KUALA LUMPUR, IPS: Malaysia’s parliament has passed a set of amendments to the Penal Code and the Criminal Procedure Code that even some highly critical opposition lawmaker’s say are “fantastic and phenomenal” for bettering citizen’s fundamental rights over police powers.
The changers are part fulfillment of Prime Minister Abdullah Badawi’s election pledge to reform society and promote transparency, accountability and human rights.
However human rights activists and lawyers say translating the “fantastic” legal changes into everyday police procedures to protect and promote the individuals human rights is a major challenge.
The wide ranging amendments, in the making for two years, were done after consultations with 67 NGOs and 35 individuals, most of them being human rights activists.
The amendments infuses human rights principles into the criminal justice system, curtails police powers of arrest and detention and gives detainees more rights to see family, hear the charges, call a lawyer and even refuse to confess.
“We were several decades behind other countries in humanizing our laws. But now we have made the necessary legal changes,” said opposition lawmaker M. Kulasegaran.
“The challenge now is to make it work,” he told IPS.
“The vast majority of the proposed changes are positive improvements over the current position. The Bar Council commends and congratulates the Select Committee for introducing these progressive changes,” said Bar Council president Mr Yeo Yang Poh.
Under the changes police must inform an arrested person the reasons for the arrest.
The person has reasonably and immediate right to contact family, friends or legal counsels.
The taking of cautioned statements that was often done under duress or inducement has been abolished outright.
Detention period has been limited from a flat two-week to a graded system according to the severity of the alleged offense.
Magistrates have been given powers to inquire and record reasons for detention and other statements from detained persons.
Police powers to search detained people have been curtailed, tightened and divided into four categories namely, pat down, strip, intimate and intrusive.
Intimate search requires presence of a senior officer and intrusive search can only be done by medical personnel.
Besides promoting human rights, other legal changes introduce new offences to better protect women and children.
A new Section 375 makes it an offence for a person in authority to use his position to have sexual relations with a woman. It will be considered as having committed rape.
Another section 375A provides for a five-year jail term for any man who “hurts the wife or puts her in fear of death, or of being hurt, with a view of having sex.”
Rape is punished with 20 years in jail with a minimum provision of five years.
Rape that leads to the death of the victim is punished with not less than 15 years’ jail and a maximum of 30 years and whipping by cane.
The changes were proposed by a Parliamentary Select Committee that Mr Abdullah created a year after coming to office. The committee toured the country inviting public comments in a transparent way before making the changes.
While welcoming the changes lawyers also voiced their fears that the government has also introduced “sweeping” amendments to fight “terrorism” in a country where terrorism is and has never been a serious public issue.
The changes allow police to intercept communication between suspected terrorist and arrest suspects without a warrant.
A ‘terrorist act’ is loosely defined as an action done with the “intention of advancing a political, religious or ideological cause.”
Critics say major changes protecting human rights is good but worry that other draconian laws like the Terrorism Act and Internal Security Act (ISA), that allows for detention without trial, remain and is a threat to fundamental liberties.
“The power granted under the terrorism provisions are similar to the ISA law,” said Dr Wan Azizah Wan Ismail, president of the opposition Peoples Justice Party.
“Under the ISA, the police have been granted absolute powers that have resulted in thousands of people being detained on suspicious ground for threatening national security. We have many evidences that the ISA has been abused,” Dr Wan Azizah said.
While more legal changes are needed to protect individual liberties, lawyers said, the challenge now is to make the changes work at every level.
“The danger is that these changes that promote human rights might just sit in shelf and the old ways of arrest first and investigate later would continue,” said lawyer S. Sivanesan, senior leader in the opposition Democratic Action Party or DAP.
“The law might have changed but the police mindset has not changed,” he said.” They will stick with the old ways.”
Lawyers are urging the government not to have the legal changes “will work by itself” attitude but to actively publicize the benefits of the amendments.
They say corruption, police obstinacy and public ignorance will defeat a good set of laws.
“We need to retrain the police and create a new mindset within the force to respect human rights,” Sivanesan told IPS.
Above all lawyers want to see that the new rules for arrest and detention are enforced in the police force and offenders adequately punished.
“We urgent need an independent oversight committee to check and balance abuses in the police force,” said another lawyer K. Uthayakumar who heads a campaign to set up a permanent oversight committee to check the police force.
“The police force is one institution that is most resistance to change,” he said adding it is the government’s duty to enforce change and not delay any longer setting up an oversight committee.
The government has promised to set up an oversight committee after two commissions of inquiry into the police force recommended such an organisation but the take off has been delayed because of stringent opposition from the police force.
The changers are part fulfillment of Prime Minister Abdullah Badawi’s election pledge to reform society and promote transparency, accountability and human rights.
However human rights activists and lawyers say translating the “fantastic” legal changes into everyday police procedures to protect and promote the individuals human rights is a major challenge.
The wide ranging amendments, in the making for two years, were done after consultations with 67 NGOs and 35 individuals, most of them being human rights activists.
The amendments infuses human rights principles into the criminal justice system, curtails police powers of arrest and detention and gives detainees more rights to see family, hear the charges, call a lawyer and even refuse to confess.
“We were several decades behind other countries in humanizing our laws. But now we have made the necessary legal changes,” said opposition lawmaker M. Kulasegaran.
“The challenge now is to make it work,” he told IPS.
“The vast majority of the proposed changes are positive improvements over the current position. The Bar Council commends and congratulates the Select Committee for introducing these progressive changes,” said Bar Council president Mr Yeo Yang Poh.
Under the changes police must inform an arrested person the reasons for the arrest.
The person has reasonably and immediate right to contact family, friends or legal counsels.
The taking of cautioned statements that was often done under duress or inducement has been abolished outright.
Detention period has been limited from a flat two-week to a graded system according to the severity of the alleged offense.
Magistrates have been given powers to inquire and record reasons for detention and other statements from detained persons.
Police powers to search detained people have been curtailed, tightened and divided into four categories namely, pat down, strip, intimate and intrusive.
Intimate search requires presence of a senior officer and intrusive search can only be done by medical personnel.
Besides promoting human rights, other legal changes introduce new offences to better protect women and children.
A new Section 375 makes it an offence for a person in authority to use his position to have sexual relations with a woman. It will be considered as having committed rape.
Another section 375A provides for a five-year jail term for any man who “hurts the wife or puts her in fear of death, or of being hurt, with a view of having sex.”
Rape is punished with 20 years in jail with a minimum provision of five years.
Rape that leads to the death of the victim is punished with not less than 15 years’ jail and a maximum of 30 years and whipping by cane.
The changes were proposed by a Parliamentary Select Committee that Mr Abdullah created a year after coming to office. The committee toured the country inviting public comments in a transparent way before making the changes.
While welcoming the changes lawyers also voiced their fears that the government has also introduced “sweeping” amendments to fight “terrorism” in a country where terrorism is and has never been a serious public issue.
The changes allow police to intercept communication between suspected terrorist and arrest suspects without a warrant.
A ‘terrorist act’ is loosely defined as an action done with the “intention of advancing a political, religious or ideological cause.”
Critics say major changes protecting human rights is good but worry that other draconian laws like the Terrorism Act and Internal Security Act (ISA), that allows for detention without trial, remain and is a threat to fundamental liberties.
“The power granted under the terrorism provisions are similar to the ISA law,” said Dr Wan Azizah Wan Ismail, president of the opposition Peoples Justice Party.
“Under the ISA, the police have been granted absolute powers that have resulted in thousands of people being detained on suspicious ground for threatening national security. We have many evidences that the ISA has been abused,” Dr Wan Azizah said.
While more legal changes are needed to protect individual liberties, lawyers said, the challenge now is to make the changes work at every level.
“The danger is that these changes that promote human rights might just sit in shelf and the old ways of arrest first and investigate later would continue,” said lawyer S. Sivanesan, senior leader in the opposition Democratic Action Party or DAP.
“The law might have changed but the police mindset has not changed,” he said.” They will stick with the old ways.”
Lawyers are urging the government not to have the legal changes “will work by itself” attitude but to actively publicize the benefits of the amendments.
They say corruption, police obstinacy and public ignorance will defeat a good set of laws.
“We need to retrain the police and create a new mindset within the force to respect human rights,” Sivanesan told IPS.
Above all lawyers want to see that the new rules for arrest and detention are enforced in the police force and offenders adequately punished.
“We urgent need an independent oversight committee to check and balance abuses in the police force,” said another lawyer K. Uthayakumar who heads a campaign to set up a permanent oversight committee to check the police force.
“The police force is one institution that is most resistance to change,” he said adding it is the government’s duty to enforce change and not delay any longer setting up an oversight committee.
The government has promised to set up an oversight committee after two commissions of inquiry into the police force recommended such an organisation but the take off has been delayed because of stringent opposition from the police force.
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