Friday, April 13, 2012

SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

"solely for his political belief or political activity" - there is concern with regard the definition section as it limits it to "directed towards any Government in the Federation" - when it comes to ordinary persons and maybe even civil society groups - the concern would be whether there would be protection if it is not 'directed towards' because some of these may not be specifically 'directed towards' but may be directed to Malaysians and other persons, the media, some companies in Malaysia, some political party of personality (or even bodies like the ILO, UN, other governments, etc,) but is related to and/or relevant to the government of Malaysia. Hence, the wordings 'directed towards an government in the Federation' may be too limiting and can be narrowly interpreted.... Political activity of individual persons and civil society groups is a funadamental right that need to be protected...Remember political belief and activity is non something that is confined just to political parties and politicians - but is something that everyone has a right to.

Sec. 4(3) (3) No person shall be arrested and detained under this section solely for his political belief or political activity.

(12) For the purpose of this section, “political belief or political activity” means engaging in a lawful activity through—
(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political
party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by—
(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;

(b) the expression of an opinion directed towards any Government in the Federation; or

(c) the pursuit of a course of action directed towards any Government in the Federation.

Power to intercept communication - section 6 

- this power is most dangerous and certainly an invasion of privacy - without the knowledge of the affected individual, let alone with no stipulation as to the time frame that this invasion of privacy is permitted..

The risk is the government can now legally 'bug' people's phones, intercept e-mail communications, etc -- and it can be something done permanently. All persons active in civil society, political parties, trade unions, etc - may now have their 'communications' permanently being monitored and intercepted. Who would they want to continuously monitor - Ambiga and the people in BERSIH, those involved in HIMPUNAN Hijau, those involved in HINDRAF and in fact maybe all those in civil society, trade unions and opposition political parties,... maybe also ....

Can this 'invasion of privacy' be challenged in court? Well, no mention about this right at all.... Can there be a judicial review to challenge the AG's authorization? There must be - but the present law does not provide for this.

Can the 'evidence' gathered through these actions of invasion of privacy be used in court? It should not be allowed to be used, that is my belief...

Will the police 'openly' use this power - i.e. section 2(b) by entering premises and installing these devices to psychologically instill 'fear' and attempt to silence advocates for rights and justice? Most likely...

From a perusal of some of the grounds for detention of persons who have been detained under the ISA in the past, it is obvious that the police have already been listening in on private conversations, bugging phones, monitoring emails, etc - BUT once this is given 'legality' as is being done through this act - it is even more dangerous and wrong for now whatsoever 'evidence' gathered could also be used against persons. Most importantly, it is a blatant invasion of privacy..

6. (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer—
(a) to intercept, detain and open any postal article in the course of transmission by post;
(b) to intercept any message transmitted or received by any communication; or
(c) to intercept or listen to any conversation by any communication.

(2) The Public Prosecutor, if he considers that it is likely to contain any information relating to the communication of a security offence, may—
(a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or
(b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence.

Sensitive information to be used as evidence by the Public Prosecutor - the avoidance of pre-trial disclosure

The amendments allow for the Public Procedure to evade the duty of disclosure provided for in section 51A - i.e. the right of the accused to be able to see the 'evidence' that will be used against him/her in trial, and this is a most important right to enable the accused to prepare his/her Defence.

Worse still, the Public Prosecutor can make an application to court ex-parte (i.e. without the knowledge of or the right of the accused person  having the right to be heard) to allow them to evade the duty of full disclosure...

When the Public Prosecutor hides evidence from the accused, it  is very unjust - for the accused will be denied the right and opportunity to present a 'proper defence' --- suddenly to be surprised by 'previously undisclosed evidence' in mid-trial that may completely destroy the very defence of the accused. In any trial, there may be a variety of possible defences...and strategies that the accused's lawyer may proceed on, and the hiding of 'evidence' until it is disclosed in trial is very very wrong. Gone will be the opportunity of the accused to verify and investigate whilst defence is being prepared to counter that evidence, or its' source or its credibility...or relevance.

Remember, we are talking about the situation when a person is being charged and will be tried - and thus pre-trial disclosure is fundamental and an important right to the accussed. We certainly do not want convictions based on trickery or 'dishonesty' - but convictions based on the truth where the accussed has been given all opportunity and rights to properly defend himself/herself against any charge.

Now, even the courts power to direct Public Prosecutor to reveal 'sensitive information' is taken away if 'if the Minister certifies that the production of the statement or summary is prejudicial to national security or national interest.'. There is NO mention about the availability of judicial review to challenge the Minister or the Public Prosecutor...

Note section 51A is already bad when it provides that the  'prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.' - This fact may thus never even be revealed to the court. This fact that is 'favourable to the accused' , it it was disclosed would likely result in a finding of not guilty...

- 8. (1) Notwithstanding section 51A of the Criminal Procedure Code, if the trial of a security offence involves matters relating to sensitive information the Public Prosecutor may, before the commencement of the trial, apply by way of an ex parte application to the court to be exempted from the obligations under section 51A of the Criminal Procedure Code.

Section 51A of the Criminal Code is this...

51A.  Delivery of certain documents. (Criminal Procedure Code)
(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:
(a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;
(b) a copy of any document which would be tendered as part of the evidence for the prosecution; and
(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.
(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.
 Admissibility of intercepted communication

- Today, is very easy for people to tamper with recordings, etc - splicing it together to suit the intended purpose, and as such the inability of the accused person's to challenge the ' the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done..' with regard the alleged intercepted communication is definitely very dangerous. In the 1987 ISA detentions in Singapore, there was also allegations of doctored pictures, etc - but in 2012, it is even more easy to 'doctor' or even create 'evidence' ...

Admissibility of intercepted communication
24. Where a person is charged for a security offence, any information obtained through an interception of communication under section 6 shall be admissible as evidence at his trial and no person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done
under section 6.

Admission of confessions - this goes against even the Criminal Procedure Code..
- here they want to admit confessions in writing by the Sessions Court Judge - certainly not at all safe.

1- The Session Court Judge is a public servant - and unlike High Court Judges and judges of the higher courts is not even protected by measures needed to ensure their independence. [Now Session Court judges are under the Judicial and Legal Services Commission - and this is also the same Commission under which Public Prosecutors are. He may also be a former Public Prosecutor. ]

2 - In Hong Kong, for example, when it comes to confessions and questioning, all is recorded by video - and not just from one angle but from at least 3 angles, and these are made available to the accused's lawyer - surely in 2012, we must not only talk about the admission of statements/confession just in writing but also with the said video recording of the process that will also show the court the state in which the accussed was when his confession was recorded, his demeanour, the presence/absence of other police personnel or 'intimidations', threats,...

3 - Confessions should never be admitted as evidence

(2) Such statement or confession shall be recorded in full in writing by the Sessions Court Judge to whom it is made and shall then be forwarded to the court before which the case is to be tried.

Finally, I saw that this Bill have been uploaded on the Parliament Website, and above are some of my initial comments about this Bill. 

Note also that what the government intends to repeal is just the ISA - not the other 2 laws that allow for Detention Without Trial, which could very easily be used like the ISA. Emergency (Public Order and Prevention of Crime) Ordinance 1969 could, I believe, very easily be used against persons who the ISA was used before, more so since there are now 'new crimes'....

All Detention Without Trial Laws need to be repealed...

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