COMMENT Suaram is extremely concerned about the use of the Prevention of Crime Act 1959 (PCA) to address the incidence of crime. We believe the Act could be easily misused, and call on the authorities to ensure that any steps taken to prevent crime be based on the rule of law and human rights standards.

 

azlan The PCA was created to control ‘criminals, members of secret societies and other undesirable persons’. It allows for arrest for certain crimes, followed by an inquiry to determine if the accused should be placed on a register and under restrictions.

Under this law a person can be detained for a maximum period of 71 days. It is currently being used as part of police operation known as Ops Cantas and more than 200 suspected criminals have been arrested since Aug 17.

 

Firstly, it is unclear if a person who is detained under the Act will be guaranteed their rights as provided for international law and standards including the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UN General Assembly, Dec 9, 1988).

 

These include the rights to be informed of the reasons for arrest at the time of arrest;  to be promptly informed of any charges; the right to legal counsel; the right to access to family and the right to challenge the lawfulness of the detention.

Some of these rights are provided in Section 28A of the Criminal Procedure Code (CPC), but we are concerned that individuals will be denied these rights.

S NONE ection 28A states that anyone arrested and detained shall have the right to contact a legal practitioner of their choice within 24 hours from the time of his arrest and for their lawyer to be present and to meet the arrested person at the place of detention before the police commences any form of questioning or recording of any statement.

They also have the right to communicate with a relative or friend with regard to their whereabouts within 24 hours from the time of arrest.

Secondly, we are concerned about the lengthy remand period in the Act which opens it up for possible abuse. Although there will be some judicial oversight over the remand process, there are concerns that - without proper guideline and advice - the magistrate may just rubber-stamp the remand application.

Suaram has documented numerous cases of detainees being tortured or otherwise ill-treated when held for long periods in custody.

We believe that using another law which allows for a long detention period will put detainees in a vulnerable situation. This may also lead to increased police corruption.

We have documented cases where police have extorted money from former Emergency Ordinance detainees and their families to secure the individual’s release.

Impartiality of inquiry

 

Another concern is the role of the inquiry officer who reviews evidence to determine whether the person arrested under the PCA is guilty of a registrable offence. The officer, who is appointed by the home minister, will report to the minister the grounds for placing someone on the register.

The law is silent if accused persons can defend themselves during the inquiry, but is allows the officer to hold an inquiry without the presence of the accused. Furthermore, the Act is silent about the presence about lawyers during the inquiry.

Suaram questions the impartiality of such a process. The determination if a person is guilty of a criminal offence should be decided by a competent, independent and impartial tribunal and not by an appointee of a political institution.

Decision makers must free to decide matters before them impartially, on the basis of the facts and in accordance with the law, without any interference, pressure or improper influence from any branch of government or elsewhere. This lies at the heart of due process of law.

azlan According to Article 11(1) of the Universal Declaration of Human Rights, everyone charged with a criminal offence has the right to defend themselves against the charges. They also have the right to be assisted by lawyers.

 

Suaram recognises the need to address the current state of insecurity that many feel especially with the increase in gun crimes. However, measures taken by the police must not violate the law or the rights of those arrested and detained.

 

In the long run, there is a need to reorganise the police force and ensure they have better training in order to combat crime.

More resources also need to be reallocated into the Criminal Investigation Department so that the police can ensure that cases are solved through proper investigations backed by solid evidence.

Then, hopefully, there would be no need to resort to laws which undermine due process and fundamental human rights.

NALINI ELUMALAI is executive director of human rights NGO Suaram.