Archive for October, 2008

23
Oct
08

RPK’s detention challenged in court

(Ref: Malaysiakini report, “Raja Petra sent to Kamunting” http://www.malaysiakini.com/news/90206)

RPK’s second habeas corpus application filed to challenge the Home Minister’s detention order under Section 8 of the ISA was heard in the High Court today before Justice Syed Ahmad Helmy bin Syed Ahmad.

(habeas corpus: A writ having for its object to bring a party before a court or judge; especially, one to inquire into the cause of a person’s imprisonment or detention by another, with the view to protect the right to personal liberty – Webster’s Revised Unabridged Dictionary)

As reported in the articles below, Azhar Azizan Harun, one of the lawyers acting for RPK argued that the detention order is mala fide (in bad faith). He said that it is obvious to infer that the detention was not prompted by national security concerns but rather by a desire to silence a vocal and influential critic of the government.

Malik Imtiaz Sarwar, the lead counsel for RPK also argued that if RPK had insulted Islam, he should have been dealt with by the Selangor religious authority. He added that, “It would be necessary for the respondent (Home Minister) to acquire confirmation from the state religious authorities or the state syariah courts that the action complained of is an insult to Islam or is otherwise in contravention to Islam before he can take steps under the ISA.”

“On this ground alone, the detention ought be declared unlawful,” he said.

The judge fixed Nov 7 as the date for a decision on the habeas corpus application.

RPK is currently also facing a sedition trial which has been postponed to Nov 10-13.

RPK’s detention order mala fide, says counsel
22 October 2008 – Bernama

SHAH ALAM, Oct 22 – A lawyer representing Raja Petra Kamaruddin told the High Court here today that his client’s detention order under Section 8 of the Internal Security Act issued by the Internal Security Minister was mala fide.

Azhar Azizan Harun said there was an obvious inference that the detention was not prompted by concerns about national security but a desire to silence a vocal and influential critic of the government as well as the political parties and individuals in the government.

“The applicant has at times been critical of the Prime Minister, the Deputy Prime Minister and the respondent (Internal Security Minister), among others. This has been undermining the political interests of Umno and Barisan Nasional (BN) as can be seen from the shift of voter support,” he said.

He also said Raja Petra had never been told of the reasons for his arrest or detention except for the document which he was asked to sign at the Jalan Travers police station on Sept 12, which merely states that he had insulted Islam and that he was a threat to national security.

“Under Section 8(1) of the ISA, the respondent has to be satisfied that the detention was necessary to prevent the detainee from acting in any manner prejudicial to the security of Malaysia.

“The respondent therefore must look at all facts and circumstances to form an opinion that the applicant was a threat to national security before he could be satisfied that the applicant’s detention was necessary to prevent him from acting in any manner prejudicial to the security of Malaysia.

“The applicant also is innocent of any crime; he has been charged with various offences and the trials are still pending. As there is no act which is alleged to be done in the future which could prejudice the security of Malaysia, the Section 8 detention order is obviously an exercise of power which was mala fide in nature,” he said.

Malik Imtiaz Sarwar who also represented Raja Petra, said if one of the bases of the detention was because he had intentionally, willfully and recklessly published articles on Malaysia Today that insulted the Muslims, why had he not been charged with the offence of insulting Islam by the religious authorities for that matter.

He said there was no “fatwa” that the applicant had insulted Islam or had in any way acted contrary to the principles of Islam.

“The matter of whether the applicant had insulted Islam is a matter within the exclusive domain of the Selangor religious authorities. The respondent cannot usurp that function. Though the respondent does have authority over matters of security under the ISA, this authority does not empower the respondent to determine issues pertaining to matters of Islam.

“It would be necessary for the respondent to acquire confirmation from the state religious authorities or the state syariah courts that the action complained of is an insult to Islam or is otherwise in contravention to Islam before he can take steps under the ISA.

“On this ground alone, the detention ought be declared unlawful,” he said.

Raja Petra is applying for the writ of habeas corpus to secure his release from detention under the ISA on the ground that his detention was unlawful and unconstitutional. He named the minister, Datuk Seri Syed Hamid Albar, as the respondent.

His wife, Mable @ Marina Lee, and two daughters – Sarah, 19, and Suraya, 34, – and several supporters were seen in court.
Meanwwhile, Senior Federal Counsel Abdul Wahab Mohamad submitted that the detention order made under Section 8 of the Act was valid and in accordance with the law.

“If the decision was made upon a proper evaluation in the facts and surrounding circumstances and after due deliberation — that was all which could be required for the issue of an order based on subjective satisfaction in the present case – this is what the minister has done,” he said.

Another senior federal counsel, Dusuki Mokhtar, said although the applicant had yet to be convicted of the charges that he was facing, it did not hinder the power of the minister to issue the detention order, and the power of the minister and Attorney General Tan Sri Abdul Gani Patail should be well distinguished.

“So just as the attorney general has power to institute proceedings but not the power to order detention, the minister has power to order detention but not to institute proceedings. Just as it is not within the power of the attorney general to consider making an order of detention, it is also not within the power of the minister to consider the institution of criminal proceedings,” he said.

Judge Datuk Syed Ahmad Helmy Syed Ahmad fixed Nov 7 for decision on the habeas corpus application.
– Bernama

…source

Raja Petra trial: ‘It should be handled by religious authorities then’
October 22, 2008 – the Star

SHAH ALAM: If Malaysia Today editor Raja Petra Raja Kamarudin had insulted Islam, he should have been dealt with by the Selangor religious authority, the High Court heard.

His lead counsel Malik Imtiaz Sarwar argued that it was questionable as to whether the Home Minister could order Raja Petra’s two-year detention under the Internal Security Act (ISA).

“On this ground alone the detention ought to be declared unlawful.

“Issues pertaining to matters of Islam are within the purview of the state governments, save for the Federal Territories of Kuala Lumpur and Labuan,” he said on Wednesday during an application for a writ of habeas corpus seeking the release of Raja Petra.

The Home Minister was named as the sole respondent.

Malik Imtiaz said that as Raja Petra resided in Selangor, it was clear that the Federal Government had no authority over the matter.

“Whether Raja Petra had insulted Islam is a matter within the exclusive domain of the Selangor religious authorities,” he argued.

The Malaysia Today editor was detained on the grounds that he had “intentionally and recklessly published articles which were critical and insulted Muslims, the purity of Islam and the personality of Prophet Muhammad.”

He was also detained for allegedly publishing articles concerning national leaders which were defamatory with the intention of undermining confidence and inciting hatred against the Government which could affect public order and prejudice national security.

Malik Imtiaz also submitted that the detention was unconstitutional — as it contravened the Federal Constitution which guaranteed Raja Petra his rights to freedom of speech and expression, and to profess and practise his religion — and was therefore void.

The Ministry’s Legal Adviser Abdul Wahab Mohamad argued that under Section 8 of the ISA, the onus was for the detainee to prove that the authority had not complied with the procedural requirement.

He added that it was clear that the Parliament had provided the power to the Minister to make the detention order without having to consider the police investigation process.

“Therefore, the detention order is valid and in accordance with the law,” he said.

Present in court for the hearing was Raja Petra’s wife Mable @ Marina Lee Abdullah, their two daughters Suraya and Sarah, and dozens of supporters who had turned up clad in t-shirts emblazoned with slogans such as “I’m with RPK”, “No to ISA” and “No Holds Barred.”

Justice Syed Ahmad Helmy Syed Ahmad set Nov 7 for the decision.

…source

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20
Oct
08

Hundraf

The Hundraf of Umno’s making
19 October 2008 – CPI
By Helen Ang

There is no typing error above; I did spell ‘Hundraf’ for Human Rights Action Force. Hundraf is the twin spirit of Makkal Sakthi, an expression translated as People Power, not Indian Power.

Home Minister Syed Hamid Albar is reported by Bernama as saying the Indians are not neglected in Malaysia. What he implied is that Indians have little cause for complaint and thus the complaining Hindraf have no basis for their struggle.

Syed Hamid in announcing the ban on Hindraf said the Indian community was quite well represented with 14 Members of Parliament, 21.4% in the legal fraternity, 18.4% in medicine and their income was 1.2 times higher than the Malays.

Out of his count of 14 Indian MPs, only three are from MIC compared to six from DAP. There are three from PKR and one from PSM — Samy-slayer of Sg Siput, the redoubtable Dr Jeyakumar Devaraj. If Indians are ‘well represented’, it is no thanks to BN. (I could only recognise 13 Indian names, maybe I missed someone or perhaps there is a Malay Dilemma-ed MP in the House.)

Regarding the statistics Syed Hamid cited, may I ask how many Indian lawyers and doctors got their degrees from Malaysian public universities? And secondly, how many had their education paid for by the state?

This is what blog commentator Parameswara tells me about one of the Hindraf-5 lawyers: “To my knowledge. R. Kengadharan the eldest son of a postal worker and housewife, completed his law studies on the meagre proceeds of a single storey house that was hocked to a financial institution to procure a study loan. Having returned from his studies, he not only paid off the loan but educated his siblings through the same house and earning from his law practice.”

And DAP’s Tony Pua says of another Hindraf-5 lawyer V. Ganabathirau:

“Gana never manage to have the privilege of completing his education at one go. After finishing Form 5, he had to take up various odd jobs to help support himself and his family. That however, did not prevent him from investing his earnings and taking up part-time courses to pursue his ambition of becoming an officer of the court. His dream came true in his late twenties when he graduated with a law degree from the University of London external programme.”

Those who hold external or foreign degrees are required to additionally have the Certificate of Legal Practice, a hard-to-pass Malaysian exam designed to block entry into the profession.

SPIN ON STATISTICS

Syed Hamid conveniently forgot other professional fields where Indians are under-represented. From the same table of statistics that he drew his figures, here’s what the Minister omitted: Of architects, 45.3% are bumiputera, 1.4% are Indian. Of engineers, 46.0% are bumiputera, 5.4% are Indian.

I have statistics as well: While Indians accounted for 9.8% of civil servants in the 1980s, they were 5.2% in 2003. Malays are fast increasing in numbers in the skilled professions and dominating government and GLC posts, while the Indians are regressing in proportionate numbers.

And more statistics: In the present Abdullah cabinet, there is one Indian out of 27 Ministers — 3.7%. The Indian share in 2004 of corporate wealth (ownership of capital at par value) is 1.2%.

Now with regard to those living under the poverty line, Syed Hamid said Indians comprised 2.9%, Chinese 0.6% and Malays 8.3%. Again, he has deliberately obscured the truth. He said ‘Malays’. Wrong, it’s bumiputera 8.3%. These figures come from the Ninth Malaysia Plan. The poorest, least helped among bumiputera are the Orang Asli of the peninsula and the indigenes of Sabah and Sarawak who are not Muslim.

How did the statistics measure ‘poor’?

Over 300,000 Indians have been displaced in the last two decades after they lost their jobs in the plantations. In 2005, it was reported that more than 30% of Indians did not own a house. Indians are squatters in urban centres or the periphery; Indian vagrants sleep in the street — you have seen them.

The poverty line income used for 2004 in Peninsular Malaysia was RM663 per month for urban areas, and RM657 for rural areas. The Department of Statistics, ior year 2000, reported that out of approximately 1.68 million Indians, some 80% were urban and the remaining 20% rural.

If one lived in his own house in the kampung, he does not have to pay rent. If one planted vegetables on his land and reared chicken, he spends less on food. The use of household income as a single yardstick (RM663-urban and RM657-rural; the RM6 differential fails to reflect the cost of living gap between the two regions) does not signal the true level of deprivation.

While on paper mean household income may look more for Indians, it is an average jacked up by the earnings of Indian professionals, and Ananda Krishnan. But the figures also indicate class differences within any one community. Just as the Tan Sri Chinese tycoons have absolutely no bearing on my daily life, how much does the monthly income of RM3,456 attributed to Indians reflect their salary overall?

Yayasan Strategic Sosial in 2005 put 30% of Indians in the bottom strata of society, and 20% in the top strata. My analogy would be that for the one doctor and one lawyer Syed Hamid mentioned, you have three low-wage earners in the labourer, cleaner and production worker. Drawing from the same statistical pool dipped by the Minister, while Indians made up 7.5% of Malaysia’s population, they constituted 14.7% in the elementary occupations.

Next, Syed Hamid said the overall income of the Indian was 1.2 times higher than Malay. Heck, if I’m Indian and took home RM3,456 a month, why would I want to go out and demonstrate? So where does the Tamil underclass that is the backbone of Hindraf come from then?

TEMPLES IN A ROW

Are the Indians a community in distress? How about looking at this set of social indicators? There were 2,555 suicides nationwide [Health Ministry report cited by NST in Sept, 2005], and 21.1 suicides per 100,000 Indians, 2.6 per 100,000 Malays. They are killing themselves in despair, it would seem.

Syed Hamid further claimed that there is a ratio of one temple to 149 Hindus and one mosque to 2,300 Muslims in this country. Aaah, the good Minister must have gone around the country tallying the little Hindu shrines under trees and altars lodged in rock crevices. I hope these ‘temples’ — one for every 149 Hindus — are marked on maps because tourists may like to visit them.

He also equated action against Hindraf to action taken against Al-Arqam, Al-Ma’unah and Kumpulan Militan Malaysia in the past, saying “The government’s priority is to protect the security of Malaysians”.

As a Malaysian, I do not feel threatened by the Muslims of Al-Arqam as I know the Malays to be a race full of kindness and budi bahasa. And as for the KMM, Syed Hamid as Home Minister should sign the order for their immediate release from ISA; prove their militancy in open court. Otherwise, I could think that Syed Hamid has committed fitnah, a grave sin in Islam, to allege his fellow ummah are militants.

Lastly, Syed Hamid said the government “cannot tolerate groups that propagate extremism and stir up racial and religious tension” and accused them of having “created fear among the people”. Yet it appears to me as if he is describing Umno factions. Is Umno going to be declared illegal soon too?

…source

20
Oct
08

Not your business, Pak Lah tells Dr M

Not your business, Pak Lah tells Dr M
Oct 18 2008 – Malaysian Insider

KOTA KINABALU, Oct 18 – Prime Minister Datuk Seri Abdullah Ahmad Badawi lashed out at Tun Dr Mahathir Mohamad, whom he described as behaving like the party elections director who decides “the leaders in the Umno party and whom should be removed”.

He said Umno had never needed instructions from leaders who were not in the party.

“Who is Tun (Dr Mahathir) who has left Umno and trying to issue orders to Umno people which should be followed?

“He is behaving like the director for the party elections, determining so and so should hold such a position … this person should hold this position, who needs to be in the party, who needs to be removed. What right has he to do this?,” he said at a press conference at Kota Kinabalu International Airport, here tonight.

Abdullah said this when commenting on Dr Mahathir’s statement wanting Umno delegates to “remove Abdullah’s men” in the party elections in March.

“Actually he wants to create changes, anger and hatred.

“Is it really wrong for people to work with me. Should those people who don’t speak and don’t make noise be considered as bad people…people who have never done good for Umno and the government.

“Who is he to make such decisions. This will create hatred among Umno members, teaching Umno members to quarrel among themselves,” he said.

Abdullah said he had decided not to defend his Umno presidency to avoid quarrels among party members.

“Because of the contests which normally happen especially at the top level, there will be splits. We should learn from what had happened in the past.

“Such talks will raise anger among those who are considered unacceptable, (those who) must be sidelined. I consider what Tun had done had actually led to quarrels within Umno,” he said.

According to the Prime Minister, what Dr Mahathir had called for would not bring any good.

“Is this the reform that we want…We have freedom, every Umno member has the freedom to contest.

“I hear that there was an attempt by someone to ask Ali Rustam (Malacca Chief Minister), who wants to contest the deputy president’s post, to withdraw … why ask Ali to withdraw? What is bad about Ali?

“Let him contest and let Umno people decide whether they want Ali or otherwise,” he said.

In this matter, Umno members did not need outsiders to give orders.

“It’s better for Tun not to speak at all today,” he said. – Bernama

…source

18
Oct
08

How much should helicopters cost?

According to Malaysiakini’s report, “Copter fiasco: PM to meet Mindef sec-gen”  (http://www.malaysiakini.com/news/91305), the PM is supposed to have met with Defence Ministry secretary-general Abu Bakar Abdullah to seek clarification on the Eurocopter deal. The secretary-general has now released a statement through the press.

According to this report, the Mindef secretary-general said that the acquisition of the Eurocopters is in accordance to regulations. However, what he said is confusing and does not answer all the questions raised in the letter written by Mentari Services Sdn Bhd chairperson Capt (Rtd) Zahar Hashim. It also raises some additional questions. In the above report,

“He said the decision to acquire the Eurocopter aircraft was based on the comprehensive bid made by the company and after it scored the highest marks covering the technical assessment and the offer of a reasonable offset price.”

What does he mean by a reasonable offset price?

Morever, according to him the price offered by Eurocopter in their tender is Euro 233,345,390 which works out to be about RM1.1 billion. But the Letter of Intent with Eurocopter was reported to be signed for RM2.317 billion. Why is there such a large discrepancy?

Perhaps he could also enlighten Malaysians on the report below that Brazil is buying the same Eurocopter helicopter model at about RM83 million each while Malaysia is buying them for almost RM200 million each!

Eurocopter-How Much?
17 October 2008 – Malaysia Today

I came across the letter written by Mentari Services Sdn Bhd chairperson Capt (Rtd) Zahar Hashim, comparing the price of 12 Eurocopter Couger EC 725 with Kazan –M172, amounting to about RM1.4 billion in terms of the price difference.

In a way, it’s unfair to compare an apple with a pear. You must compare an apple with an apple. Therefore, let’s compare the price of Eurocopter EC 725 ordered by both Brazil and Malaysia:

In June 2008, Brazil and France signed an agreement in principle for Eurocopter to build helicopters in the South American country via its subsidiary Helibras. Brazil ’s Defense Minister Nelson Jobim reportedly said that the country intended to buy 50 “Super Cougar” models, the first of which would be delivered in 2010. The deal’s value is reportedly around US$1.2 billion. (refer to http://www.defenseindustrydaily.com/Brazil-Signs-1B-Production-Deal-for-Cougar-Helicopters-04959/). That is RM4.14 billion for 50 copters or RM82.8 million per unit. And we ordered 12 copters for RM2.317 billion, (refer to http://www.malaysiakini.com/news/91215) meaning RM193 million per unit! So, multiply by 12 units, it comes to a cool RM1.3 billion. Not a bad golden handshake.

…source

18
Oct
08

Sewer journalism

Referrring to Chamil Wariya’s short story published in Mingguan Malaysia, Terence Fernandez said,

“If Chamil Wariya wants to use his position to curry favour with certain individuals or groups or to push a certain agenda, that is his business. But when one uses his pen to even suggest taking a life, this brings us to a whole new level of sewer journalism – the likes which we have not yet seen in this country.

The biggest tragedy of all is that he is the CEO of the Malaysian Press Institute (MPI) – an organisation which among others preaches responsible journalism as an integral component of press freedom.”

The full article:

Incitement is not press freedom
Down 2 Earth – Terence Fernandez
17 Oct 2008 – the Sun

IT IS uncommon for newspapers, media organisations as well as their journalists to criticise one another’s editorial policies or reports. Call it journalistic etiquette if you want.

However, there are the few but significant times when this decorum is disregarded. And this usually occurs when a member of the Fourth Estate breaches the norms and values of responsible journalism and risks bringing acceptable standards of reporting down to the recesses of gutter journalism. Thus when this happens, it is incumbent upon the press fraternity to speak up.

If we don’t do our house-cleaning, we are seen as condoning and even supporting the words and writings of those who use “freedom of the press” and their media tag as a façade to incite, provoke and inflame.

It does not take a heart surgeon to draw parallels between the main character in Chamil Wariya’s short story in Mingguan Malaysia on Sunday to a very real and sitting Member of Parliament. He wrote about a fictional controversial Member of Parliament who meets her end at the hand of an assassin. The events leading to her murder is eye-brow-raising similar to those experienced by the real MP. The similarities are too uncanny not to be deliberate. If anyone denies this, it is just a pitiable and cowardly attempt to hide from the truth.

The story depicts one YB J (Josephine), second term MP for the fictional constituency of Alam Maya and her push for non-race based politics which makes her out to be a chauvinist and racist who is against a certain community.

While being driven to a function where she is to meet 500 fellow young countrymen who had studied abroad, she has a monologue on the perception that she is a racist and seeks clarification from her driver Ahmad. He tells her that she “may or may not” be one, leaving her even more confused. Ahmad has his own monologue, which are imbued with images of suicide bombers and angels.

At the function, YB J is approached by a participant who assassinates her and takes his own life. On the assassin’s body is a note that reads it is better to end YB J’s life to ensure that this multiracial country continues to experience the peace and harmony it has enjoyed for so long.

Drawing parallels again, the story mentions the ruling coalition losing its two-thirds majority, ISA detentions, Molotov cocktail attacks and changing of street signs. Sheer coincidence? You’ve got to be kidding!

While we are all allowed (and in some cases guilty of using) creative licence, there are boundaries to observe – what with sedition laws, defamation suits and show-cause letters. Even so, I have yet to come across a journalist who in all sense of the word incites murder! This is definitely deliberate and deserves the highest condemnation from all members of the press and decent Malaysians who strive for peace and harmony.

And to think that this comes from someone with more than 35 years in the media business, having held key positions in media organisations and press groups is a stain on the journalistic community.

If Chamil Wariya wants to use his position to curry favour with certain individuals or groups or to push a certain agenda, that is his business. But when one uses his pen to even suggest taking a life, this brings us to a whole new level of sewer journalism – the likes which we have not yet seen in this country.

The biggest tragedy of all is that he is the CEO of the Malaysian Press Institute (MPI) – an organisation which among others preaches responsible journalism as an integral component of press freedom.

Apart from awarding the nation’s highest annual journalism honours, it also conducts courses for journalists young and old. So is this the kind of journalism espoused by the MPI to cadet reporters other media organisations entrust it to train and develop?

The MPI has often been accused of being partisan and a retirement home for out-of-work editors.

It is thus incumbent on the institute to ensure the reputation it has built (and salvaged) is not further tarnished by one of its highest office-bearers. What it should do now is to deliberate on Chamil Wariya’s association with the MPI. Turning a deaf ear or blind eye is merely sending the message that the country’s highest media establishment condones incitement to murder.

Terence, who has just taken down his MPI award from the mantlepiece, hopes he will once again be able to display it proudly.

…source

15
Oct
08

Abuse of power is serious matter

In the Malaysiakini report, “Najib: No abuse of power in SMS, will explain chopper deal” (http://www.malaysiakini.com/news/91257) published yesterday, Najib said “that there was no abuse of power on his part in his exchange of text-messages with lawyer Muhammad Shafee Abdullah in relation to the Altantuya Shaariibuu murder case.”

The cavalier manner with which he dismissed the allegation of abuse of power and the refusal to make any comments smacks of arrogance and is an attempt to mask the seriousness of the issue. When reporters asked Najib about these SMS messages he retorted, “Why do I need to comment? Nothing. There is no abuse of power. It doesn’t really matter.”

But it matters a great deal to all Malaysians!

Abuse of power is a very serious matter. In 1999 Anwar Ibrahim was convicted of “abuse of power” and sentenced to SIX years in prison. The “abuse of power” was for allegedly interfering with police investigations into the allegations of sexual misconduct made against him. Even though this “corruption case” was widely believed to be politically motivated he was still sent to jail.

In the report “Abuse of Power by The Deputy Prime Minister” published in Malaysia Today on 11 Oct 2008 there was an alleged exchange of SMSes between Najib and Shafee over the alleged involvement of Abdul Razak in the murder of Altantuya in 2006. This series of SMS messages raises very serious questions of Najib’s involvement in the case.

Interestingly, as reported in Malaysian Insider, Najib “did not deny the text message exchanges between him and a lawyer at the heart of the allegations were genuine. He said the SMS exchanges were a private matter.”

If the SMSes are genuine, don’t they warrant an investigation by the relevant agencies?

It is not sufficient for Najib to declare himself that there is no abuse of power on his part and expect Malaysians to go home and be happy that the country’s potential PM did not abuse power. For that matter, the prime minister is not in a position to say, “I cannot believe Datuk Seri Najib will want to abuse power,” and expect that his belief is accepted by everyone without question.

15
Oct
08

Scrap the DNA Bill

During the Bar Council public forum held on 13 Oct, constitutional law expert Tommy Thomas said that the DNA Bill is so poorly drafted that it cannot be improved upon by making amendments to the bill and should instead be withdrawn immediately.  Among the flaws he pointed out are:

DNA sampling is not limited to serious offences; DNA can be taken from any individual who has committed any offence;

  • the head and deputy head of the DNA data bank are police officers;
  • the head of the DNA data bank has the power to rectify any particulars, and that such rectification is not considered an act of tampering;
  • the Home Minister can give directions to the head of the data bank relating to their powers and functions, and the head of the data bank shall give effect to such directions;
  • the taking of non-intimate samples (hair, saliva) can be taken by any police officer who may use “all means necessary” to take a sample; and
  • any information from the DNA data bank shall be admissible as conclusive proof of the DNA identification in any proceedings in any court.

DNA Bill must be scrapped, say legal experts
Tan Yi Liang
Oct 14, 2008 – the Sun

KUALA LUMPUR (Oct 14, 2008) : A panel of legal and scientific experts have called for a re-examination or a total scrap of the DNA (deoxyribonucleric acid) Identification Bill 2008 that was tabled in Parliament on Aug 18.

Constitutional law practitioner and expert Tommy Thomas said the Bill was drafted in “extreme language”.

Speaking in the Bar Council public forum titled “The DNA Bill: Do We Need It” on yesterday, Thomas said: “Although the Bill may have laudable intentions in trying to apply 21st Century scientific and technological advances to the detection and prosecution of crimes, it is drafted in such extreme language that it shifts the balance from the accused to the prosecution in a wholly unacceptable manner.”

“The Bill is so poorly drafted that it cannot be improved by debate and by amendment. It is my case that the Bill has to be withdrawn immediately,” he said.

Thomas, who was the first to speak from a panel of six speakers, pointed out the following flaws in the Bill:

> Clause 2 – that DNA sampling is not limited to serious offences; DNA can be taken from any individual who has committed any offence;

> Clauses 7(1) and (2) – that the head and deputy head of the DNA data bank are police officers;

> Clause 9 – that the head of the DNA data bank has the power to rectify any particulars, and that such rectification is not considered an act of tampering;

> Clause 10 – that the Home Minister can give directions to the head of the data bank relating to their powers and functions, and the head of the data bank shall give effect to such directions;

> Clause 13 – which governs the taking of non-intimate samples (hair, saliva) can be taken by any police officer who may use “all means necessary” to take a sample; and

> Clause 24 – that any information from the DNA data bank shall be admissible as conclusive proof of the DNA identification in any proceedings in any court.

“In order to cover up sloppy police detective work, they can now hide behind this ‘conclusive proof’ section and present this evidence,” said Thomas.

Fellow panelist and Sungai Siput MP Dr Jeyakumar Devaraj concurred with Thomas on Clause 13, describing it as a “terrible” Bill to be used as a means of legitimising police brutality.

“Already now, there are people dying in police custody. This kind of Bill will give the police a licence to do what they want,” said Jeyakumar, who said the phrasing of Clause 13 is “unparliamentary language”.

He also pointed out the danger of samples being kept in the database over indefinite periods and the lack of safeguards.

“We need a Bill where you need permission to collect samples. You just can’t whack the person up to collect them,” said Jeyakumar, who expressed his support for a proposal by an earlier speaker, criminal law expert Datuk’ V. Sithambaram, who suggested that an adverse inference could be drawn by the court from suspects who refused to give a sample.

“When you look at this Bill, you have to look at it in the Malaysian context. How have our police and Attorney-General conducted themselves? Are they professional, are they independent? Are they at that level of integrity that you give them such a powerful weapon and put it in their hands,” asked Jeyakumar.

Both speakers were backed by Nanyang Institute of Education’s DNA Centre head, Dr Koh Chong Lek, who identified possible uses of the Bill for crime solving and identification of missing persons.

“(But) there must be ‘confidence in the database, confidence in the competence use … to convict the guilty and exonerate the innocent’. There is is no clear purpose defined in the Bill,” he said, cautioning that the use of DNA-based evidence was a “double-edged sword”.

“DNA evidence is very useful, if it is used properly, well and good. But if it is not used professionally, it can be misinterpreted and lead to miscarriages of justice,” said Koh who reminded that such incidents have already happened in countries with DNA databases.

However, this view was disputed by ACP Yew Chong Hooi of the Forensics Division of the Royal Malaysia Police and Chemistry Department forensic unit director Primulapathy Jaya who argued that the collection of DNA would simplify police work by allowing detectives to trace patterns in crime, and aid in solving difficult cases.

“If you don’t have legislation, how do you legally collect a sample?” asked Yew, who had earlier said the use of DNA was essential in identifying serial patterns, or in eliminating suspects from a crime.

…more




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Felda - A picture is worth a thousand words
How the 1MDB Scandal Spread Across the World (WSJ)
We cannot afford ridiculously expensive RM55 Billion ECRL!
All that is necessary
for the triumph of evil
is for good men
to do nothing.

- Edmund Burke
When the people
fears their government,
there is TYRANNY;
when the government
fears the people,
there is LIBERTY.

- Thomas Jefferson
Do you hear the people sing?

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