Friday, November 01, 2013

Case Close - when persons are shot dead by police or detained without trial. Is that what Malaysians want?

It is always easy to arrest and detain people and tell the whole world that the perpetrator of the crime has been 'punished'. Case closed.

It is always easy to shoot and kill persons and then boast that the killed was really a criminal, and his/her killing has ensured that a perpetrator of this and that crime has been meted out justice. Case closed.

But who tells us that these are 'criminals' - it is the police and the government. But doubt remains as to whether these persons were really criminals, or whether they are really innocent of the crimes they are alleged to have committed. Whether they are being detained without trial or 'shot and killed' just so that the police (and the government) can tell people that perpetrators have been dealt with or 'Case closed'.

There is just too much room for INJUSTICE - a wrong person detained, and worse still killed when they really are innocent persons. 

That is why good, civilized and justice loving people all over the world, including Malaysia, insist on the right to a fair trial before an independent court before a person can be deprived of his/her liberty or life.

We demand the right be given to an accused person to be able to defend themselves - to be able to challenge the witnesses and evidence the police(prosecution has). 

In Malaysia, like in many other countries, after the prosecution has closed their case, the Judge evaluates the evidence tendered, determine its credibility and see whether it is sufficient to show that there is indeed a case against the accused person. If so, then and only then would the accused person be asked to present their case - call their witnesses, etc.

At the end of the day, the Judge determines whether the prosecution has managed to prove the charge against the accused BEYOND REASONABLE DOUBT - a high standard indeed because we do not want to make a mistake of sending the wrong person/s to prison or to the gallows..

But a judge could make a mistake, and that is why we have the right to be able to appeal to higher courts, and in Malaysia that right is generally to 2 appeals. If you are not happy with the decision of the High Court, you can appeal to the Court of Appeal(where at least 3 Judges sit in the panel hearing the appeal), and if still not happy you can appeal to the Federal Court(where at least 3 Judges sit in the panel hearing the appeal).

After your appeals have been exhausted, you can still apply for Royal Pardon.

Police and prosecution makes mistakes
- well, look at the number of persons charged and tried in court, and then found to be not guilty
- look at the number of persons who have been charged in court, and subsequently the charges are withdrawn and the accused persons  are DNAA [Discharge not amounting to acquittal] or just discharged,

Judges make mistakes
- Look at the number of times that the appeal courts have overturned convictions and acquitted persons
-  Look also at the number of times that the appeal courts have reduced charges, or even reduced sentences

In this modern age of CSI, DNA, CCTV, etc ... the police/prosecution have so much more skills and capacity for investigation to get the required evidence/witnesses to convince a Judge (and the Appeal Courts) that a person is guilty of a crime he has been charged with.

Malaysia acknowledge the importance of the right to fair trial

In so doing, has taken the initiative to make available Legal Aid to the poor, i.e. to those with income of RM30,000 or less annually. This is to ensure that the right to be defended by a lawyer for those who cannot afford a lawyer is there. (see and likewise the Malaysian Bar since even before this have been providing Legal Aid [Before this, the Malaysian government did not provide legal aid for those charged in criminal courts]

For those charged with offences carrying the death penalty, in Malaysia if you do not have a lawyer, the court will appoint a lawyer for you.

Malaysia also amended the law requiring now the prosecution to provide documents/evidence that have been gathered during the investigation to the accused/lawyer. This is essential and now allows the accused and/or their lawyers to better prepare for the case. Prosecution by law is required to even provide the defense any evidence/document that is 'unfavourable' to the prosecution.

Malaysia, also noting the danger of using confessions and statements made by the accused after being arrested has now barred the use of such confessions/statements by the prosecution. The accussed(Defence) have every right to use them if they want to.

Of late, Malaysia also repealed the ISA and some laws that allowed for Detention Without Trial - again a positive move

"I have got a very positive record, for example I have disbanded the Internal Security Act, which is detention without trial," he said, adding the abolition of the Emergency Ordinance (EO)..." - Prime Minister Najib Razak

But alas, there is some concerns that Malaysia may be sliding back when it comes to human rights..

A new Detention Without Trial law...?

Introduction of a new Detention Without Trial vide the proposed amendment of the Prevention of Crime Act.  

No trial and no right to defend oneself against the allegations made for Detention Without Trial.

An innocent person detained without trial cannot also say and let alone prove that he is being wrongfully detained under a false allegation. Yes, you cannot challenge the decision for your detention  - you cannot file a case asking the Judge to challenge the reasons for your detention.

'Shoot to Kill' incidents

There are just too many people being shot dead by the Malaysian police, and worse still the police goes out and proclaim that these persons were criminals. If they were criminals, suspects or linked to crimes, surely there would be a paper trail - arrest warrants, letters/notices asking them to appear at the police station for purposes of investigation of crimes...which if they do not attend usually is followed up with an arrest warrant...

Police are empowered to arrest persons, and in so doing to use reasonable force - and there are too many incidents that raises much doubts as to whether the police went to kill or arrest. There is no open independent tribunal or mechanism that investigates and determines whether police action that kills has been justified or not.

It is all systems go for PKR vice-president N. Surendran to follow the police on their operations to nab culprits involved in gun-related crimes.Inspector-General of Police Tan Sri Khalid Abu Bakar commended Surendran for taking up the offer to have a first hand look at the difficulties police face in dealing with dangerous criminals. - Star, 15/10/2013, Police let Surendran tag along on raids against gun-toting criminals

The police invitation to MP Surendran to tag along for these raids raises questions. Police know and prepare beforehand when they go for such raids where people end up being shot dead - this is very wrong. Question is if and when the police know these suspects did they call in the suspects for investigation at police stations first - and they did not attend so an arrest warrant was issued? If there is no such attempts, then such raids are questionable. Letters/Summons to attend the police station can be send by post or served by hand. Are there such documents.

Situation is different when police arrive at a crime scene and the perpetrators are there and open fire, and the police respond and people get killed. Likewise, in an ordinary roadblock perpetrators suddenly open fire on the police. But to have planned raids where they can also invite an MP to go raises much questions..

Death in Custody

There has just been too many deaths in police custody. Some suicides? Wonder how this is possible when there is a police personnel watching the police lock-ups all the time, and the CCTVs. Of course, in the past these CCTVs did not have recording capabilities, and it makes it difficult for investigation and the Coroner's Court to determine how really a person died. Is there still torture and police brutality in Malaysia? A former head of the police beat up Anwar, ....When people in lock-ups die by reason of illness and/or medical condition, one wonders why they were not in hospitals or sent to hospitals sooner? 

The Way Forward

There is much to be done in Malaysia and the decision is with you and I, Malaysians. Our 'leaders' in government are peoples' representatives and they act on behalf of you and I - so we cannot remain indifferent but would have to decide what we want for Malaysia.

Many are just not bothered as they or their families are not (or not yet) the victims -but this is a self-centered irresponsible attitude. We have to change because all that happens reflects also on Malaysia and Malaysians, and we who silently allow injustices to continue are just as guilty as our elected representatives and our employees (the police, etc) who do these wrongs.

We have to insist the fundamental right of a fair and open trial before an independent judge be accorded to all persons (even those that police call 'gangsters' and 'criminals'), and that no one should be deprived their liberty or life with being first tried and convicted by a court of law.






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