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Tuesday, July 17, 2007

Arrest and detention of blogger undermined fundamental rights

(Above) The painting I snap during my visit to The Bianalle, Gwangju. It symbolizes the untrue freedom.

Alhamdulillah, Nathaniel Tan released even though his computers still 'under police custody'. To celebrate his release, I have prepared him my home-made caramel, as promised. Nat, if you come to my house to collect the caramel, don't let the SB follow you. They are not wellcome.

Clearly, Official Secrecy Act 1972 (OSA) violates human rights and needs to be abolished. The following is a statement I received from Amnesty:

Amnesty International would like to raise our concerns over the recently reported news of the arrest of blogger and PKR webmaster, Mr. Nathaniel Tan. We have serious concerns over the manner in which his arrest was executed and his remand process.

We believe that the police clearly abused the due process of investigation by arbitrarily arresting a person without due reason. The attitude of “arrest first and investigate later” which was highlighted by the Royal Police Commission affects a person’s freedom and rights without a just cause.

Furthermore the maximum period remand application made by the police
is a strong indicator that the police failed to conduct thorough investigations before the arrest.

It was reported that Nathaniel was merely requested to follow the plainclothes policeman believed to be from the Special Branch for questioning in the Bukit Aman police headquarters, without any notification given if he was arrested.

We believe that the failure to disclose his status at the time of arrest was in fact deception on the part of the police to deny him access to his family and legal intervention which is provided
by law. We are also concerned over the 6 hour absence of any information from the Bukit Aman police headquarters on the status of his arrest and his whereabouts is which is tantamount to an “enforced disappearance” .

The Royal Commission in its report highlighted that the Special Branch operates with a high degree of secrecy and confidentiality. There were allegation of torture and humiliating and degrading treatment inflicted by the Special Branch and concerns that the Special Branch may be manipulated by a party in power for political purposes.

The Commission recommended making the Special Branch accountable and its powers
and responsibilities to be spelt out in law so that it can function impartially and independently and to clearly define the term 'security' to avoid abuses of power.

Amnesty International supports the Commission’s recommendations to make the Special Branch accountable and to clearly define the term 'security' to avoid abuses of power.

We also condemn the actions of the investigating police officers not to inform Nathaniel’s lawyers of the remand proceedings and their attempt to conduct the remand hearing without the presence of his lawyers. We are of the opinion that this is another example of abuse of power by the police and an infringement of the right to a fair hearing and to full and unhindered access to legal assistance.

We are also of the view that such abuses continues due to the continuing ignorance and failure on part of the police to implement the Royal Commissions recommendation for “A Principles and Code of Practice Relating to the Arrest and Detention of Persons”.

This abuses are also due to the delay in implementation of the 2006 Parliamentary Select Committee on Criminal Law’s amendments to the Criminal Procedure Code (CPC) to improve on remand procedures and on the rights of persons when arrested that has already been passed by the Parliament and signed by the King, but yet to be brought into force.

Amnesty International Malaysia strongly urges the Prime Minister to investigate the incident and implement the recommendations made by the Royal Commission without further delay. It is also crucial that the CPC amendments be implemented to ensure that the rule of law is observed and implemented by the police.

Background Information

The Royal Commission on Police in its report pointed out in several sections on the habit of “Arrest First, Investigate Later”- where arrests were made based on highly questionable “reasonable suspicion” or the likelihood to constitute criminal behaviour and in the context of mass arrests of persons allegedly loosely linked to a particular high profile crime. This
practice indicates that the police fail to conduct investigations before an arrest is made hence caused wrongful detention of innocent persons.

The United Nations Declaration on the Protection of all Persons from Enforced Disappearance, as in Article 1 states that an act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families.

It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and
the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.

In 2006, The Parliamentary Select Committee on Criminal Laws made significant amendments to the Criminal Procedure Code significant proposals on the Criminal Procedure Code to include the following.

Amend section 117 of the CPC where offences 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 and 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.

The committee has also 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 Royal Commission in its report also proposed for “A Principles and Code of Practice Relating to the Arrest and Detention of Persons” to prevent torture and abuse of detainees.

This proposed code of practice provides for an independent Custody Officer, who shall be responsible for the welfare and custody of every detainee, procedures for police interview including tape recordings, video surveillance and access to lawyers.

The commission also emphasized in its report that the Code of Practice must be strictly adhered to by the police while affecting any arrest, whether under the Criminal Procedure Code (CPC) or preventive laws and failure to comply should be subject to disciplinary proceedings.


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