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Racial profiling laws?

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There are not only elements of anti-democracy in the bills to be passed this parliamentary sitting, but they are also easily open to abuses including racial profiling, says Steven Sim.


After PCA, now a second round of anti-democratic, anti-human rights, racial profiling laws is being tabled in our Parliament.

On 2 October 2013, the federal government atrociously forced through the amendments to the Prevention of Crime Act (PCA) in a midnight sitting of the parliament, effectively breaking all the Prime Minister’s pre-election promises as well as the principles of democracy through the resurrection of ISA 2.0, allowing for detention without trial.

This time, the government is attempting to force through another rounds of anti-democratic and anti-human rights amendments.

Among others, the government is introducing amendments to the Penal Code. Several controversial amendments have been pointed out.

On 23 October, Pakatan Rakyat claimed victory over the withdrawal of the clauses on “Destruction, etc. of national emblem” (clause 5) and on “Vandalism” (clause 33), which even Umno MPs protested as unjust and disproportionate.

However, the government is still pushing for others amendments such as clause 11 of the proposed bill which criminalises whistleblowers.

Presumption of innocence abolished

I would like to also bring attention to clause 8(c) of the bill which inserts the following provision into section 130v of the Penal Code:

(2) Until the contrary is proved, a person shall be presumed to be a member of an organised criminal group where –
(a) such person can be identified as belonging to an organised criminal group; or
(b) such person is found with a scheduled weapon as specified under Corrosive and Explosive Substances and Offensive Weapons Act 1958 [Act 357].

The above provision completely overturns the established principle of justice where a person is presumed to be innocent until proven guilty.

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Infallibility of experts established – no way out once branded gang member

The matter is made worse when the above is read together with Clause 11 of the bill to amend the Criminal Procedure Code (CPC), another bill which the government will be tabling in this parliamentary sitting, which states:

399B (1) Notwithstanding any other written law, where evidence or report is given by an expert on the activities, structure, ritual, ceremonies, hand sign, insignia or characteristic of an organised criminal group or any other matters relating to an organised criminal group, the Court shall admit the evidence as conclusive proof of the facts.

This amendment provides unchallengeable power to the so-called “expert” making his “evidence” conclusive and irrefutable.

First of all, who is this all-powerful, infallible “expert” whose mere words decide whether a person is guilty or not?

Secondly, can a police office act as an “expert” in this context? If so, then the law enforcer himself now becomes the judge since his opinion is now regarded as conclusive proof.

Thirdly, read together with the above clause on the presumption of guilt, how then can a person identified as a gang member be able to disprove the presumption since the evidence of the “expert” is conclusive and irrefutable.

Vague criteria and racial profiling

Further, the second part of Clause 11 of the CPC amendment bill reads-

2) If evidence is proved that the accused –
(a) is involved in any of the activities, ritual or ceremonies of an organised criminal group;
(b) is part of, or within the structure of an organised criminal group;
(c) exhibits any hand sign, insignia or characteristics of an organised criminal group; or
(d) can be linked to any other matters relating to an organised criminal group,
the Court shall presume that the accused is a member of an organised criminal group.

The criteria above for someone to be charged as a gang member is too broad and vague. Thus it is easily subjected to abuse. For example, a person wearing a leather jacket or an popular emblem on his shirt (e.g. a peace sign) may be considered a member of an organised criminal group.

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Or if the so-called “expert” deems cultural activities (whether traditional or popular) such as a tattoo or a body piercing to be linked to a criminal group, anyone found doing them will be liable to have committed a serious offence which carries an imprisonment up to 20 years.

And worst of all, the new amendments, taken together, can be abused to legitimise racial profiling. The government has previously stated that 71 per cent or about 29,000 of gang members in the country are Indians Malaysians. We fear that the Indian community, and migrant workers to an extent, will be an easy target if the amendments are passed.

Withdraw the bills now!

While I support the enhancement of the criminal justice system to empower the police to fight crime, what the government is doing is not enhancement but encroachment.

There were no proper consultations with all parties involved including the Opposition bench, the legal community as well as civil society at large. Opposition MPs were not given sufficient time to participate in the debate and the existing system of our Parliament means that Backbenchers have to blindly vote according to party-lines to support the anti-democratic, anti-human rights laws rather than following their conscience.

Hence I call upon the government to withdraw the bills now to stop further anti-democratic, anti-human rights encroachment into our legal system.

Steven Sim is the Member of Parliament for Bukit Mertajam.

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