Lawyers for Liberty is extremely shocked and concerned with the rash of proposed criminal law and procedure amendments with far reaching implications that were tabled in Parliament yesterday.
These amendments constitute the most serious assault on human rights and established legal principles since 1988 after the constitutional crisis and Operation Lallang. It is all the more deplorable since these very serious amendments were done in secret and without any consultation with opposition members of Parliament, civil society and the Malaysian Bar.
The Prevention of Crime (Amendment & Extension) Act 2013
The bill seeks to re-introduce detention without trial when all Malaysians thought they had seen the last of this most draconian legislation with the abolishment of the Internal Security Act (ISA) and the Emergency Ordinance (EO).
Under clause 19A, a person can be detained without trial for up to two years, which can be renewed indefinitely. The amendments also disallow substantive judicial review which would mean the detention order cannot be challenge in court, safe for procedural matters (which are effectively pointless).
The amendments also deny legal representation to the detainee except when his/her own evidence is taken during the inquiry process.
Further, the government has also surreptitiously amended the entire preamble of the PCA to include the provision under Article 149 of the Federal Constitution that the country is “threatened by a substantial body of persons inside and outside Malaysia to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property” thereby justifying detention without trial just like the ISA and EO.
These amendments are absolutely scandalous and an antithesis to our democratic and fundamental rights to freedom from arbitrary detention and punishment, due process, rule of law and legal representation.
It goes without saying that the amendments are unconstitutional especially since Malaysia is living in peace time with no threats of subversion, insurrection or civil unrest as envisaged by Article 149 of the Federal Constitution.
By these amendments, Prime Minister Najib Tun Razak had not only broken the promise he had made on Sept 16, 2011 to respect human rights and liberties when he announced the abolishment of the ISA and EO, he had also persistently lied and misled the public when he continuously affirmed that his government would respect human rights and liberties and will not revive detention without trial.
Although the government may argue the amendments will only target organised crimes, it is almost certain from the government’s appalling track record on the use of oppressive laws like the ISA, Sedition Act and Peaceful Assembly Act – the PCA will be misused against opposition politicians, dissidents and civil society activists.
See for example how Sungai Siput MP Jeyakumar and five other PSM activists were detained under the EO in 2011.
The Penal Code (Amendment) Act 2013
Lawyers for Liberty is further extremely concerned with the proposed amendments to the Penal Code, particularly clause 121E(1) for mutilating, destroying or insulting any national emblem or flag; and clause 121E(2) for using, recognizing or promoting the use of any flag other than the official flags – both of which carry a mandatory punishment of imprisonment between 5 to 15 years and fine.
Needless to say, these new offences transgress freedom of speech and expression as guaranteed by the Federal Constitution and are out of place in a modern and democratic Malaysia.
Further, the proposed punishment for these offences are extremely harsh and disproportionate compared to the rather minor nature of the act of civil disobedience.
In addition, clause 440A outrageously criminalises as vandalism common acts of political and human rights activism and public communication like drawing, painting and writing on both public and private property; affixing, displaying, hanging and exhibiting poster, placard, banner and bunting unless they were done with the written authority or consent of the public/private owners – offences that can be punished with imprisonment for up to three years.
The requirement for written authority is of course unrealistic and extremely burdensome and is just another underhanded tactic designed to frustrate the opposition and civil society.
The Criminal Procedure Code (Amendment) Act 2013
Lawyers for Liberty is also further extremely concerned with the proposed amendments to the CPC, particularly clauses 265A, 265B and 265C that essentially allow for witnesses to testify in secret where the accused person and his/her counsel would not be able to see, hear or cross examine the witnesses.
Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial – that justice must be done openly and transparently; the accused must be afforded an opportunity to challenge the evidence presented; and the guilt against the accused must be proven beyond a reasonable doubt.
The writer is the co-founder and advisor of Lawyers for Liberty