Are we in an emergency for a new Emergency Ordinance?

ARCHIVES 2013

By MT Webmaster On Aug 2, 2013

The truth is, our police have to outsmart the criminals. And they are not. Sometimes, to deal with these hardcore criminals some ingenuity is needed. Al Capone, a famous American gangster in the Prohibition era, was ultimately charged with tax evasion despite all the bad things he have done due to a lack of evidence. No matter what, his control over his criminal empire diminished rapidly after his imprisonment, and I would say it was still a success.

Nicholas Chan, The Malay Mail

Around April 2013, in the midst of the pre-election fever, I noticed something prevalent in the newspapers besides the usual mudslinging political rhetoric and “feel-good factor” reporting. It is that we have people being gunned down in the streets, mob style, some in broad daylight and in front of their family members. The feeling that these cases are on the rise can’t be shaken off and without official statistics to confirm or disprove my hunch, I proceeded with a news collation research, counting the total number of gunshot murder cases in the first four months of 2013 and then compared it to the number of cases in 2012. In order not to miss out any cases, the count was being done across 12 newspaper media, covering the English, Chinese and Malay newspapers as well as news portals.

Even with expectations of seeing an increase, the results still arrived as a shock to me. The number of cases reported in the first four months of 2013 only lagged behind the total number of cases reported in 2012 by two cases. That means if we extrapolate the data, assuming the trend of prevalence is consistent, the number of gunshot murders in 2013 will be three times more than the cases happened in 2012. I have since written an analysis of the research and it can be found at Penang Monthly.

The Logic of Preventive Detention

With the results formally published, it worries me that the facts found would be hijacked in support of the re-enacting of preventive detention laws that is similar to Emergency Ordinance 1969 (EO). After all, this increase of cases in 2013 coincides with the repeal of the EO, and hence partially validates Home Minister Zahid Hamidi and Inspector-General of Police Khalid Abu Bakar’s theory that the EO detainees released are responsible for this spate of violent killings. This contention could not be disproved without more in-depth research and it is also very likely they have come up with the theory without any of it. This is just déjà vu as the EO repeal was also previously attributed as a blanket cause for the increase of all sorts of crimes, including the property crimes, which was solidly debunked by parliamentarian Tony Pua by pointing out that crime is already on the rise even with the EO in place.

So let us zoom in into this particular type of crime, gunshot murders. Let us be more controversial and assume that some of the cases are caused by the former EO detainees. Is that a reason to warrant a return of preventive detention laws, which is something so archaic that none of the police forces of the developed countries are using them anymore. The logic of their absence is simple, the adversarial justice system (including ours) runs by the doctrine that everyone is innocent before proven guilty, so how can one be detained without being proven his/her guilt in the courts? I believed that is the reason that when the prime minister announced the repeal of the EO and other similarly antiquated laws, he did not announced that there will be any replacements. The Internal Security Act (ISA) was repealed with such a promise, and hence the Security Offences (Special Measures) Act (SOSMA) was born.

The constant argument for preventive detention enthusiasts is that the America has the Patriot Act and Guantanamo for indefinite detention without trial, so why can’t we? But then this would be comparing apple with oranges if we are talking about the EO here. The Patriot Act and Guantanamo are only used on terrorists, that means individuals or organisations that are capable of large-scale damage. They have never used it on criminals, not even the serial killers the country is somehow infamous of producing. For the same purpose, we already have the SOSMA, which is notably quite a remarkable reform seeing that terrorists and even the recent insurgents in Lahad Datu have not just been detained under the law, but also charged in the courts because the law no longer allows indefinite detention like the ISA does.

Besides already having the SOSMA to cover terrorism and militant extremism, there are two more reasons that we should not have the re-enactment of an EO equivalent. Firstly, although any live lost is a loss, but these gunmen or hitmen are not people who could unleash potential calamity on lives and public property. If they could or they planned to, they will be labelled as terrorists. Second and the more important reason is, the police have not exhausted all means in curbing gunshot killings, and hence jumping straight back to preventive detention is not a justifiable move. Preventive detention on criminals must only be a last resort, if it is not the last resort, we must have been taking the easy way out again. So are we?

An Unrepentant Force

In 2011, now Kluang MP Liew Chin Tong raised the issue of the misallocation of manpower in the police force in battling crime, stating from official statistics that only 14 per cent of the total police force is in the crime-tackling divisions (criminal investigation, narcotics and commercial crime investigation). Most revealing is that a disproportionately large chunk of the force is in management, 41 per cent. One would have expected the police force to implement remedial policies to address such concerns by now. But a recent query in Parliament by Kulai MP Teo Nie Ching has revealed that the same problem exists, despite an increase in the number of police officers within the crime-tackling divisions, their proportion remains the same, roughly 14 per cent of the force. Management still remains the largest division of the force, amounting to 42 per cent. One might be anxious to ask, who are these management police officers managing? Certainly not our criminals.

Then comes the second point, are our police adopting a very professional and thorough investigative culture as do the best police forces in the world does? In my opinion, our police force seems to be facing an identity crisis now when the old ways of policing, that usually include coercive interrogation and forced confessions could no longer be used. Death in custody is no longer tolerable. It would appeared that they are still struggling with this transition period whereby the weight of criminal investigation and even prosecution has to be shifted towards more forensic evidence and effective intelligence based, rather than preventive detention and police brutality.

No doubt there are some successful convictions that rely on science and good police work; it is still worrying when I recalled seeing in the newspapers that a mother of a suspected abduction victim is holding the gown the girl was allegedly wearing during the night of her kidnapping for reporters to photograph. That is a piece of vital physical evidence that should have been collected by the police for further analysis. Now the item is already contaminated due to the contact by the mother and who knows what. Its admissibility in court will be significantly challenged.

Criminal Cases Need Whistleblowers Too

Apart from forensic evidence which is expected to be very scarce in these “hit and run” assassinations, witness testimony is also very important in the investigation and sometimes prosecution of such cases. However, as most of these cases involved feuds and interests of the underworld, the witness has to be offered substantial whistleblower protection for him and his family’s safety. But are they? Do these deep throats in the criminal underworld trust the police to offer them protection? Can they when a member of the public, MyWatch chief R. Sri Sanjeevan, was shot after he intended to expose some criminal links within the police?

This enforces the view that whistleblower protection was never the prevailing culture of Malaysia’s government. Rafizi Ramli, who exposed the National Feedlot Centre (NFC) scandal, was denied protection and even charged with violating the Banking and Financial Institutions Act. The parent who posted pictures of children dining in the changing room in a school was recently threatened with investigation under the Sedition Act. No country for brave people, even when they are speaking the truth, ya?

Taking Control of Crime means Taking Cognisance of Reality

This scream and kicking for the return of the EO is just a natural response of a complacent force towards change. It is obvious that the police are frantically seeking ways to take control of a situation they used to have control. That is understandable, since they are the ones that are supposed to be the vanguard of law and order. However, there is a danger of them resorting to short-circuited thinking without profound analysis on the failures of the police. Such shortcut solutions will most likely be symptom curing reliefs that are impractical in the long run.

To take control of crime means taking control of reality, not thwarting it. The reality is that we have progressed far enough away from the days of insurgencies and communal violence to use detention without trial as a crime-fighting tool. And if we deny that reality alongside with the fact that our police just aren’t modern and professional enough, what the new EO would bring us will be a state of police rather than a state of law. That will also mean one more victory for the bad guys.

* Nicholas Chan is a research analyst with Penang Institute. He is a forensic scientist by education.