Boon Wah (photo, left).

The judges also did not give their grounds, saying that they will on do so "in due course"..- Malaysiakini, 20/5/2010, Federal Court: MACC can interrogate witnesses after office hours

Thailand, like Perak...the people chosen government is not in power because of 'party hoppers', etc

What is happening in Thailand is similar to what happened in Perak...

The people chose Pakatan Rakyat to govern them in Perak - but then we had some 'party hoppers' - and suddenly Perak is governed by government not of the people's choosing. Likewise, in Thailand the people chosen government was ousted....lastly, when there were 'party hoppers' that gave the majority to the Democrat Party, that had lost the 2007 elections. In essence, what happened in Thailand is similar with what happened in Perak but there was more 'drama' in Thailand..

In Thailand in the 2007 Thai General Elections that was held on 23 December, the People's Power Party (PPP) led by Samak Sundaravej emerged the victor. According to final results, the PPP won 233 seats, the Democrat Party 165 seats and Chart Thai 37 seats. For the Motherland got 24 seats, Ruam Jai Thai Chat Pattana 9, the Neutral Democratic Party 7 and Pracharat 5 seats.

In January 2008, a coalition government was announced bringing together the PPP and the five smallest parties. The Democrat Party became the sole opposition party.Samak Sundaravej became the Prime Minister.

Then it started, and the 'yellow shirts' (which are the rich, upper middle class and 'Bangkok' people, which seem to have the support of the royalty) started to do things with the intention of removing the duly elected PPP coalition government

Samak was finally removed in September after the Constitutional Court found him guilty of being hired and paid by a cooking TV program after he became the prime minister. 

PPP deputy leader Somchai Wongsawat, vice president of PPP and a brother-in-law of Thaksin, was elected by the members of parliament and became the new prime minister. 

This change prompted a further escalation of PAD [People's Alliance for Democracy] ('yellow shirt') protests. The protests led to violent clashes between the police, the PAD, and anti-PAD protesters on October 7 as the government aiming to disperse them from blocking the entrances of the House.

The PAD then step up their protests by seizing the government's temporary offices at Don Muang Airport, and the seizure and closure of Suvarnabhumi Airport.

Then in December the Constitutional Court dissolved the PPP and banned its executive board from political office after finding it guilty of election fraud. Prime minister Somchai automatically ended his rule.

Then, there was the 'party hopping' -  many PPP MPs  defected to the Democrat Party and supported Abhisit Vejjajiva as the new Prime Minister. After days of negotiation, Abhisit Vejjajiva, leader of the Democrat Party, was voted in eventually by the majority of the members of parliament as the new Prime Minister.

PPP members and its supporters, known as the  National United Front of Democracy Against Dictatorship (UDD) [the 'red shirts'] then rejected the rise of Abhisit. The UDD is the group consisting of mainly social activists, scholars, and Thaksin supporters which opposes the 2006 coup deposing Thaksin Shinawatra. The 'red shirts' are mostly rural folk, the poor...unlike the 'yellow shirts' who were mainly upper class, and from Bangkok. The 'red shirts' believes that the coup that removed Thaksin, and that ousted the PPP coalition government was supported by powerful persons, the 'elites' or 'nobles'.

The UDD[the 'red shirts'] began their huge protest in April 2009 against the Abhisit government. The Government's House was under siege again and main roads, intersections and entrances to hospitals were blocked in downtown Bangkok.

In mid-March 2010, the 'red shirts' began their demonstrations in Bangkok. What they wanted was fresh elections. As of today (19/5/2010), when the government cracked down on the protesters, around 70 people have died and about 1,700 wounded.

 

It is sad that the Malaysian government, and/or the Pakatan Rakyat seems to be not bothered about what is happening in neighboring Thailand. They seem to be too pre-occupied in wresting total control from the BN government, or re-gaining control of State governments from the Pakatan Rakyat. This 'selfish' behaviour, for want of a better word,  is disturbing for are we not part of the ASEAN community...and the human family. 

Both BN and Pakatan must stop practice of suspending 'wakil rakyat' from the House

Suspending a 'wakil rakyat' from Parliament and State Legislative Assemblies is very wrong - and both the BN and Pakatan Rakyat have been guilty of this. Tit for tat - was that what it was when Pakatan Rakyat did it? 

MPs and ADUNs are chosen by the people of their constituencies to represent them in Parliament and State Legislative Assemblies - and suspending them, and preventing them from being in...and participating in Parliament (and/or State Legislative Assembly) is so wrong, and is definitely ac act disrespecting people and a violation of people's human rights. It is certainly un-democratic - and must stop.

Privilege prevents the taking of criminal proceedings (and/or civil suits) against MPs and ADUNs for what they say in Parliament and/or State Assemblies - and there is a reason for this...which both the BN (and Pakatan Rakyat) seem to have forgotten. Going against this recognized freedom of expression...opinion..that must exist in Parliament and State Legislative Assemblies, those that have the majority use 'privileges committee' committees to exclude duly elected people's representatives from the House. A token suspension for a day may be acceptable but suspension for months...and months is really not acceptable. 

Fresh from Sibu a sucessful by-election campaign, two Pakatan Rakyat state representatives find themselves suspended by the Sarawak state legislative assembly for one year with immediate effect. The duo are Chong Chieng Jen (DAP-Kota Sentosa), who is also Kuching parliamentarian, and Dominique Ng (PKR-Padungan). 

Their suspensions were handed following recommendations by the powerful privileges committee's probe on the duo for offences allegedly committed at the assembly debate last year. 

Chong (right) was hauled before the privileges committee after calling rival party Sarawak United People's Party (Supp) "liars".

He was also censured for telling the state assembly that government policy caused the suicide of a hawker who suffered loss of business from a forced relocation of a public market.

"The blood is on the minister's hands," he was quoted as saying at the time.

State minister Wong Soon Koh (SUPP-Bawang Assan) referred Chong to the committee on May 19 last year after the latter refused to retract both statements.

Meanwhile, Ng was hauled up to the same committee last year for referring to the state assembly as a "kangaroo court" on May 9 last year.

"Kangaroo Court! Let's count the kangaroos! Hop! Hop! Hop!" said Ng (left).

Ng was referred to the privileges committee following a motion tabled by Bolhassan Di (PBB-Beting Maro). 

However, the duo will still retain his allowances and renumerations during the suspension period. 

Revenge for Sibu loss

In an immediate reaction, Ng said his suspension today reflects BN's attempt to extract revenge for DAP's win in the Sibu by-election on Sunday.


However, he remained undeterred and told Malaysiakini in a text message that “I'll be back!”.


Meanwhile, Chong stood by his attacks on Taib and Supp and will continue to do so because he wanted to send a message to the state government on behalf of his constituents.


“I was elected to the state assembly to speak for the people and not to bodek (brown-nosing) the chief minister or Supp,” he said.


“BN can use their majority to bully us but they will ultimately have to face judgment in the upcoming (state) elections,” said Chong, adding that the state government should take heed from the Sibu by-election loss. 

In another battle at the assembly today, a motion by Wong Ho Leng (DAP-Bukit Assek) to cut the salary of ministers by RM10 for not providing answers to written questions was rejected by the speaker.

Wong had on Sunday won the hotly contest by-election in the parliamentary seat of Sibu. - Malaysiakini, 18/5/2010, Two S'wak Pakatan state reps suspended

Dominique Ng (PKR-Padungan) and Chong Chieng Jien (DAP-Kota Sentosa) were each slapped with 12 months' suspension from the state assembly, effective Tuesday, for contempt.

The ruling means this will be the two Opposition assemblymen's last appearance at the current assembly as its term will officially end on July 24, 2011.

The Sarawak state assembly sits twice a year, with the first session starting in May and the second, in November, usually for state budget tabling.

Ng was the first to be suspended by Speaker Datuk Seri Mohamad Asfia Awang Nassar after 53 assemblymen voted in favour od the suspension, seven against and one abstained.

He was suspended for his "kangaroo court" remark in the May sitting last year, during the debate on the motion to adopt the findings and recommendations of the Committee of Privileges regarding Wong Ho Leng (DAP-Bukit Assek).

Ng had said: "This is a kangaroo court. Let's count the kangaroos. Come hop, hop, hop." Speaking to reporters later, Ng said he was disappointed with the ruling as it meant that he would not be able to voice out the problems of his constituency for a year and would have to wait for the new term of the new state government to begin.

Chong, who is Sarawak DAP secretary, received similar punishment after 54 assemblymen voted in favour of his suspension and six against.

Chong was found to be in contempt of the august house in May last year for disputing and challenging the decision of the house over the Sarawak United People's Party (SUPP) engaging Chinese experts to study the flood mitigation project for Kuching.

The second charge aginst him was for imputing improper motives towards Assistant Minister in the Chief Minister's, Department Datuk Daud Abdul Rahman, for allegedly indirectly causing a Gambier street hawker to commit suicide. - Bernama - Star, 18/5/2010, Two Opposition reps suspended from Sawarak state assembly

MAYBE A NATIONWIDE SIGNATURE CAMPAIGN SHOULD BE STARTED TO CALL FOR THE ABOLITION OF THE POWER TO SUSPEND A WAKIL RAKYAT FROM PARLIAMENT/STATE LEGISLATIVE ASSEMBLIES. (Maybe, even if suspension is to be used, it should only be for a day (or part of a day) - and that, too only for the purpose of restoring order to the House). The majority have really abused this power to oppress the minority...and both BN (and the Opposition) are guilty..

Oppose remand applications in Police Headquarters to protect human rights of suspects

Shocking news for human rights....for suspects.in police custody.

According to law,  the police after arresting a person is not permitted to detain a person for more than 24 hours. For further detention, to complete their investigation the police have to go to the Magistrate and apply for a remand order...

These application were all done at the court complexes generally, save for public holidays when sometimes the Magistrate may go to the police station to hear this application. The suspect has a right to be represented by a lawyer of the suspect's choice.

Previously, there was already a lot of concern when the police seem to present in numbers during the remand proceedings, and this often resulted in 'fear' - and suspects who have been tortured, abused, human rights violated (not not being given access to their medication...or to see a doctor) are just too scared to reveal what happened to the Magistrate for worry that they will suffer even worse when they go back into police detention. It is even scary when the police 'torturer' is there as well. Some of these police officers that 'tortured' the suspect also may have threatened them not to reveal anything to the Magistrate (or others)..

Irrational though the fear to tell the truth about police wrong-doing but it is very real for the affected suspect...The large numbers of police present during remand proceedings was already a problem....but now, in Kuala Lumpur the courts have decided that all remand application in Kuala Lumpur area will be done at the Bukit Jalil District Police Headquarter, Kuala Lumpur from 17/5/2010. 

This makes it even worse for the suspects ....and we must protest this move. All remand applications should be done at the courts...and during these applications, only the relevant investigating officer should be present in the room. [In fact, it would really be best if there was a 'special court police', with a different uniform and under the judiciary..who will take custody of the suspect when they arrive in court...and return them back to the police if the remand order is granted. This certainly will remove some of the 'fear' and the suspect will be more likely to reveal any torture, abuse....by the police to the Magistrate]

I sincerely hope that the Bar Council will not be silent about this ...and will fight to have the remand applications in court.

There is a lot of restrictions at Police Stations, what more police headquarters...we know about the case of lawyers being kept at the gates not permitted to even see their clients...and even arrested when they insist on their rights. In the courts, there is also the opportunity for those who do not yet have a lawyer ...to retain the services of a lawyer (or at least get a legal aid lawyer to act for the suspect.)

If the image and the credibility of our Malaysian police was good - then we will not be too worried. But there have just been too many allegations of torture, death in custody, 'shoot to kill' incidents, lies (like in the case of Anwar's black eyes) .... and, so it is important that we protest strongly this move to have all remand applications done at a Police Headquarters - it is best that it continued to be done at the court complexes/buildings (certainly a more neutral environment which will encourage the suspect to reveal the truth about police 'wrong-doings').

The Bar Council was informed apparently vide letter dated 10/5/2010...and they informed lawyers vide e-mail dated 14/5/2010 - and the remand applications for the whole of KL will be in that police headquarters (which I too do not exactly know where) on 17/5/2010. If it is the second remand application, will it be the same Magistrate that granted the first order be hearing it - which should be, for she will be the one familiar with the facts and the reasons why the first remand was granted, etc... I am sure that there will be a lot of confusion...and a lot of rights violated by this really very "short-notice" ....

See earlier post: (which also contain the relevant sections concerning remand applications)

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

Freedom of Speech: Sedition Act is an archaic deterent that must be repealed

Is there freedom of speech in Malaysia? YES - there is but there are limits....and some of these limits are alright...but some are unreasonable and not acceptable like the fact that Malaysians are  not supposed "...to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution...." .

I am of the position that any man-made law is certainly open to discussion and even questioning, including the 'taboo topics' listed in the Federal Constitution. What makes a Constitution drafted in the 50's sacred - a constitution that, I believe,  never even went through a referendum process where all Malaysians could have their say.  

What is sedition....and what is not? Well, look at the relevant section 3 and 4 of Malaysia's Sedition Act 1948?

It is very wide - and seems to say that even exciting disaffection against the Ruler, Government, against the administration of justice (Judiciary...what else?)...raising feelings of "ill-will and hostility" between races....classes(does this mean between the rich and the poor?) can result in you be charged for sedition.... BUT, not so if it was to 'to show that any Ruler has been misled or mistaken in any of his measures', ' to point out errors or defects in any Government or constitution...' or...

But, alas this is Malaysia and here there are sufficient laws that could be used to charge any person for anything....[I remember the say I saw a young man being charged in the Magistrate Court for possession of a paper cutter he bought from a stationery shop...which they said was a weapon..]. And, that is why Malaysians must be fearless and willing to face all risks of retaliation from the authorities of the day (and their 'friends') in standing up for justice, human rights, god-given human freedoms, etc...

Let us not lie - but speak the truth which can be proven. If not, express your opinion...raise questions...."In my opinion, ...."

3.  Seditious tendency.

(1) A "seditious tendency" is a tendency -

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -

(a) to show that any Ruler has been misled or mistaken in any of his measures;

(b) to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects;

(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) -

(i) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or

(ii) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of illwill and enmity between different races or classes of the population of the Federation,

if the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency.

(3) For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or would, if done, have had, or the words, publication or thing had a seditious tendency.

4.  Offences.

(1) Any person who -

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication,

shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and, for a subsequent offence, to imprisonment for a term not exceeding five years; and any seditious publication found in the possession of the person or used in evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

(2) Any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and shall, on conviction, be liable for a first offence to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding eighteen months or to both, and, for a subsequent offence, to imprisonment for a term not exceeding three years, and the publication shall be forfeited and may be destroyed or otherwise disposed of as the court directs.

Malaysian police can shoot and arrest when they want too...so when persons were killed, was it intentional?

Well, it is possible for the police to shoot and arrest...and in this case, 5 bullets were shot...and 3 hit"..left rib, knee and left foot." ...and one bullet hit an innocent person.

Anyway, what we need is for an independent body (certainly not the police themselves) to investigate the whole shooting incident...to determine whether there was any need to shoot...and if there was any shooting, was it really necessary, etc.. IPCMC - that is what we need.

PETALING JAYA: Police have set up a task force to carry out a thorough investigation into the incident where a bystander was wounded by a stray bullet in Kuala Selangor.

The task force, headed by a senior officer from Selangor police headquarters, is to ascertain if the policeman had followed procedures before opening fire, said state police chief Deputy Comm Datuk Khalid Abu Bakar.

In Sunday's incident, five shots were discharged from the policeman's pistol during the incident involving a deranged man who attacked a policeman with a parang in Kampung Kuantan.

“I feel very sad about this incident and I strongly believe no one wanted it to happen,” DCP Khalid said.

“We want to take necessary precautions to prevent it from recurring,” he said, after visiting the injured bystander S. Surentiran, 22 at the Sungai Buloh hospital yesterday.

DCP Khalid urged the public not to politicise the incident, which could lead to a public outcry or condemnation against the police force.

To a question, he said the four policemen involved in the incident were still on duty and he saw no reason to suspend them as they were just carrying out their duty.

A 48-year-old mentally-ill man, believed to be an ex-commando, began acting in an aggressive manner and wielded a parang at villagers in a shop at about 7.30pm.

A villager called the police and two patrol cars responded.

One of the policemen ordered the man to surrender, but he got onto his bicycle and headed towards a vacant house about 2km away. All four policemen pursued him and tried to coax him into giving up.

All of a sudden, he attacked one of the policemen who shot at him once but missed.

After the first shot, the man ran into an oil palm estate where he stabbed a villager, Mohd Khairi Zaharuddin, 30, in the left thigh.

A policeman who was chasing him fired four shots, hitting him in the left rib, knee and left foot.

Surentiran was hit by a stray bullet in the incident.

Surentiran's brother, Sures, 23, lodged a report at the Kota Daman-sara police station at 3.30pm on Monday over the incident.- Star, 12/5/2010, Task force to probe how stray bullet hit bystander(from the Malaysian Bar website)

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

183 shot and killed by police from 2007-2009 - Will their families also get justice? Another victim sues..

More victims of police shooting are courageously coming forth - and demanding justice. This, I suspect is still only the tip of the iceberg...

For justice, we need an independent judiciary....and many believe that our judiciary is 'not independent' - more so when the cases filed are against the police and the government of the day. 

Deaths caused by shoot to kill incidents in Malaysia  is 183 in the last 2 years, 2007-2009.

Ini dapat dilihat apabila Kementerian Dalam Negeri menyiarkan dalam satu kenyataan Akhbar di parlimen pada 18 Mac 2010, yang menyatakan bahawa jumlah kes tembak mati oleh polis adalah seramai 183 orang dari tahun 2007 hingga 2009. - SUARAM Media Statement, 28/4/2010, Kini Remaja ditembak mati oleh Polis: Segera Jalankan penyiasatan secara terbuka!, also published in Merdeka Review, See also full statement in earlier post:-Police's duty to arrest - not kill. Judicial Inquiry Needed for all police 'shoot to kill' incidents

A victim of police shooting has filed a legal suit against the police and the Malaysian government...Will the courts now drag this case....and try to strike it out for all kinds of reason, or will we get justice soon?

Woman files suit against 'trigger-happy' police

 

Before there were Aminulrasyid Amzah and Norizan Salleh, both of whom were shot by the police in a hail of bullets, there was Siti Nasrinda Sumirin (above).

Twenty-three-year-old Siti Nusrinda was injured in her waist by a “blind and wild rampant shot” while driving with her fiance in Klang last August.

Another bullet had apparently grazed her 'tudung' in the incident - another few inches and she would suffered the fate of 14-year-old Aminulrasyid, who was killed during a police car chase last Monday.

Siti Nusrinda has today filed a RM2 million suit against the police and the government for the lack of action taken by the police in her case and for the injury she sustained.

In addition, Siti Nusrinda also wants the police officers involved in the shooting - a constable and a corporal - to undergo two years' of community service.

According to her, this was to teach the duo a lesson to be more responsible in their action next time.

Her suit was filed at the Shah Alam High Court today by her lawyer M Manoharan, who is also the Kota Alam Shah assemblyperson.

In the suit, she named the Klang OCPD, Selangor police chief, inspector-general of police, the two police officers and the government as defendants.

Shot allegedly fired without warning

Besides seeking RM1 million in damages, her fiance Mohd Fauzi Mohd Daud, who is now her husband, is also seeking RM500,000 in damages. He was not injured in the incident.

Siti Nusrinda and Mohd Fauzi were both chatting in a car parked along a street in Klang Utama at 8.30pm on Aug 19.

A police car later arrived and flashed its headlights. Both Siti Nusrinda and Mohd Fauzi panicked and fled.

The police gave chase and allegedly started shooting without warning. A few shots were fired, with one bullet going through the passenger seat and hit Siti Nusrinda's waist.

Driver Mohd Fauzi eventually stop the car where the duo were informed by the police that they were being investigated for speeding, committing 'khalwat' (close proximity) and for obstruction of the police.- Malaysiakini, 7/5/2010, Woman files suit against 'trigger-happy' police

Amend the law to cover deaths in Immigration Detention Places, Drug Rehab Centres, etc...

There really is a need to amend  the Criminal Procedure Code, to extend inquiries of a death of a person to Immigration Detention Centres, Drug Rehabilitation Centres, Henry Gurney School,... i.e. all places of detention. Now, section 334 confines itself only to 'custody of police'(which would include police lock-ups), psychiatric hospitals or prisons...when there are so many other places of detention in Malaysia.

It should also be extended to include custody of the RELA, Immigration enforcement officers, and other enforcement officers...

What about persons in the custody of other private persons, who also do have the right to arrest persons... 

Of late, there have been a lot of cases of death in Immigration Detention Centres.... and the current law about 'inquiries of death', imposes no obligation on the person in charge of Immigration Detention Centres to  "... immediately give intimation of such death to the nearest Magistrate..."

INQUIRIES OF DEATHS

334.  Inquiry into cause of death of a person in custody of police or in any asylum.

When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death. - sec 334, Criminal Procedure Code (Act 953)

UMNO-led BN government should follow the recomendation of the King's commissions - set up the IPCMC

With regards the case where the police shooting resulted in the death of a teenager, what we need to be investigating is:-

What really happened?

Was the use of firearms in this case reasonable and justified, for  police only have the power to arrest persons....and in certain cases, the use of necessary force for the purposes of affecting arrests is permitted? Note also that the law very clearly states :- "... Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. - section 15, Malaysian Criminal Procedure Code (Act 593).(See also earlier post:- Police's duty to arrest - not kill. Judicial Inquiry Needed for all police 'shoot to kill' incidents

If the police officers went beyond their powers, as provided for law, action must be taken against them. Maybe, they should be charged for killing....murder???

And, in these cases the victim's family must also be compensated?

Would an ordinary inquest deal with all these elements? Not really - and thus we need another body to deal with this - and the answer have been given to the UMNO-led BN government of Malaysia by 2 different Royal Commissions - Independent Police Complaints and Misconduct Commission (IPCMC). 

A Royal Commission is the King's Commission (the Yang Di-Pertuan Agung's Commission), and a refusal to carry out the recommendations of that 2 Royal Commissions is a demonstration of disrespect to the King by the UMNO-led BN government  - this is what I think. What do you think?

Can the police themselves be responsible for investigating cases where the perpetrators of the wrong are police themselves? Can they be independent? I do not think so.... we need an independent body to do this, and this would be the IPCMC (as originally proposed by 2 Royal Commissions) - not any watered-down body, that the government is trying to push. Someone needs to police the police - and it must be the IPCMC. Look at how they have called the teenage civilian witness so many times for questioning.... and I wonder whether it is the same with the police officers involved. It is natural, that we protect one of own ...and that is why we need another totally independent (not police) body to investigate matters where the police are involved, and are the alleged perpetrators of the wrongdoing, in this case the killing of a young Malaysian.

Setting up a special panel to investigate every 'shoot to kill' incident - not necessary, and in fact there is, I believe,  no law providing for the setting up for such investigation panels. There is on the other hand laws that provide for the setting up of such a panel - unlike a Commission of Enquiry (which is provided for in the COMMISSIONS OF ENQUIRY ACT 1950 (REVISED 1973)

2.  Issue of Commissions.

(1) The Yang di-Pertuan Agong may, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

(a) the conduct of any federal officer;
(b) the conduct or management of any department of the public service of Malaysia;
(c) the conduct or management of any public institution which is not solely maintained by State funds; or
(d) any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare, not being -

(i) a matter involving any question relating to the Islamic religion or the Malay custom; or
(ii) in relation to Sabah or Sarawak, a matter specified in item 10 of the State List:

Provided that where any federal officer into whose conduct it is proposed to enquire, was, at the time of committing such conduct, serving in a department of the public service of a State, such commission shall only be issued with the concurrence of the State Authority.

(2) (Repealed).

(3) The State Authority of any State other than Sabah or Sarawak may, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

(a) the conduct of any State officer;
(b) the conduct or management of any department of the public service of that State;
(c) the conduct or management of any public institution which is solely maintained by State funds; or
(d) any other matter in which an enquiry would, in the opinion of the State Authority, be for the public welfare of the State and which does not directly concern the public welfare of any other State:

Provided that where any State officer, into whose conduct it is proposed to enquire, was, at the time of committing such conduct serving in a department of the Federal Government or of the public service of another State, the Commission shall only be issued with the concurrence of the Yang di-Pertuan Agong or the State Authority of such other State, as the case may be.....

The time is here for Malaysians to once again call upon our government to do the needful and set up the the IPCMC (as originally proposed by 2 Royal Commissions)

While police procedures allow them to “use all necessary action to affect an arrest” on a suspect, they have overstepped their bounds in firing the shot that killed 14-year-old Aminulrasyid Amzah in Shah Alam last month, said a legal expert.

Universiti Islam Antarabangsa law professor Raja Badrol Hisham Raja Mohd Ali explained that the Inspector General's Standing Orders (IGSO) allows for the use of firearms in 'extreme situations.'

The IGSO is a set of guidelines on police procedures, including the permissible use of firearms, issued to, and to be complied with, all district police chiefs.

“In Aminulrasyid's case, the pertinent question is, was (the situation) 'extreme' enough to justify the firearm being drawn and fired?” he asked.

The answer, in the academician's expert opinion, is no.

Badrol Hisham (right), who lectures in criminal procedure law, said this to around 120 students, politicians, activists and reporters during last night's forum demanding justice for the fatal shooting of teenager Aminulrasyid.

“Let's revisit the facts without any emotional baggage. Aminulrasyid was driving very fast and he ran a red light. We can say that this exhibits criminal behaviour: he was fleeing from police, he did not stop when allegedly ordered to.”

“The Criminal Procedure Code (CPC) allows the police to overpower suspicious individuals from fleeing and arrest the person or persons. They can also use their firearms, but there are limits.”

He said that under the CPC, shoot to kill is only allowed if the suspects are:

1. Involved in a crime punishable by death

2. Involved in a crime punishable by life imprisonment

By both these standards, Badrol Hisham contends that the police officers have failed to follow proper procedures, because they shot to kill despite the victim not presenting a threat to the police and not suspected of a serious crime.

He also alleged that the police may be attempting to distract the public from this truth, with the 'discovery' of the machete in the car and the questionable story of the deceased 'reversing' the car towards the police.

First of all, said Badrol Hisham, with the machete being in the trunk, it was never a threat to the officers, unless it was being waved around by the victim. Even then the police should have shot to disable and not to kill.

More importantly, the machete was only discovered afterwards, making its use as a justification to shoot irrelevant, as police would not have known about its existence at the point of shooting.

As for the deceased allegedly reversing the car, he said that according to witness Azammuddin Omar, Aminulrasyid was already dead when the car crashed and there were no skid marks to indicate a sudden reverse at the scene of the shooting.

'Police ignorant of guidelines'

“The death of Aminulrasyid could have been avoided if the police understood the IGSO. I don't know why only OCPDs are issued with the document. It should be given to everyone in the police,” he said.

He added that more importantly, police could have shown more prudence before jumping to conclusions.

“They could have checked the number plate of the car to see if it is linked to known criminals. All patrol cars nowadays are in constant communication with their control centres, have radios, and some are even equipped with computers,” he said.

“On a more serious note, almost all the OCPDs are unaware that the CPC has been amended. In 2007, there were substantial revisions to the code. But they mostly don't know about it. I found this out when I sent my students to interview OCPDs,” said the law professor.

Badrol Hisham said that it is disturbing for law enforcers not to know about the law.

“How can we put our lives and safety in their hands?” he asked.

The forum, organised by National Union of Malaysia Muslim Students (PKPIM) at the Selangor and Kuala Lumpur Chinese Assembly Hall featured a panel comprising Badrol Hisham, civil activist Wong Chin Huat and lawyer for the late Aminulrasyid's family N Surendran.- Malaysiakini, 6/5/2010, Teen's fatal shooting: Police overstepped bounds

See also earlier posts:-

Police's duty to arrest - not kill. Judicial Inquiry Needed for all police 'shoot to kill' incidents

We need a open public inquiry...a new panel..to get to the truth about Aminulrasyid Amzah

Polis, Jangan tembak mati....tangkap dan bicarakan (3 lagi dibunuh polis)