humrightsnpolice.pdf

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HUMAN RIGHTS AND THE POLICE FORCE

SAC II Abd. Aziz Bin Bulat

Introduction

In 1948, the United Nations adopted the United Nations UniversalDeclaration of Human Rights. This declaration was adopted by the UnitedNations immediately after the end of the Second World War as a result ofthe atrocities committed by the warring parties, particularly the Nazis on theJews which was known as the holocaust. The United Nations was of theview that civilians should not be the object of horrendous torture of such amagnitude. What had taken place during the War should not be allowed tohappen again. It is the recognition of the inherent dignity and of the equaland inalienable rights of all members of the human family as the foundationof freedom, justice and peace in the world.

Being fully aware that in 1948 most countries were under colonial

powers the United Nations did not set a time frame for each and everycountry to adopt the Declaration. The United Nations was also aware thateach particular country had a different political, social and economicapproach and it would take time to embrace the spirits of the UniversalDeclaration of Human Rights. This applied to Malaya then; and when itachieved independence from British in 1957, the Constitution of Malaya didtake into account the freedom and liberties of each and every citizen of theFederation.

For a present day police officer, it is important for him to be givensufficient training on human rights. He has to observe and ensure that therights of an individual are respected. This is because he is the guardian oflaw. He is given so much power that if wrongly used or abused he wouldput a mans liberty or freedom at stake. He has the power to stop a man.He too has the power to arrest if need be and for that reason he must actprofessionally and in accordance with law at all times.

A Brief Look at Malaysias Const itut ion

Certainly, it is useful to look at some fundamental liberties which areguaranteed under the Federal Constitution of Malaysia. Some are for everyresident of Malaysia while some are not applicable to non-citizens. Asimple and brief account of the fundamental liberties provided under theConstitution can be found in the book written by Tun Mohammed Suffianbin Hashim entitled An Introduction of Malaysia. Tun Suffian retired asThe Lord President of the Federal Court of Malaysia. Article 5 of the

Constitution provides that no person may be deprived of his life or personalliberty save in accordance with law. If a person is unlawfully detained, hemay make a complaint to a Judge who would enquire into the lawfulness ofhis detention and if he is not satisfied would order the release of that


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person. Applications for writs of Habeas Corpus made to High Courts inMalaysia are quite common. In the Federal Court case of Karam Singh v.Menteri Hal Ehwal Dalam Negeri Malaysia, the Federal Court decided that itis for the person detaining to justify the detention but it is enough for him toproduce a valid warrant or order of detention. If he did that the onus is thenon the applicant to show that the power of detention has been exercisedmala fide or improperly. Clause (3) of the same Article provides that if aperson other than an enemy alien is arrested, he must be informed as soonas may be of the grounds of his arrest and be allowed to consult and bedefended by a legal practitioner of his choice. He must be produced beforea Magistrate within 24 hours or else he is to be released.

Article 9 of the Constitution of Malaysia provides that every citizenhas the right to move freely throughout the Federation and to reside in anypart of Malaysia. Article 10 provides that every citizen has the right tofreedom of speech, assembly and association. However, the MalaysianParliament may by law impose restrictions it deems necessary or expedientin the interest of the security of the Federation or any part thereof or byreasons of public order. Such provisions are necessary partly becauseMalaysia is comprised of people of various races, religions and cultures in

which certain discussions can be extremely sensitive if debated in open.

Establishment of the Human Rights Commission

Malaysia as an independent and practicing democracy always keeps trackof whatever development that occurs in the international arena. It becamea member of the United Nations Commission on Human Rights in 1993.Sharing its concern on human rights issues the Malaysian Governmentthrough an act of Parliament established the Human Rights Commission ofMalaysia in 1999 and their work have received praises from severalcountries.

Everyone is aware that human rights violation attracts internationalpublic opinion and condemnation and governments including the MalaysianGovernment can no longer ignore them. Malaysia, in spite of criticism fromcertain groups, has achieved much in the field of human rights such as inthe areas of judicial independence, free and fair elections, and initiatives onsocial welfare including education, health care and housing. As had beenmentioned earlier Malaysian laws protect its citizens from arbitrary arrestand detention. However, there were complaints from time to time againstlaw enforcement agencies particularly the police on matters pertaining totheir abuse of powers. However, with the establishment of the HumanRights Commission of Malaysia the public are beginning to question anddiscuss the right to peaceful assembly, free speech and freedom of thepress. The Commission in its 2000 Annual Report said the demand for civil

and political rights has become louder as Malaysia develops and itscitizenry becomes better educated and more sophisticated. The growth ofa politically conscious Malaysian civil society has meant that governmentaction that infringes on the fundamental rights of its citizens would no longer


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remain unchallenged. The demand for a transparent and accountablegovernment that respects human rights is a fundamental concern of aMalaysian civil society. Areas which will be of focus to the Commissionare:

(i) Freedom of assembly;(ii) Freedom of expression;(iii) Detention without trial;(iv) Right to a fair trial;(v) Failure to annul four proclamations of states of emergency;(vi) Laws that discriminate against women;(vii) Ratification of international human right instruments; and(viii) Native customary rights.

The report also outlined the political developments in the past twoyears where the right to peacefully assemble by opposition parties and non-governmental organizations (NGOs) was denied by the police who also usetear gas, batons and water cannons with chemicals to break up assemblies.The report also mentioned that the Commissions first priority would be toreview all laws that restrict the right to peaceful assembly with a view to

proposing their repeal or amendment and to introduce administrativeprocedures to govern public gatherings. There are three main statueswhich are always of concern to the Malaysian public and to certain quartersabroad. These three laws allow for detention without trial and give power tothe Home Minister to detain a person for a period not exceeding two yearswith a view to preventing him from acting in any manner prejudicial tonational security.

The Commission said that these laws, although enacted with a viewto safeguarding national security, infringe on Articles 3, 9 and 10 of theUniversal Declarations of Human Rights. The Commission will examinethese laws and recommend that they be repealed or amended to restricttheir scope.

On the question of freedom of expression the Commission feelsthat the Printing Presses and Publications Act and the Official Secrets Actare restrictive laws that deny the right to judicial review of administrativedecisions. On Emergency Proclamations the Commission said that sincethe country achieved independence in 1957 four states or emergency hadbeen proclaimed under Article 150 of the Federal Constitution but untiltoday none of the proclamations has been annulled by Parliament. In sucha situation it would enable the Government to promulgate emergencyregulations even though both Houses of Parliament are still sitting. TheCommission would review the matter and make appropriaterecommendations. In all these laws the Royal Malaysia Police are givenwide powers not only to act against any breach but also to regulate.

It is highly desirable that all police officers irrespective of rank betrained to understand all issues pertaining to human rights. What is morepressing is that the Human Rights Commission of Malaysia feels that the


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public needs to be made more aware of their responsibilities in protectingthose rights.

Introducing Human Rights Training at Police Training Institutions

The Commission wants formal and informal education on human rights becarried out and it is in the process of assisting in preparing modules forthese purposes specially for the police and schools. Once there areconsciousness, awareness and respect for basic human rights in all sectorsof society and an existence of human rights culture, the Commissionbelieves that Malaysia will be ready to be called a developed nation with anethical, liberal, tolerant and caring society as envisaged by the Governmentby the year 2020. The Commissions interim recommendation touchedsolely on the freedom of assembly where it calls for application for permitsto hold static assemblies in premises such as stadiums and halls beapproved without restrictions. It said that the procedure for applying forpermits must be simplified by using standard forms to be issued toorganizers and a declaration must be signed by the organizers to assumeresponsibility for peacefulness and orderliness of the assembly, as well as

ensuring cleanliness after the assembly. The Commission is aware that atthe present moment any person or group wishing to hold an assembly mustapply for a permit from the Officer-in-Charge of the particular district wherethe assembly is to be held. This is provided for under Section 27 of thePolice Act, 1967.

There is an increasing demand for a more transparent andaccountable government that protects and promotes human rights in thecountry. Since the setting up of the Commission in 2000 numerousmemoranda have been presented to them. The Commission said this is afundamental concern of the Malaysian civil society today. Fundamentalliberties such as freedom of assembly, freedom of expression, and freedomof religion need to be upheld. It has identified certain issues which warrant

urgent attention, inter alia, detention without trial, the continuous state ofemergency, discrimination against women and ratification of various humanrights instruments. The Commission is of the opinion that there are manylaws in the country that restrict or infringe on the basic human rights ofcitizens and these laws need to be reviewed and examined in detail. Suchlaws include:

(i) The Internal Security Act, 1960;(ii) The Emergency (Public Order and Prevention of Crime)

Ordinance, 1969; and(iii) The Dangerous Drugs (Special Preventive Measures) Act,

1985.

The Commission said these laws provide for detention without trialand constitute an infringement of Articles 3, 9 and 10 of the UniversalDeclaration of Human Rights. By December, 2000 (the year theCommission was set up) the Commission had received 475 complaints and


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of these, 300 reports were complaints regarding the police handling ofpublic assemblies. The Commission in its endeavour to instill awarenessamong the Malaysian public had declared September 9

thas national Human

Rights Day. September 9th was selected since the Human Rights

Commission of Malaysia Act was gazetted on 9thSeptember, 1999.

It is interesting to note how a law, e.g. the Internal Security Act,1960, is always being criticized in Malaysia and abroad. It is deemedoppressive and constitutes an infringement of Articles 3, 9 and 10 of theUniversal Declarations of Human Rights. The person who was responsiblefor the drafting of the Act was Professor Hugh Hickling. In an interview withThe Starnewspaper which appeared on 17

thApril, 2001, he said that the

ISA which provides for detention without trial is still necessary. The Britishlaw professor once served as legal draftsman in the Attorney GeneralsOffice in the 1950s. He was also Professor of Law at University of Malayaand the National University of Malaysia (UKM) in the 1970s and 1980s. Hesaid that the Act is still needed because based on his experiences as aMalayan civil servant in the 1950s and 1960s, the Malaysian Society waspotentially volatile. However, he said the Act should be subjected to

judicial review. Since the ISA was drafted in 1960, the law has been

amended over and over again, including removing judicial review. He wasof the view that there should be provision for judicial review to enablechecks and balances to avoid the danger of misuse by the Executive. TheJudges must be those with reputable background and credibility; anindependent judiciary is important to the whole system. The law was meantto combat organized violence by the communists during the Emergency(1948 1960).

Viability of a Human Rights Act in Malaysia

At present, Malaysia does not have a specific Human Rights Act as can befound in the United Kingdom. However, looking at developments in various

fields it is felt that an act such as the one in the United Kingdom may bepassed by Parliament in Malaysia. The only question is when? Because ofMalaysias concern towards the upholding of human rights the Governmenthas passed an act to establish the Human Rights Commission of Malaysiain 1999. However, as had been mentioned above there are many laws inthe country that restrict or infringe the basic rights of its citizens. TheMalaysian government has been criticized for not signing and ratifying othermajor human rights instruments such as the 1966 International Covenanton Civil and Political Rights and the 1966 Covenant on Economic, Socialand Cultural Rights. The Government is reviewing its laws from time to timebut to abolish all laws which are deemed to be restrictive or oppressive atonce is not possible because the Malaysia society is made up of variousreligions, cultures and ethnic backgrounds. Malaysia is a peaceful and a

stable nation and has an excellent record in race relations compared tomany other countries. This achievement can be attributed to the presenceof such laws, some of which do not allow free discussions of sensitiveissues like religions or racial matters save for in proper forums.


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Guidelines used by the British Police

The British Government in its White Paper, 1998 pledged to modernizeBritish politics. The British Prime Minister said that the Government wascommitted to a comprehensive programme of constitutional reform andbelieved that it was appropriate to increase individual rights, to decentralizepower, to open up government and to reform Parliament. The BritishGovernment decided to incorporate some new human rights elements fromthe European Convention of Human Rights into UK law. The White Paperexplained the proposals contained in the Human Rights Bill which theBritish Government were introducing into Parliament. The Bill marked amajor step forward in the achievement of programme of reforms and to givethe people of United Kingdom opportunities to enforce their rights under theEuropean Convention in British courts rather than having to incur the costand delay in taking a case to the European Human Rights Commission andCourt in Strasbourg. The White Paper said it would enhance theawareness of human rights in the British society and Britain would promotehuman rights at the forefront of its foreign policy. Hence the Human Rights

Act, 1998 was passed by the British Parliament and made enforceable inthe United Kingdom on 2

ndOctober, 2000.

In Malaysia, human rights and policing issues are the same as inBritain. Peter Villiers, MA who is head of the Human Rights Unit atBramshill Police College in his article entitled Human Rights: The SurvivalGuide For Good Police Leaders Everywhere has identified various issuesfor the Police to comply with a view to enabling all police officers to carryout their duties effectively and efficiently so that the Human Rights Act,1998 would be observed. Among the responsibilities would be:

(i) Recruitment and training of officers in all aspects of humanrights;

(ii) Rules and equipment to be used;(iii) Use/Misuse of force and firearms;(iv) Command and control of operations;(v) Supervision by senior officers to ensure all tasks must be

carried out in accordance with law;(vi) To formulate directives/guidelines by taking into consideration

human rights issues;(vii) To respect the liberty and freedom of individuals;(viii) To avoid use of force unless the law permits;(ix) To instill in every police officer the requirement to act with

integrity, impartiality, dignity and in particular to refrain from andvigorously oppose all acts of corruption.

Peter Villiers also said that in applying human rights police officerswould need to re-orientate their approach and use a new language. Theywould need to be able to appreciate principles that may not at first soundfamiliar to them, and to plan and act in accordance to these new principles.


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They would need to be able to account for their decisions with human rightsreasoning. According to him the principles themselves are not difficult tograsp.

Conclusion

In conclusion, I am of the view that the demand for more human rightspractices to be observed will increase. The Malaysian government is awarethat it can no longer ignore international public opinion and is doing all it canto lead Malaysia to a developed country status. The freedom and liberty ofevery Malaysian is enshrined in the countrys Constitution. Malaysian lawsprotect its citizens from arbitrary arrest and detention and Malaysia has agood criminal justice system. Generally, complaints are not about thesystem but about the agencies that operate that system leading to theabuse of power or infringement on the rights of the individuals. Therewould come a stage where Malaysia may pass a law in the likes of theHuman Rights Act, but before doing so, the Government has to ensure thatthe country and its citizens have reached a certain level of maturity andwisdom and can live in a conducive environment. The role of the Malaysian

Police has been spelt out in various legislations, in particular the Police Act,1967. The manner how each task is to be performed are clearly spelt out inthe various standing orders, standard operating procedures, manuals,directives and instructions issued by the Federal Police Headquarters inBukit Aman. However, guidelines used by the Police authorities in Britain toteach their officers and men in accordance to the British Human Rights Act,1998 will indeed be a good guide for the Malaysian Police to follow.

References

Mohammed Suffan bin Hashim, Tan Sri, An Introduction to the Constitution

of Malaysia

The Malaysian Commission on Human Rights, 2000 Annual Report.

The British Government White Paper, 1998.

Peter Villiers, MA, Human Rights: The Survival Guide for Good PoliceLeaders Everywhere, Bramshill Police College.

The Police Act, 1967 (Section 27).

The Stardated 17thApril, 2001 (Tuesday) pg.12.

Documents

humrightsnpolice.pdf