Good riddance to EO

Now that they agree that we have a problem, the authorities claim that this is because they can no longer rely on the Emergency Ordinance to help them fight crime. Specifically, the law is known as the Emergency (Public Order and Prevention of Crime) Ordinance 1969), as there are actually several Ordinances promulgated under three declarations of Emergency.  But for ease of reference, we shall refer to this particular Emergency Ordinance as the “EO”.

Flashback – on the eve of Malaysia Day, 2011, the Prime Minister announced several democratic reforms, one of which was to table a motion in Parliament to end three declarations of Emergency. True to his word, the motion was tabled in the Dewan Rakyat and passed on Nov 24, 2011. On Dec 20, 2011, the Dewan Negara similarly passed the motion.

With that the Emergency ended and set in motion the constitutional provision to also end, within a period of six months, all laws passed under the powers given to the Government to enact emergency-related legislation. The six months period expired on June 19, 2012, ending the operation of the EO once and for all.

Purportedly, this is the reason why the crime rate has increased. The authorities, it is claimed, no longer have this powerful arsenal to combat crime. They are “handicapped”; that is why the criminals have the upper hand. The solution? Bring back “EO-type legislation”.

First of all, it is simply not possible to bring back such laws. The EO was promulgated under a declaration of Emergency, which allowed the Government extraordinary powers to deal with threats to public order. You cannot bring back the EO because there is no longer a standing declaration of Emergency.

The EO was promulgated in 1969. Its preamble stated the existence of a grave emergency threatening the security of the country, in reference to the race riots of that year. It also made reference to the fact that when it was promulgated, Parliament was dissolved and that immediate action was required to secure public order, suppress violence and to prevent crime. Most tellingly, it was promulgated on May 16, 1969, three days after the race riots of May 13.

Clearly, the EO was intended to deal with the aftermath of the race riots. But the authorities have used the EO to arrest individuals and detain them without trial and without charging them in Court. The EO has been abused and to suggest that it be resurrected is to allow for it to be abused again.

For the EO is a powerful tool in the hands of the Government. Under the EO, the Inspector-General of Police may detain a person up to 60 days. Thereafter, the Home Minister may issue a Detention Order to detain the person without trial for two years, renewable for a further two years indefinitely. Or if he may issue a Restriction Order to restrict the person to a particular area for two years. These powers cannot be challenged in Court, except if there is a procedural non-compliance.

Detention without trial takes away a person’s liberty without allowing him to meet his or her charge in Court. Some have argued that preventive detention is necessary, but even those arguments are limited to terrorism.

Detention without trial in order to combat crime is disproportionate and unreasonable. In fact, there is already an option to detain a person for purposes of investigations before a charge is laid. Under the Criminal Procedure Code, the police habitually ask for a remand order to detain a person. Depending on the crime, the court may order a person to be detained for up to 14 days.

Why do you need to detain him up to 60 days to two years?

Crime has been on the rise for the past few years. In fact, it was just over a year ago on June 10, 2012 that the then Home Minister insisted that the crime rate was down and that high crime was just a “perception”. Three years before, the Government promised to tackle street crime and focus on hotspots throughout the country. All this was before the EO became inoperative on June 19, 2012.

The crime rate has been a problem for years, not just in the past one year. It is ridiculous to suggest a causal link between the EO and the crime rate. Especially when we look at who the EO detainees were. The detention centre in Simpang Renggam was not filled hardcore criminals and kingpins. I have represented youths detained under the EO. What were their alleged wrongdoings? Stealing motorbikes.

I have also represented a minor who was detained under the EO and restricted far from 

his parents. Forget not also the EO Six – six activists from Parti Sosialis Malaysia, including the re-elected Dr Jeyakumar Devaraj, Member of Parliament for Sungai Siput. They were released after a month and not charged with any crime.

So what was it about using the EO to combat crime, again?