The Police Must Not Misuse Investigative and Detentive Powers — Malaysian Bar


Source: Malaysian Bar


Press Release

The Police Must Not Misuse Investigative and Detentive Powers

Logo-majlis-peguam-malaysia-malaysian-bar-councilThe Malaysian Bar is perturbed by the arrest of Sidek Kamiso and the handling of the police investigations against him for an allegedly insulting tweet on 16 September 2016, purportedly concerning the death of PAS spiritual leader Datuk Haron Din.

Sidek Kamiso was initially arrested at 4:30 am on 19 September 2016 at his home in Petaling Jaya for an alleged offence under Section 233 of the Communications and Multimedia Act 1998, which criminalises online content deemed offensive.  In the pre-dawn raid, four policemen in plain clothes and in an unmarked vehicle allegedly jumped over the gate of Sidek Kamiso’s house and repeatedly banged on the front door before gaining entry.  The policemen then searched his house in his wife’s presence, while their children — aged 10 and 14 — and a guest aged 12 locked themselves in another room fearing a robbery due to the commotion that ensued during the search.  This episode left the entire household, including the young guest, in fear, shock and disbelief.

After the search, Sidek Kamiso was instructed to get into the unmarked vehicle and was handcuffed en route to a police station on Jalan Tun Razak.  He was only allowed to make a brief call to his wife at about 10:30 am.  Thereafter, he was taken to Johor Bahru and produced in court at about 3:00 pm, during which time the investigating officer applied for a 4-day remand order, ostensibly so that the police could continue with their investigations.  However, the Magistrate refused the remand application, on the grounds that it was an abuse of the court process.

After his arrest, Sidek Kamiso was handcuffed at all times except when was placed in a cell, and continued to be handcuffed even after the Magistrate had refused the remand application. Although he had been arrested at 4:40 am, the police only recorded his statement at about 7:00 pm, after he was brought back to the police station.  Prior to his release on police bail at about 9:00 pm, Sidek Kamiso was constantly harassed, taunted and ridiculed by numerous policemen.

The second arrest took place on 29 September 2016, when Sidek Kamiso was asked to go to Dang Wangi police station to record a statement for an alleged offence under Section 298A of the Penal Code, which punishes those who cause religious disharmony.  After his case was processed, Sidek Kamiso — who was accompanied by his lawyer — was informed that he was now under arrest.  He was subsequently released on police bail after questioning.

Although the two arrests were for two different offences, both arrests were premised on the same tweet.

It is unclear why it was necessary for the police to arrest Sidek Kamiso at his home in the pre-dawn hours in connection with the allegedly insulting tweet and seek a 4-day remand order.  The police could have called Sidek Kamiso in for questioning, as was done on 29 September 2016.  Moreover, since the alleged offences arise from the same tweet, the police ought to have had sufficient information after the first arrest to determine the veracity of any subsequent complaint.  The second arrest appears to have been unnecessary.

It is troubling that the police continue to grossly misconstrue their investigative powers under our laws — such as the Criminal Procedure Code — and to exercise these powers in an oppressive manner.  Powers to arrest are not meant to be used to begin gathering evidence against an individual.  Further, investigative powers cannot be used to arrest or detain individuals, or to seek remand orders, only for the purpose of gathering evidence.  At the outset the police should have conducted thorough investigations, and not re-arrested Sidek Kamiso on the grounds that different offences might have been committed arising from the same facts upon the lodgement of another police report.  The powers of investigation and arrest must not be used to intimidate suspects.

The failure to act in an impartial manner undermines the credibility of the police force and leads to distrust concerning their neutrality, integrity and professionalism.  Those who make daily decisions within the police force need to be cognisant that the public is always watching, and that it is paramount that the performance of the members of the force is unimpeachable. The conduct of the police in this case will invariably give rise to an irresistible inference in the public mind that the police are abusing their investigative powers.

In this instance, the recent call by Tan Sri Razali Ismail, the Chairman of the Human Rights Commission of Malaysian (“SUHAKAM”) that the police, in exercising their powers, should be “the face of human rights, and not a face to intimidate”, is noteworthy.

The Malaysian Bar reiterates its call to the police to respect the rule of law and to cease abusing its investigative powers.

George Varughese
Malaysian Bar
10 October 2016