Major overhaul in CPC to curb police abuse

Source: http://www.malaysiakini.com/news/51225

Major overhaul in CPC to curb police abuse
Beh Lih Yi May 18, 06 4:43pm

Wide ranging amendments to the Criminal Procedure Code (CPC) have been
proposed by a parliamentary select committee with the aim to safeguard basic
human rights of a detainee and to check on rampant complaints of police
abuses.

The committee, headed by Home Minister Radzi Sheikh Ahmad and tasked to
review the CPC and the Penal Code, has proposed several significant
amendments over the CPC in its newly-released report tabled to the Dewan
Rakyat last Thursday after a two-year-long review.

The proposed amendments are scheduled to be debated in the next Dewan Rakyat
sitting in June.

One of the significant proposals is to amend section 117 of the CPC by
breaking the remand order period into two stages and categories. The move is
to ensure the magistrate will exercise more restraint in issuing a remand
order, said the committee.

The committee has proposed that for the investigation of an offence which is
punishable with imprisonment of less than 14 years, the magistrate may issue
a remand order not more than four days on the first application and not more
than three days on the second application.

Whereas for an offence that is punishable with the death penalty or
imprisonment of more than 14 years, the magistrate is empowered to grant up
to seven days of remand order on the first application, followed by another
maximum seven days on the second application.

‘Chain smoking’ issue

At present, if investigations cannot be completed within 24 hours of an
arrest, police have to bring a detainee before a magistrate for a remand
order of not more than 15 days. However there have been increasing concern
that the remand orders have been given too arbitrarily.

During the public hearing, the committee was also told of cases where
detainees were brought before other magistrates after the 15-day remand
order expired so the investigation officer could get another order and in
one instance, a detainee was remanded up to two months.

This consecutive detention is popularly known as ‘chain smoking’ among
lawyers.
“To avoid the ‘chain smoking’, the investigation officer will be required to
state in his investigation diary whether the detainee has been detained
before when requesting for a remand order,” the committee said in the
report.

The committee also seeks to amend the CPC provision so that the magistrate
will consider the prior remand order period when granting a new remand
order. The magistrate must also allow the detainee to be represented by
himself or a counsel of the detainee’s choice.

“The committee is of the opinion that these amendments will balance between
the basic rights of a person (detainee) and the enforcement or investigation
officer (police),” the report stated.

Oppose to ‘arrest first, investigate later’

In relation to the abuse of the remand order by the police, the committee -
cited the Royal Police Commission’s report - attributed it to the police
practice of ‘arrest first, investigate later’.

The committee nonetheless concluded that police should not continue this
exercise to be in line with the commission’s recommendation that an
investigation officer should be efficient and obtain sufficient evidence
before making an arrest.

In another laudable move, the committee has proposed to amend section 112
(5) and 113 of the CPC by making any statement made by a person to a police
officer during police investigation will be inadmissable as evidence in
future.

Amendment is also sought to abolish the police power in recording a
cautioned statement.

“The Royal Police Commission had recommended section 113 to be repealed
because there were frequent allegations against the police for torturing a
detainee during interrogation in order the latter make a confession (in
coercion),” the committee explained over the proposed amendment.

Section 115 of the CPC, which allows a detainee’s confession to be recorded
before a magistrate, was also proposed to be repealed over several grounds.
This includes the credibility of the confession before an inexperienced
magistrate might be challenged in court.

Call for new law on coroners’ court

In view of the overwhelming feedback received by the committee revealing
that the basic rights of a detainee is often ignored, the committee has
proposed to insert a new section of 28A that specifically deals with the
rights of a person arrested.

The police will be required to inform the detainee on his ground of arrest
as soon as possible; provide free-of-charge facilities for the detainee to
inform his relative, friend or lawyer within 24 hours; and defer any
interrogation until the detainee is given time to seek legal advice.

The committee said these amendments are to ensure a detainee’s fundamental
rights are safeguarded as guaranteed under the Federal Constitution. It
emphasised that these rights must be followed and cannot be neglected,
except in certain situations.

“Exceptions are only given in situations if these facilities are provided,
it will lead to the destruction of an evidence, causing the detainee’s
accomplice to flee or the safety of others will be threatened,” said the
report.

Meanwhile, the committee said based on the amendments it proposed in the
report, it suggested a new Coroners’ Act to be enacted. The new legislation
will pave the way for the coroners’ court to be set up and smoother inquest
procedures to probe deaths under suspicious circumstances.

Over the years, there have been numerous cases of deaths in police custody,
prompting claims of brutality and neglect. A well publicised case was that
of the mysterious death of G Francis Udayappan, which ended only after a
two-year court tussle between the family and police.

The committee has also proposed for the definition of ‘terrorist act’ to be
amended under the Penal Code, following concerns among professionals such as
lawyers and accountants over a controversial anti-terror law passed three
years ago.