Cops use old law to go after gangs, legal experts at odds over what’s right for Malaysia

Beggars can’t be choosers. So, a piece of legislation as old as independent Malaya and which was not only forgotten but pretty much snorted at by law enforcement agencies when the government rolled out more draconian laws after the May 13 riots is now back in vogue – a temporary crutch for a police force under siege to do something, anything about rising crime.

Since Saturday, police have been dusting the cobwebs off the Prevention of Crime Act (PCA) 1959 and hauling in hundreds of gangsters suspected of being behind a crime wave that has not only stunned the nation but also caused concern among foreign investors.

The Act allows the police to hold a suspect for up to 72 days without being charged, a period of time police say is necessary for them to investigate and make cases against hardened criminals.

The official police narrative has been that the spike in crime was the natural consequence of abolishing the Emergency Ordinance, a law introduced after the 1969 riots that allowed gangsters and criminals to be locked up without trial.

When the EO was dismantled as part of the Najib administration’s broader approach to burnish its human rights credentials, some 2,000 hardened gangsters were released back onto the streets and the ensuing gun battles are part of a turf war between warring gangs.

This explanation for the crime wave has sparked a debate with Umno and more conservative groups calling for the re-introduction of the EO and the Pakatan Rakyat arguing that crime was rising because police personnel were being used to monitor opposition activities rather than tackling crime.

The government has announced that it is rushing through some form of preventive detention legislation to help police fight crime.

In the interim, the police are helping themselves to the PCA, which was enacted to check triad and organised crime activities.

Criminal lawyers interviewed by The Malaysian Insider recalled that the government in the old days reached for the PCA to isolate gang leaders to remote locations. This sort of restricted residence worked well then because of effective enforcement and the absence of communication tools like fax machines and mobile telephones.

Under the PCA, the suspect has to be produced before a magistrate within 24 hours of being arrested.

The suspect can be remanded up to 14 days. If further detention is needed it must be sanctioned by the deputy public prosecutor. The DPP will have to provide a written explanation to the magistrate to have it extended a further 28 days. This can be repeated after the initial 28 days expires. The various thresholds and the relatively short period of detention made the PCA a less popular tool after the EO was enacted.

Under the EO, police could detain a person up to 60 days for investigation purposes.

The police would then have to prepare a report for the home minister to further hold a suspect involved in criminal activities for two years. This detention period was prolonged if the authorities felt that the criminal was not rehabilitated.

Over the years, there was concern that the police had begun to rely too much on the EO, using it like a dragnet to nab everyone from vehicle thieves to those involved in illegal betting.

The government’s decision to use the PCA to fight the crime wave was generally accepted by lawyers, but some of them said that the Act would have to be amended to take into account changes in modern society.

For example, lawyer Shamsul Sulaiman noted: "We can expand the concept of monitoring suspects from 1959 to suit present day technology."

He pointed out that unlike the EO that called for a suspect to be physically detained, the PCA allowed for the police to monitor suspects.

Former Court of Appeals judge Datuk K.C. Vohrah said that for the PCA to be used effectively, some tweaking was necessary.

“The law only applies to Peninsular Malaysia so it needs to be amended to cover the whole country,” he said.

He also said the backdated law needs to reflect current times by including electronic monitoring.

But not everyone thinks that the PCA 1959 is the best solution to deal with the rise in violent crimes.

“The PCA is not sufficient,” said criminal lawyer Datuk K. Kumarendran.

“In the interim, it can work but the 28 days given may not be enough time for the police to complete investigations.”

Kumarendran suggested that lawmakers consider extending the number of days in detention while giving suspects access to lawyers.

Criminal lawyer Edmund Bon argued that the PCA 1959 should be reviewed first before it is used.

"It is such an old law. Everyone forgot about PCA and the police were not serious then about tackling organised crime.

"PCA is just a halfway house. For short term use, it is okay," added Bon.

For some lawyers, the question at hand was more fundamental: whether the country should continue embracing detention without trial to fight crime.

“There is no need for preventive detention when we have sufficient laws at hand to deal with criminals,” said S Thiru.

But on the other end of the spectrum, some felt that human rights considerations should play second fiddle to law and order and personal safety.

“Preventive detention is timely with the increase in crimes... We do not want security to be compromised because of human rights,” said Salim Bashir, a defence counsel.

In 1959, when the PCA was enacted, there was no such debate. Malaya was still in the throes of a communist insurgency and triad activity was rampant.