Sunday, 25 September 2016

Vital to know your rights when get arrested; comments on social media not be a serious crime

Know the law: Citizens need to know how to react if approached or arrested by police.
http://clips.thestar.com.my.s3.amazonaws.com/Interactive/police/police.mp4

YOU wake up, read the latest news updates on your mobile phone, retweet some interesting comments, and post your own reactions. Just another ordinary day, right?

Wrong. If you are not careful, that retweet or comment might land you in legal hot water.

Former journalist Sidek Kamiso found himself in that predicament early last week when a band of plain-clothed policemen banged on his door at 4.40am to arrest him for an alleged Twitter insult. They had not only come for him at an ungodly hour but also reportedly jumped over the fence to forcefully nab him.

After checking their identification, Sidek had let them in, although they did not produce an arrest warrant. The police officers then searched the house, confiscating his phone and laptop before dragging him away in handcuffs to the police station.


The conduct of the police and the nature of that alleged offence notwithstanding, how many of us would have just opened the door when the intruders commanded, “We are the Police! Open the door!” and let them in?

Confirming the police officers’ identity first is extremely important, stresses Sevan Doraisamy, executive director of human rights advocate group Suara Rakyat Malaysia (Suaram).

Many Malaysians are too quick to obey whatever the police tell them to do without first confirming the officers’ identity, says Sevan.

“We always advise the public to ask the police to identify themselves and show their identity card when they are stopped on the street by someone who claims to be the police or when the police go to their house,” he adds, highlighting the public workshops on human rights and the police that Suaram has been holding for more than a decade.

It is normal for policemen on duty on the ground to be in plain clothes, which is why it is crucial to establish their identity.
Eric Paulsen (C) arriving at the lobby of Kuala Lumpur court to have his sedition charge read to him.AZHAR MAHFOF/The Star 06 Feb 2015
Eric Paulsen (C) arriving at the lobby of Kuala Lumpur court to have his sedition charge read to him.AZHAR MAHFOF/The Star 06 Feb 2015 The laws like the CPC and IGP’s Standing Order clearly protects a person’s fundamental liberties, but they are also general. - Eric Paulsen

Senior level police officers, from the rank of Inspector and above, carry blue IDs, while constables and below carry yellow cards. Reserve police carry white IDs while red is for suspended policemen.

According to Suaram, when making arrests, conducting raids, roadblocks or body searches, a police officer of at least the rank of Inspector (with a blue ID) must be present.

“You can also ask them which police station they are from and call it to verify the officers’ identity,” says Sevan.

Another safeguard against unlawful arrests or violations of a person’s civil rights is the police warrant.

The Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar has asserted that an arrest warrant was not necessary when the police arrested Sidek at his home in Petaling Jaya, as the alleged offence, over a tweet on the death of PAS spiritual leader Datuk Dr Haron Din, fell under the Communications and Multimedia Act (CMA) 1998.

“For this offence, a warrant is not needed. For offences under the (CMA) Act, there is no need for warrants. There is no need for a warrant to detain and no need for a warrant to search homes,” he reportedly said.

The local legal fraternity was quick to refute him.

According to lawyer Siti Kasim, who represented Sidek’s family, a warrant was necessary in his case as arrests made under the CMA generally requires a warrant.
Universiti Sains Malaysia’s (USM) Research Team on Crime and Policing head Assoc Prof Dr P. Sundramoorthy. (CHARLES MARIASOOSAY/ The Star/06/ March 2016).
Universiti Sains Malaysia’s (USM) Research Team on Crime and Policing head Assoc Prof Dr P. Sundramoorthy. (CHARLES MARIASOOSAY/ The Star/06/ March 2016). 'Police personnel who violate criminal laws and other regulations will have to face the consequences'.

Lawyer Syahredzan Johan concurred, explaining that although the police have general powers to make arrests without warrants, they can only do so for offences that are listed as seizable offences under the Criminal Procedure Code (CPC), namely those carrying the maximum jail sentence of three years and above.

But for offences under the CMA which carry a maximum jail term of one year, the police would need a warrant when making arrests, he reportedly said.

Conceding that the details of the law might be beyond a layman’s grasp, Sevan advises members of the public to always demand for a warrant when they are being arrested.

What is important, he adds, is that any arrest can only be made after adequate investigation has been conducted on a case.

“You cannot be arrested if you are a witness or just to assist the police in an investigation.

“Always ask if you are being arrested, and for what charge or under what Act. There is no harm in also asking for the warrant,” he notes, adding that in any CMA case, the investigation should first be conducted by the country’s Internet regulator, the Malaysian Communications and Multimedia Commission (MCMC), before any police arrest.

And just like in the American cop movies and television series, when we are arrested in Malaysia, our fundamental rights are guaranteed, as stipulated under the Federal Constitution, the amended CPC and the IGP’s Standing Order on Arrest, says Sevan.

Just don’t expect to be read the Miranda Rights, those words many of us have grown up hearing on the telly: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

Still, as stated on the Malaysian Bar website, our right to remain silent and refuse to answer any questions when arrested is guaranteed by the Federal Constitution.

Under the Constitution, a person also has a fundamental right to be informed of the grounds of his arrest as soon as possible, as well as a right to consult and be defended by a legal practitioner of his choice.

These rights are clearly spelt out and reiterated under Section 28A of the CPC which came into force in September 2007: An arrested person has the right to be informed as soon as may be the grounds for this arrest; to contact a legal practitioner of his choice within 24 hours from the time of his arrest; to communicate with a relative or friend of his with regards to his whereabouts within 24 hours from the time of his arrest; and the right to consult with his lawyer and the lawyer is allowed 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 from the person arrested.
SEVAN DORAISAMY TAMAN SRI CHERAS HOUSING PROJECT ABANDONED COORDINATOR
SEVAN DORAISAMY TAMAN SRI CHERAS HOUSING PROJECT ABANDONED COORDINATOR 'Ask if you are being arrested, and for what charge or under what Act. There is no harm in also asking for the warrant'. - Sevan Doraisamy

“We always advise those arrested to remain silent in order not to unknowingly incriminate themselves or be forced to make a confession. You can also say, ‘Saya jawab di mahkamah.’ (I’ll answer or say it in court),” Sevan notes.

As for family members, he advises them to get the name of the police station that the arresting police officers are from and are taking their loved one to.

At the police station, he adds, they need to get the name of the Investigating Officer (IO) of the case and his or her contact details.

“The good thing now is that the police’ public communications have greatly improved, and the IO will usually give out their handphone numbers to the family members,” he says, commending Sidek and his wife, Norlin Wan Musa, who is also a former journalist, for knowing and exercising their rights when the police took Sidek to the Johor Baru police station without informing her, and when they allegedly intimidated her and tried to harass their children.

Unfortunately, says Sevan, many Malaysians don’t know their rights when they get arrested, making it easy for errant police officers to intimidate them or abuse their rights.

Lawyers for Liberty executive director Eric Paulsen concurs, stressing that the police also need to act responsibly and reasonably, in accordance to their Standard Operating Procedure when conducting an arrest.

“The laws like the CPC and IGP’s Standing Order clearly protects a person’s fundamental liberties, but they are also general, especially in their wording.

“They were drafted with the expectation that the police would act reasonably and without bias in accordance to their SOP,” he says, describing the police conduct in the arrest of Sidek and two others in relation to the “Twitter insult” as excessive and an abuse of police powers.

Human Rights Commission of Malaysia (Suhakam) chief Tan Sri Razali Ismail urges the police to defend civil liberties in Malaysia rather than repress the exercise of human rights.

“In essence, the police should be the face of human rights, and not a face of intimidation, even as the police needs to be the bulwark of the country’s security. Regulations are being promulgated in a sweeping fashion that will have the effect of threatening democratic practice and undermine the fundamental liberties enshrined in the Federal Constitution,” he had reiterated in his speech at the Malaysian Bar’s International Law Conference in Kuala Lumpur last week.

Khalid has given assurances that the police are subject to the laws and regulations enshrined in the Constitution.

“If we flout the laws, action will be taken against us. We are also subjected to the laws and regulations under the Constitution. So are the Members of Parliament,” he told a press conference after a dialogue with Universiti Utara Malaysia students in Sintok, Kedah, on the role of undergraduates in overcoming national security threats.

Universiti Sains Malaysia criminologist, Assoc Prof Dr P. Sundramoorthy agrees that nobody should be above the law, especially the police.

“Police personnel who violate criminal laws and other regulations will have to face the consequences. Everyone who gets arrested has equal rights under the Federal Constitution and the CPC, irrespective of the nature of the case, so the police and the prosecution need to adhere to the law without bias. If they did not follow the SOP that is clearly spelt out then they should have to face the legal consequences, ”he says.

Critically, he adds, it is important for the general public to be aware of the laws of the land and their rights.

“Especially now that social media is an integral and pervasive part of our day-to-day lives. People need to be aware of the law – you make choices in life and you need to face their consequences.

“Similarly, you make your choice of tweeting and retweeting something or posting anything and making comments on social media, so you will have to bear the consequences.”

And as Dr Sundramoorthy puts it bluntly, “If you are so good at using social media, you should also be able to source the relevant information on the law and your civil rights online.

“If you are an expert on social media, you should be able to Google the dos and don’ts of when you are arrested, from the Malaysia Bar website and other civil society groups.”

By Hariati Azizan The Star/Asia News Network

KNOW YOUR RIGHTS


When Police stop you on the street

■ If cop not in uniform, ask to see his/her Police authority card. Note cop’s name and Police authority card number.
■ If cop in uniform, note cop’s name and ID on uniform, and number plate of vehicle.

When Police question you on the street
■ Only give your name, ID card number and address.
■ Politely ask, “Am I under arrest?”. You can walk away if you are not under arrest.

When Police call you for questioning to help in investigation

■ If the place and time is convenient for you, cooperate. Important: Police cannot arrest you if you are a witness.
■ If not, you can negotiate for a more convenient time and place with Police.

When Police arrest you

■ Ask why you are under arrest.
■ Ask which Police Station they are taking you to.
■ You have the right to telephone:* i) Your relative or friend ii) A lawyer or a nearby Legal Aid Centre (LAC)
► Inform them: - you have been arrested; - the time, place and reason of the arrest; - the Police Station you will be taken to.  

In police raids and searches

■ Demand for a warrant – raids without warrant are usually done when Police believe their suspect is in the building, stolen goods are hidden in the premises or some criminal activity is going on there.

After arrest and during detention

You may be detained up to 24 hours at the Police Station, or in a lock-up to “assist” police investigation.

YOUR BASIC RIGHTS WHEN UNDER ARREST


Right to remain silent
The Federal Constitution gives you the right to remain silent when questioned.

Right to counsel
 - Under Article 5(3) of the Federal Constitution, an arrested person also has the right “to consult and be defended by a legal practitioner of his choice”.
- Section 28A of Criminal Procedure Code, which came into force in 2007, also gives an arrested person the right to consult a lawyer.
- The Police must accord you reasonable facilities and a reasonable time period to meet and consult your lawyer. This right can be denied if the delay in questioning you may cause the occurrence of another crime or cause danger to others.

Right to clothing You are allowed to have one set of clothing with you in the lock-up.

Right to personal belongings
The Police must record and put all your personal belongings in safe custody. Your personal belongings must be returned to you upon your release.

Right to welfare - You are allowed to take a bath two times a day. If you are sick, you have the right to receive immediate medical attention. - You are to be given proper and adequate food and water during detention.

The Police may only detain you for up to 24 hours for investigation.
It is the Police’s duty to complete their investigations within 24 hours and release you as soon as possible. Failing that, the Police must bring you before a Magistrate for a remand order to extend your detention beyond 24 hours (Remand Order).


For more information, check out the Malaysian Bar's Redbook pamphlet at http://bit.ly/KBZhlw

Source: The Malaysian Bar, Suaram

Making comments on social media should not be a serious crime, says don


TWO years ago, a 17-year-old boy was investigated for sedition when he “liked” a pro-Israel Facebook post. When questioned by the police, the student had explained that he had accidentally clicked “like” for the post that read “I love Israel” and featured a picture of the Jewish state’s flag.

We will see more and more “insensitive” and “ill-advised” online postings like this – either done intentionally or not – with the Internet and social media growing as an integral and pervasive part of our daily life, says Universiti Sains Malaysia criminologist, Assoc Prof Dr P. Sundramoorthy.

“We have seen this trend of ‘slanderous’, ‘defamatory’ and ‘insensitive’ remarks constantly being made by all segments of society. It is not limited to people in leadership positions or prominence, ordinary people are also making these comments, including the young.”

As he sees it, stopping people from expressing themselves when they have access to these channels will be impossible.

“We can’t stop people from using the Internet and social media, and many will use them without thinking of the consequences. The question is where do you draw the line for freedom of expression?” he poses.

“For the proponents of absolute freedom of expression, they will say it’s the right of the people to express themselves.

“People who are against absolute freedom of expression will say that this freedom will create chaos, disharmony and trouble in general, and they will prefer some sort of censorship.”

The issue was thrust under the spotlight again recently with the arrest of three people under the Communications and Multimedia Act (CMA) 1998 for their Twitter comments over the death of PAS spiritual adviser Datuk Dr Haron Din.

This time around, the glare was on the police conduct during the arrests – the police had allegedly trespassed into the compound of former journalist Sidek Kamiso’s house in the wee hours of the night to arrest him for his tweet, traumatising his wife and children. The police had also allegedly searched his house without a warrant while denying him his right to contact his family and lawyer after his arrest.

While he believes that it depends on the laws of the land, Dr Sundramoorthy feels that social media boo-boos should not be treated as a crime per se.

“Granted, there are limitations on the subject matters that we can comment on as they can create racial or religious disharmony and other types of conflict among citizens here, but we need to take a reasonable approach towards it.”

Suara Rakyat Malaysia (Suaram) executive director Sevan Doraisamy frankly describes the police action towards Sidek as “excessive and a waste of resources”.

He says many of the CMA cases undertaken by the police do not meet the criteria of hate speech and dangerous speech to justify arrests or prosecution. In fact, he stresses, the cases are a “severe threat” to freedom of expression.

“If you ask me, ‘insensitive comments’ should not be an arrestable crime. It is also unacceptable that just because of one or two incidences of inadvisable comments, the Government should curb the freedom of expression of everyone.”

He points out that CMA cases can be investigated without physical detention. “If the police receive reports on alleged insensitive comments, they should not waste their resources to arrest the people, they can just call them in to give their statement.

“And the top officers do not need to get involved, especially when there are more serious crimes and security issues in the country – for instance, we have hundreds of people still missing from unsolved abduction and kidnapping cases,” he says. “Crucially, there is no need for those detained in Petaling Jaya to be taken to Johor Baru for investigations, for example, as it is a waste of public resources.”

Sevan, however, concedes that Malaysians need to be more responsible when using social media.

“It should not be a crime – people have a right to express themselves – but they need to be responsible about what they post or comment on.

“While they continue to assert their freedom of expression, people should also realise that they don’t need to comment on everything and anything, especially if they know that it might lead to slander or instigate something. We are still living in a sensitive society entrenched in racial and communal politics. You don’t want to get caught in the middle of it,” he says.

Denying that they are making light of hate speech, Lawyers for Liberty executive director Eric Paulsen contends that the Government and Malaysian authorities need to come to terms with social media.

“Nobody is saying that the Internet and social media should be free for all – if someone promotes hate or threatens someone with murder or rape online, or if they are cyber terrorists, then police should take action against them. But they need to be fair, and the legal action should be proportionate.

“We should not prosecute someone for a mere comment – no matter how unsavoury or insulting we think it is. Without any serious element of hate speech or real element of incitement to violence or harm it should not be a crime.”

Paulsen also believes that the police conduct in the arrest of Sidek was excessive, calling it “overkill”.

Declining to comment on whether there is a need to review the CMA or enforce a hate speech law, Paulsen says what is needed is a review of police policies.

“What are their priorities in crime fighting? What constitutes serious crime for the police? Anywhere in the world, corruption, criminal breach of trust, robbery and murder are traditionally considered the serious crimes and resources are channelled towards fighting them. Unfortunately in Malaysia, a lot of our resources are wasted on frivolous cases like this.” - The Star