Electronic copy available at: http://ssrn.com/abstract=1687468

Sydney Law School

Legal Studies Research Paper

No. 10/91

October 2010

The New Malaysian Criminal Procedure: Criminal Procedure (Amendment) Act 2006

Salim Farrar

This paper can be downloaded without charge from the

Social Science Research Network Electronic Library

at: http://ssrn.com/abstract=1687468.

Electronic copy available at: http://ssrn.com/abstract=1687468

The New Malaysian Criminal Procedure: Criminal Procedure (Amendment) Act 2006

Salim Ali Farrar

Abstract

This paper explores the reform process surrounding the recent changes to the

Malaysian Code of Criminal Procedure concerning statements made to police officers,

discovery, body searches, rights to legal advice and detention. The Criminal Procedure

(Amendment) Act 2006 was the first major piece of legislation to reform the criminal process

in Malaysia for 20 years and represented an attempt not only to deal with specific problems

relating to police practice and the pre-trial process, but also to single out Malaysia as a

progressive state within Asia committed to the Rule of Law. The problem which this paper

seeks to address, however, is that while many of the reforms appear to be a welcome attempt

to protect suspects in police custody from abuse (a startling contrast to the recent legislative

measures introduced in the UK as part of the war on terror), to better regulate police investigations and to improve the overall quality of justice administered pre-trial, a doubt

lingers as to the direction of that reform and of the values guiding the criminal process. It will

be argued that, without clear cultural markers, implementation of the new measures is likely

to be piecemeal and previous cultural practices will continue to undermine even the best of

legislative intentions.

Introduction

On 5 October 2006, the Criminal Procedure (Amendment) Act 2006 (Act 1274 2006) was

gazetted and passed into law. That law came into force in August and September 2007, and

represents the single biggest change in Malaysian criminal procedure for more than

30 years. For a criminal justice system formerly characterized by and known for its inertia,

the amendments represent a shock to the system. They include new regulations on police

investigations, greater provision of rights to suspects pre-trial, introduce video testimony and

live television links during trial, and add new packages of sentencing options. In summary,

the reforms are an ambitious attempt to revamp and modernize the Malaysian Criminal

Justice System (Farrar, 2008).

This article will not discuss the amendments to trial and sentencing (though not without

importance), but will focus instead on the amendments to the pre-trial process which has been

the subject of media attention both at home and abroad. It will be evident that, while many of

the incorporated amendments focus on protecting the rights of the accused and appear to

bring an equitable balance to the Malaysian adversarial criminal process, the complex nature

of the problems which Malaysia faces requires paradoxically greater state control and

direction producing possible tensions in the system which in the future may prove difficult to

reconcile. Moreover, it will be submitted that without cultural shifts and behavioural changes

within the police force and proper monitoring by public prosecutors, the recently declared

war on criminals (New Straits Times, 6/12/2007) may only complicate matters further. Before setting out and discussing the different amendments and reforms, let me begin by

explaining their context and the three pivotal reports which drove those reforms.

Electronic copy available at: http://ssrn.com/abstract=1687468

The Royal Commission to Enhance the Operation and Management of the Royal

Malaysia Police (2005) (The Royal Commission)

In December 2003, the new Malaysian Prime Minister, Dato Seri Abdullah Haji Ahmad Badawi, intent on institutional reform andmaking it clear that his administration would not be

a carbon copy of his predecessor, made a speech to the Royal Malaysia Police (PDRM) on

the challenges confronting them at the beginning of the twenty-first century and that the

PDRM were an important item on that reform agenda. The PDRM no longer enjoyed the

public trust and confidence it once did, and its reputation had been damaged terribly in the

wake of the Anwar Ibrahim affair and the beating he received at the hands of a very senior

police officer. In addition to addressing popular claims of widespread corruption and routine

abuse, the time had come to look afresh at the policing function and to explore the need and

extent for reform.

On 4 February 2004, a Royal Commission on the PDRM was set up under the chairmanship

of Tun Mohamed Dzaiddin bin Haji Abdullah. Among its terms of reference, it was to

enquire into:

(1) the role and responsibilities of the Royal Malaysia Police in enforcing the laws of the

country;

(2) the work ethics and operating procedures of members of the Royal Malaysia Police; and

(3) issues of human rights, including issues involving women, in connection with the work of the Royal Malaysia Police.

Essentially, the Royal Commission was a fact-finding mission, but it was also charged with

the responsibility of suggesting reform in the light of its findings. Findings were based on

information obtained from public inquiries held throughout the country, two surveys

conducted by the Royal Commission itself, formal visits to Police establishments (e.g.,

Bukit Aman), feedback received from the general public and from focus groups [e.g., Bar

Council, Anti-Corruption Agency, Department of Islamic Development Malaysia (JAKIM),

and others].

In terms of overall policing performance and public confidence in the PDRM, the

Commission noted that crime rates had been rising. This could have been for a number of

reasons, such as changing economic and social conditions, and not just policing failures, but

public reaction to those figures was a matter of genuine concern. In the survey taken by the

Royal Commission, it found that while 71.5% of the general public was either satisfied, moderately satisfied or very satisfied with their ability to maintain law and order, the level of satisfaction in other areas of policing was very low. For example, in robbery and theft

cases only 15.9% of respondents deemed police performance satisfactory, while 53.4% were

dissatisfied or very dissatisfied. The levels of dissatisfaction for organized and gang-related crime, drug-related crime, violent crime, commercial crime, juvenile crime, crime prevention,

and community relations were slightly lower, but nevertheless still very high.

The reasons for the apparent dissatisfaction were not difficult to find. The Commission noted

that in many cases Police gave the impression they were not taking any follow-up action. Of

1,894,989 reports received in 2003, only 13% were investigated by the Police. Although

Police had in fact taken action or referred the case to a more appropriate agency to investigate

in many cases (e.g., 30% of reports received in 2003 were referred to other agencies to deal

with), they had not told the complainant. This reflected a general attitude of not keeping

complainants up to date with the progress of their case.

The Commission also found some grounds for public concern over the efficiency of police

investigations. They discovered that the police were unable to follow leads given by the

complainant, lacked investigation skills, and were unable to distinguish the essential elements

of a crime and thus the evidence they would need to obtain to establish it. In turn, this led to

many failures to prosecute and to non-convictions (this terminology is ambiguous; it would have been more helpful if the Report had specified how many of these cases were dropped by

the Public Prosecutor and how many were acquitted).

The Commission also received a number of complaints of gross insensitivity and

inappropriate behavior by police officers. In one reported rape case, while officers were

waiting in the hospital registration area to arrange a medical examination for the rape victim,

one of their colleagues working there asked why they had come to the hospital. One of the

officers pointed to the victim and said loudly Rogol (rape). It is, perhaps, not surprising that the survey of public opinion carried out by the Royal Commission found that only 75.3% of

victims of crime reported the crime to the Police. This is probably an underestimate due to

the very small sample (575 persons). Most crime surveys show a big discrepancy between the

crime figures reported to the police and the actual occurrence of crimes. For example, in

England and Wales in 2001-2002 only 42% of all crimes were reported to the Police (see

Simmons, 2002).

In addition to complaints over the effectiveness and propriety of investigations, manifest

concern was expressed at the findings of widespread abuse of procedures and the apparent

irrelevance of the existing law in preventing that abuse. The Commission noted the

following:

(1) A widespread tendency to arrest and remand first before conducting any investigation. Generally, investigations were not conducted in the initial 24 hours after arrest. Suspects

frequently were not told of the grounds of their arrest;

(2) Non-adherence to the presumption of innocence; most suspects presumed guilty of some

wrong-doing;

(3) Suspects strip-searched in front of other detainees and otherwise in violation of the

CPC;

(4) Suspects remanded in custody when they could have been bailed;

(5) Police would make requests for excessive remand periods;

(6) Suspects detained for longer than 15 days in violation of the CPC. The Commission heard

of cases where suspects had been detained for 2 months in different police stations and in

different states. They were denied access to lawyers and family members, and prevented from

making a phone call;

(7) Significant numbers of deaths in custody. Between January 2000 and December 2004,

there had been 80 deaths of suspects held in lock-up and custody (PDRM statistics).

The Police had not investigated or held inquests into these deaths;

(8) Sufficient numbers of complaints of torture to warrant concern [especially of detainees held under the Internal Security Act (ISA)]. Methods reported included: physical beatings,

sexual humiliation and psychological intimidation (especially of a religious nature where

detainees were religiously observant).

The Commission also found that the Police resorted to emergency laws, such as the ISA, to

detain suspects to facilitate their investigation of routine crimes rather than for exceptional

matters for which those laws were intended. The Commission said:

The Commissions enquiry showed that in a number of cases preventive laws were used as a means of detaining persons where sufficient proof could not be ascertained to charge them in

open court. Furthermore detention laws provide a convenient short cut to crime solving

instead of rigorous and coordinated investigations. It also reflected weakness in police

officers in undertaking high quality evidence-based investigation (p. 126).

The Commission on Nude Squats (2006)

The issues highlighted in the Royal Commissions Report on the Royal Malaysia Police came into sharp focus in one incident that occurred at the latter end of 2005 and which caught the

attention of the media worldwide, and especially of China. A video clip from a mobile phone

had been taken and circulated of a naked woman, originally thought to be

Chinese, performing ear squats in front of a uniformed Malay Police woman whilst in a

police lock-up. This provoked uproar in the Malaysian press and the Dewan Rakyat, as well

as a flurry of diplomatic activity between Malaysian and Chinese politicians. The demands

for a full and official investigation were quickly answered and the Commission to Enquire

into the Standard Operating Procedural Rules and Regulations in Relation to the Conduct of

Body Search in Respect of an Arrest and Detention by the Police (2006) set up on 1

December 2005 with an obligation to return its findings within 30 days. The Commission had

the full backing of the Attorney General and his department and heard submissions and

testimony not just from the immediate parties involved (including the female detainee), but

also from senior police officers, doctors, prison wardens, and interestingly, representatives

from JAKIM, academics from the International Islamic University Malaysia and SUHAKAM

(the Human Rights Commission of Malaysia). The terms of reference of the above

commission were to enquire into:

whether the female person in video clip was a Chinese National; the conduct of the body search; whether there was any impropriety; the Standard Operating Rules, Rules and Regulations relating to body searches.

The purpose of the Commission was to dispel any notion of a cover-up and to investigate, in

transparent fashion, whether there had been any abuses of power by the police. The rapidity

and decisiveness of the Malaysian governments response was a clear indication of the enormity of the potential political fall-out at home and abroad. Local opposition MPs,

looking to make political capital from the incident, were linking the video clip to an alleged

frequent police practice of strip-searching female Chinese immigrants upon their arrival in

Malaysia. Understandably, this aroused the concerns of the Chinese government, sparking a

number of diplomatic exchanges between the two countries.

The hottest political issue, namely the racial background of the woman in the clip and

whether there had been any systematic racial discrimination, was quickly resolved. It was

discovered and proved at the outset by the evidence before the Commission that the woman

in the video clip was a local Malay and not a Chinese. It also became apparent that the female

officer carrying out the body search was merely following orders and had not consciously

sought to humiliate the young woman or to invade her privacy. The focus of the Enquiry then

shifted to the impropriety of such searches in general, their extent and whether they had any

legal basis in Malaysian law.

Looking at the procedure in its entirety, the Commission found repetitive ear squats (in

Malay, ketuk ketampi) conducted completely in the nude were haram or prohibited in

Islamic Law and also a violation of a persons human rights. Although there might be certain justifications in limited circumstances to discover whether a person had secreted contraband

vaginally or anally to perform a squat, there was no logical or medical reason why a person

should have to perform the exercise completely nude nor why they had to stand up and down

repeatedly. Further, this mode of conducting a body search had been indiscriminately practiced by the Malaysian Police and without any legal authority. There were no provisions in Inspector General Standing Orders (IGSOs), the Perintah Tetap Ketua Polis Daerah, the

Lock-up Rules 1953, or in the Criminal Procedure Code authorizing its use. Deputy Inspector

General of Police, Dato Sri Musa Bin Haji Hassan, giving evidence before the Commission of Enquiry, admitted that there were no written provisions authorizing the practice, but that it

had been carried out over the years based on oral instructions. As a result of these findings,

the Commission recommended that the ketuk ketampi procedure be discontinued immediately.

Systemic delay: SUHAKAM Report on the Right to an Expeditious and Fair Trial

(2005)

In addition to the pressure mounting on the government to do something in respect of the

overall management, regulation and supervision of the Malaysian Police, concern had long

been expressed relating to the length of time investigations and prosecution of cases were

taking, and that the delays were resulting in injustices. It had not been uncommon for trial

dates to be fixed between 1 and 3 years because of the log-jam in the courts. These concerns

were expressed during a two-day conference organized in Kuala Lumpur by the

Human Rights Commission of Malaysia (SUHAKAM) on 78 April 2005 and later widely disseminated in its Report on the Right to an Expeditious and Fair Trial.

The causes of this delay were numerous, but chief among them was the de facto reality of

police officers conducting prosecutions in the lower courts with little or no involvement of

deputy public prosecutors or of officers from the Attorney Generals Chambers unless their advice was specifically sought. This resulted in poor case preparation, unsustainable

prosecutions and frequent adjournments when cases went to trial. Lines of communication

existed, but DPPs were not being involved on a day-to-day basis in the assessment of

evidence, framing of charges and even in decisions to discontinue cases (a direct violation of

Article 145(3)1 of the Federal Constitution and difficult to reconcile with section 377 of the

CPC2). Police officers had insufficient knowledge and legal expertise to prepare cases for

trial, and inefficiencies during the pre-trial stages were hampering successful prosecutions.

Frequent intervention by independent public prosecutors was required, even during the initial

stages of investigation, in order to facilitate better assessments of evidence and of the

information obtained by investigating officers.

The Report also mentioned that channels of communication between prosecution and defence

and the lack of flow of information between them were adding to the delay in the courts. The

existing rules pertaining to disclosure allowed only for limited pre-trial disclosure of

1 The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court martial.

2 Section 377 of the CPC vests power in the Public Prosecutor and only those persons specifically mentioned in the section to conduct prosecutions.

documents upon application by the defence to the Court under section 51 of the CPC.3

Prosecution witness statements and statements of co-accused were considered privileged

documents and could not be disclosed prior to the trial even upon application to the court (for

reasons of public policy and the genuine fear that witnesses and evidence could be tampered

with before the trial; see Husdi v PP [1979] 2 MLJ 304). Even basic documents such as

copies of the charge sheet, first information reports and statements made under caution (under

the old section 113 of the CPC), were normally lacking until defence counsel made their first

appearance at trial. The usual result was an adjournment in order to allow proper preparation

for the defence (SUHAKAM 2005).

Following discussion with interested parties, SUHAKAM recommended importing the

procedure for disclosure applied by the UK along the lines of the Criminal Procedure and

Investigations Act 1996. This provides for a two-stage process of disclosure the first of which

obliges the prosecution to disclose all material upon which it intends to rely at trial and

which, in the prosecutors opinion, might undermine its case. The second stage of prosecutorial disclosure occurs following a statement given by the defence and requires the

prosecution to disclose all material that might reasonably be expected to assist the defence of the accused (sections 35 of the Criminal Procedure and Investigations Act 1996).

It is interesting that SUHAKAM noted the object of these reforms and of the criminal trial

itself should be to find out the truth and not to obtain a conviction at all costs. Further, it

added that the role of the prosecutor should be to put information before the courtwhether it is in favor of the accused or against himto ensure that justice would be done. This is a comment on the values underpinning the criminal process in Malaysia and is a topic to which

I will return later.

The Dewan Rakyat Special Select Committee Report (2006)

In the previous sections, I have sought to describe the criminal justice context to the 2006

amendments to the Criminal Procedure Code by setting out three key reports. It is apparent

from the composition of the Commissions and Forums responsible for these reports that the

government was engaged in a very broad consultative process and that any reforms to the

Criminal Procedure Code and to the structure of Malaysian criminal justice would not be

undertaken lightly. This exercise in participative democracy was also reflected in the variety

of persons who made submissions before the Special Select Committee set up to inquire into

the Bill to amend the CPC. The two-year consultative exercise, which began on 20 July 2004

and before publication of the above reports, heard representations from Human Rights pressure groups such as SUHAKAM, SUARAM (Suara Rakyat Malaysia, the Voice of the Malaysian People), Police Watch and the Joint Action GroupViolence Against Women, as well as from the Attorney General, the Deputy Police Chief, the Chief Registrar of the

Federal Court, and representatives from the Malaysian Lawyers Association, the Prison

Service, and from local universities. The Committee also sent delegations to Australia and

New Zealand and explicitly took into account the findings and recommendations made by the

3 The relevant provision is s 51(i): Whenever any Court or police officer making a police investigation considers that the production of any property or document is necessary or desirable for the purposes of any

investigation, inquiry, trial or other proceeding under this code by or before such Court of officer such Court

may issue a summons or such officer a written order to the person in whose possession or power such

property or document is believed to be requiring him to attend and produce it or to produce it at the time and

place stated in the summons or order.

two Commissions in respect of the management of the police and the rights of suspects while

in police custody, and impliedly the findings of SUHAKAM in respect of delay.

Although many of the recommendations from the reports were incorporated into the

2006 amendments to the CPC, the diversity of opinion canvassed before the Select

Committee clearly forced some compromises. In relation to body searches, rather than have a

Code of Practice that would have applied only to the Police (and implied that only they would

be subject to strict and regulated standards of decency) and been more administrative than

legal, the new rules were attached in a Third Schedule (now the Fourth Schedule) to the Criminal Procedure Code and applicable to all law enforcement agencies that have powers of

arrest (such as Customs and Immigration officers, amongst others) and to all searches when

the person is under arrest [see s. 20A(2) Criminal Procedure (Amendment) Act 2006]. The

recommendation to divide body searches into the categories of pat downs, strip searches, intimate searches and intrusive searches was acted upon as was the prohibition on total exposure of a person during such searches [Fourth Schedule, paragraphs 9 (c), 9 (k) and

12(a)]. The detailed provisions on Intimate Search (paragraph 12) replace the ketuk ketampi and are set out below:

Whenever any officer of any enforcement agency conferred with the power of arrest of a person under any law conducts an intimate search on a person arrested, the following

procedure shall be complied with:

(a) if necessary, the person arrested may be instructed to remove all clothes covering the

bottom half, from the navel downwards;

(b) if necessary, the person arrested may be instructed to squat over a mirror placed on the

floor and made to cough deeply not more than ten times;

(c) when nothing is recovered after the squat and coughing deeply up to ten times, the

intimate search shall stop and the person arrested shall be allowed to put on his clothes;

(d) where the officer considers that the person arrested is incapable of doing the squat due to

the health, physical conditions or appears to be or claims to be pregnant, the squat shall not

be performed;

(e) the officer shall not attempt or conduct any external intervention in discharging the article

from the body orifices of the person arrested.4

It will be noted that these provisions include squatting and coughing over a mirror while

covering the upper half of the body. The suggestion that whole body scanners be installed in

police stations to avoid unnecessary exposure was not followed (possibly for reasons of cost).

Squatting and coughing over a mirror was clearly a practical and much cheaper compromise.

In order to rectify many of the abuses that took place while an accused was in police custody,

a new section 28A has been included in the CPC (following the recommendation of the Royal

Commission on the PDRM) granting special status to the rights of a person under arrest.

Considering its importance, the section is set out in full as follows:

(1) A person arrested without a warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.

(2) A police officer shall, before commencing any form of questioning or recording of any

statement from the person arrested, inform the person that he may

4 Sub-paragraph (f) has not been reproduced here, but requires all the conditions of strip searches to be followed.

(a) communicate or attempt to communicate, with a relative or friend to inform of his

whereabouts; and

(b) communicate or attempt to communicate and consult with a legal practitioner of his

choice.

(3) Where the person arrested wishes to communicate or attempt to communicate with the

persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be,

allow the arrested person to do so.

(4) Where the person arrested has requested for a legal practitioner to be consulted, the police

officer shall allow a reasonable time (a) for the legal practitioner to be present to meet the person arrested at his place of detention;

and

(b) for the consultation to take place.

(5) The consultation under subsection (4) shall be within the sight of a police officer and in

circumstances, in so far as practicable, where their communication will not be overheard.

(6) The police officer shall defer any questioning or recording of any statement from the

person arrested for a reasonable time until the communication or attempted communication

under paragraph 2(b) or the consultation under subsection (4) has been made.

(7) The police officer shall provide reasonable facilities for the communication and

consultation under this section and all such facilities provided shall be free of charge.

(8) The requirements under subsections (2), (3), (4), (5), (6) and (7), shall not apply where the

police officer reasonably believes that (a) compliance with any of the requirements is likely to result in -

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement

is so urgent that it should not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank

of Deputy Superintendent of Police.

(10) The police officer giving the authorization under subsection (9) shall record the grounds

of belief of the police officer that the conditions specified under subsection (8) will arise and

such record shall be made as soon as practicable.

(11) The investigating officer shall comply with the requirements under subsections (2), (3),

(4), (5), (6) and (7) as soon as possible after the conditions specified under subsection (8)

have ceased to apply where the person arrested is still under detention under this section or

under section 117.

In summary, the new section includes a right to be informed as soon as may be of the grounds of his arrest and obligations: to inform the arrestee that he may communicate both

with friends or relatives to inform them of his whereabouts and with a legal practitioner of his

choice; to allow the arrested person to so communicate as soon as may be; allow a reasonable time for the arrestee to consult with his legal practitioner; to allow that consultation to take place and to defer any questioning for a reasonable time until such communication has taken place; and to provide reasonable facilities for the communication

and legal consultation free of charge. Coupled with these rights and obligations, there are

get-out clauses for the police who can avoid complying with these provisions if they have reasonable belief that accomplices would be tipped off by allowing such communication, that evidence or witnesses would be tampered with, or that questioning is so urgent that it should not be delayed having regard to safety of other persons. Protection against over liberal interpretation of these exceptions is provided by the need to secure authorization from

a police officer of a rank not lower than Deputy Superintendent and that he shall record the

grounds for his belief. This seems to suggest that the legislature expects judicial oversight

and is not leaving regulation to the operational management of superior police officers.

To a certain extent, these amendments follow the recommendations of the Royal

Commission, recognizing that many of the abuses by the police were alleged to have taken

place in the absence of legal representation in the police station, and appear to be an attempt

(for the first time) to put lawyers in police stations on a routine basis. Whether that will

happen in practice, however, is another matter as the same room for manoeuvre exists for the

police in these provisions as under the previous law. Rights to consult with legal counsel pre-

trial belong to the entrenched provisions of the Federal Constitution (Article 5 (3)), and start

from the moment the person is arrested (see the judgment of Raja Azlan Shah FJ in Hashim

Bin Saud v Yahaya Bin Hashim & Anor [1977] 2 MLJ 116). But judicial interpretation of that

right in the past has rendered it nugatory and facilitated custodial interrogation in the absence

of legal counsel. The Federal Court has held that although an arrestee has a right to legal

advice upon arrest, it cannot be exercised immediately after arrest if it impedes police

investigation or the administration of justice (see: Ooi Ah Phua v Officer in Charge Criminal

Investigation Kedah/Perlis [1975] 2 MLJ 198). Although this pre-supposed the need to

justify refusal of legal counsel, in practice the police were rarely asked to do so.

There is also the practical point that legal aid is not available for even indigent suspects while

they are in the police station, and only the affluent can afford a lawyer. So even if the

judiciary were to take a pro-active response to section 28A, it would make little difference in

practice to the majority of the suspects who are picked up by the police. As experience from

the UK has shown, it is only when changes are made to the provision of criminal legal aid,

and changes occur within the legal profession itself, that the potential availability of legal

advice becomes more meaningful. In research carried out by Softly (1980) before the

introduction of the Police and Criminal Evidence Act 1984 (PACE), in 84% of cases no

mention was even made of the right of access to a lawyer (although that right technically

existed). By the time PACE had come into force, the provisions relating to the extension of

legal aid to pay solicitors for providing legal advice in police stations, the growth of the legal

profession, and the setting up of a national network of duty solicitor schemes (Bridges

2002) ensured an adequate supply of solicitors (or other legal staff) available on a 24-hour

basis (McConville et al. 1994). Although the Police would do their best to control access

(McConville et al. 1993), and the quality of legal advice was sometimes poor (McConville

et al. 1994), there is no doubting provision of legal advice within police stations increased in

the post-PACE period (McConville et al. 1994; Ashworth and Redmayne 2005).

It should be noted that the other recommendations of the Royal Commission included

detailed Codes of Practice while the accused is in detention, an independent Custody Officer

to supervise implementation of those codes, and for 24-hour CCTV coverage throughout the

station. These recommendations were not implemented. It seems that the Select Committee

took note of police objections that it would be impractical in the light of current staffing

levels and, as with the recommendation for body scanners, very expensive to implement.

It remains to be seen whether the government will regret their decision to omit a Code of

Practice and for there to be an independent Custody Officer. Empirical research from

England and Wales conducted after PACE came into force suggests that the Malaysian

government could be right and that the effectiveness of Custody Officers (and CCTV) in

protecting suspects rights minimal at best. In an experiment carried out on the effect of video-taping interrogations (McConville 1992), it was found that Custody Officers facilitated

informal interrogations off camera and helped investigating officers bend the rules. Although

the Custody Officer formally complied with his obligation to fill in the custody record, the

routine insertion of the expression, PACE Codes of Practice complied with, concealed actual anomalies in the interrogation, making subsequent proof of PACE violations virtually

impossible. If the Custody Officer chose to do so, he could side-step the protections of PACE

with ease and the custody record would validate his doing so (Sanders et al. 1989).

Notwithstanding the tendency of police officers to help their colleagues in subverting

procedure where they deem it appropriate (McConville et al. 1993), the absence of any

designated officer responsible for the implementation of the new procedures leaves an

uncomfortable void. As things stand, unless a suspect is well versed in criminal procedure, he

may still not know of any of the aforementioned rights as it is up to the investigating officers

to so inform him. Moreover, without automatic access to a lawyer in the police station, the

suspect may feel too intimidated to even raise the question of his so-called rights upon arrest or alternatively agree to waive them (a situation not even referred to by the amendments). Earlier research on the PACE experience carried out by Irving and McKenzie

(1989) and the late Tom Williamson (1991) also paint a more positive picture than

McConville et al. (1993), suggesting the introduction of independent (applying this term

loosely) Custody Officers would be at least a step in the right direction.

It was probably thought that the additional protections suggested by the Royal Commission

were superfluous in the light of the new section 113. This states:

(1) Except as provided in this section, no statement made by any person to a police officer in the course of a police investigation under this Chapter shall be used in evidence.

(2) When any witness is called for the prosecution or for the defence, other than the accused

the court shall, on the request of the accused or the prosecutor, refer to any statement made

by that witness to a police officer in the course of a police investigation under this Chapter

and may then, if the court thinks fit in the interests of justice, direct the accused to be

furnished with a copy of it and the statement shall be used to impeach the credit of the

witness in the manner provided by the Evidence Act 1950 [Act 56].

(3) Where the accused had made a statement during the course of a police investigation such

statement may be admitted in evidence in support of his defence during the course of the trial.

(4) Nothing in this section shall be deemed to apply to any statement made in the course of an

identification parade or falling within section 27 or paragraph 32(a) of the Evidence Act

1950.

(5) When any person is charged with any offence in relation to (a) the making; or

(b) the contents, of any statement made by him to a police officer in the course of police

investigation made under this Chapter, that statement may be used as evidence in the

prosecutions case.

There is nothing, in fact, new about this section as it is a replica of the CPC from the early 1970s before the introduction of cautioned statements. It excludes, for incriminating

purposes, all statements made to police officers by accused persons, whether made before or

after arrest. The temptation to extract confessions and incriminating statements, in theory, is

much reducedespecially in the light of the abolition of section 115 which had allowed an accused to repeat his confession before a magistrate. This section had been deleted on the

specific recommendation of the Attorney General acknowledging for reasons of their

workload and lack of experience, magistrates very rarely checked the authenticity of such

confessions and would simply defer to the police (Select Committee Report, 2006).

As with the rights to counsel, section 113 also has a number of exceptions, which may

operate in practice to undermine the very protections which the new section 113 of the CPC

purports to provide. The most important of these exceptions relates to statements obtained in

connection with the discovery of evidence admissible under section 27 of the Evidence Act

1950. This provision in the Evidence Act is a statutory offshoot of the Common Law rule in

Warickshall [(1783) 1 Leach C.C 263] which excluded involuntary confessions, but admitted

physical evidence found as a result of the information contained therein. Although this

section has invited considerable controversy in the Malaysian courts, it seems that section 27

remains an exception to the rule against voluntariness and leaves only a Common Law

discretion to exclude such evidence where the prejudicial effect outweighs its probative value

[Francis Antonysamy v PP (2005) 3 MLJ 389]. In the absence of cameras, there is a genuine

possibility that police officers may be tempted to use over zealous methods to extract such

statements, especially if lawyers remain outside the interrogation room and the police

continue to take short-cuts during their interrogations.

Although it might seem an affront to common sense to exclude this physical evidence, it is

not beyond the realms of possibility, especially in politically sensitive cases (where the

pressures to bend the rules have always been greatest), that the evidence could be planted.

The ongoing case concerning the murder of Mongolian model Altantuya Shaaribuu (2009)

and the submissions made by defence counsel during voire dires over the admissibility of

discovered evidence provide a very useful recent example.

The same compromise is reflected in the new provisions relating to remands under section

117 of the CPC. The Royal Commission had recommended that a new section 117 allow

magistrates to remand a person arrested without warrant for a maximum of seven days and

for those arrested with warrant for 24 hours. For a person arrested without warrant, the Police

would have to apply to a Magistrate for further remand every 48 hours until the expiry of

seven days. If there was insufficient evidence to charge the suspect after the expiry of seven

days, he would be released or given police bail if there was a need for further investigations.

In any case where the suspect was brought before the Magistrate, he would be given access to

a lawyer and asked by the Magistrate whether he wanted to make a complaint regarding his

arrest and detention.

These recommendations have been implemented only in part and, once again, because of

practical considerations and objections by the PDRM made before the Select Committee. The

new section 117 invokes a two-stage procedure depending upon the seriousness of the

offence for which the suspect has been arrested. If the offence is punishable with

imprisonment for less than 14 years, the detention shall not be more than four days on the

first application and no more than three on the second (s 117(2)(a)). If, however, the offence

is punishable with 14 years imprisonment or more or with death, the detention shall not be

more than seven days on the first application and seven days on the second [s 117(2)(b)]. The

new section also obliges magistrates to allow representations to be made, either by the

accused himself or through a counsel of his choice [s 117(5)].

However, there is no provision requiring the police to bring the suspect before the magistrate

every 48 hours nor is there any amendment stating explicitly that upon the expiry of the 7 or

14 days, depending on the seriousness of the offence, the suspect shall be released albeit on

police bail. The legislature was clearly concerned and agreed with the police that in the light

of current staffing levels and the upsurge in the reporting of crimes, following the

recommendations of the Royal Commission would have entailed releasing potentially

dangerous criminals and would not have given the police sufficient time to carry out even

preliminary investigations.

Although this legislative compromise seems a practical response to conflicting

considerations, the potential for abuse remains. Suspects might continue to remain in police

lock-ups for considerable periods, and the practice of chain-smoking orders could continue as the police try to prolong the suspects detention while they look for more incriminating evidence. In the absence of a computerized network linking all magistrate courts

5, it will

remain difficult to verify how many times a particular suspect has been brought before a

magistrate, a fact further complicated in that there is no longer any need to bring the suspect

to a magistrates court.6 Moreover, there is no mention in the amendments of a specific prohibition on bringing a suspect before a magistrate on repeated occasions.

Although an argument might be made for breach of process, it would seem the police could

try and re-arrest the suspect subsequently and give them an extra seven days (if they can

convince the magistrate) to find the evidence they require. The Malaysian government has also refused to follow the Royal Commissions recommendation to abolish the Emergency Regulations and to amend the Internal Security

Act 1960. In spite of some evidence that these enactments were being used to prolong the

detention of persons suspected of routine crimes and which did not relate to internal security,

the government clearly feels that a role remains for these pieces of legislation and that in the

future the police, and Special Branch in particular, can be trusted not to abuse the powers

vested in them.

As for SUHAKAMs recommendations on pre-trial disclosure, the Legislature has not reproduced the elaborate and detailed scheme found in the Criminal Procedure and

Investigations Act 1996. The new section provides:

(1) The Prosecution shall before the commencement of the trial deliver to the accused the following documents:

a. a copy of the information made under section 107 relating to the commission of the offence

to which the accused is charged, if any;

b. a copy of any document which would be tendered as part of the evidence for the

prosecution ; and

c. a written statement of facts favourable to the defence of the accused signed under the hand

of the Public Prosecutor or any person conducting the prosecution.

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the

accused if its supply would be contrary to public interest.

There is no mention of a two-stage procedure or of any obligation on the part of the defence

to disclose any information. Instead, the section orders the prosecution to provide the defence

with the first information report and any document which would be tendered as part of the

evidence for prosecution. This would seem to include statements of the accused made under

section 112 of the CPC (i.e., made in his earlier capacity as a witness rather than as a

5 There are pilot projects underway on computerizing Malaysias Criminal and Civil Justice system, and a Bill was introduced in 2009 to facilitate electronic recording in court. Full scale implementation, however, still

seems a long way off.

6 Section 28(1) of the CPC has been amended, substituting the words Magistrates Court for Magistrate; see Criminal Procedure Amendment Act 2006, section 6(a).

suspect), medical reports and forensic reports. It does not seem to refer to witness statements

(made by other than the accused), as the prosecution would not be seeking to adduce the

witness statement itself as part of the evidence. Rather, it would be relying upon the oral

testimony given in court. Section 51A also obliges the Public Prosecutor or any person

conducting the prosecution to provide a written statement of facts favourable to the defence of the accused. In respect of the latter, the prosecution would not have to supply any fact if that would be contrary to the public interest (this follows the same pattern as the UK legislation). The meaning of public interest is not mentioned in the legislation and it is unclear whether its interpretation is left to the sole discretion of the Public Prosecutor or

could be determined by a court. Nevertheless, the fact that the Legislature has deemed fit not

to repeal or even amend the original wording of section 51, suggests an avenue remains open

for enterprising defence counsel to challenge a prosecution refusal to supply information

under section 51A(2).

On the surface, these provisions seem a lot simpler to apply and more appropriate for the

Malaysian context. The principal problem in Malaysia has been the failure on the part of the

prosecuting authorities to supply relevant documents and reports before the trial. Generally

speaking, it has not been because of alleged hijack defences (the main reason for the quid pro

quo provisions in the UK) by the accused and his team of defence lawyers. Second, the

Malaysian authorities are still concerned at the likelihood of cases collapsing because of the

apparent prevalence of witness tampering by criminal associates of accused persons. This

explains the pre-amendment rule against the provision of witness statements before trial [see

judicial comments made in Husdi v PP (1979) 2 MLJ 304] and the current Governments refusal to follow either the Indian or UK practice in this regard by not specifying the right to

witness statements. This was not a primary concern in the UK.

Whether or not these reforms will reduce delay and bring greater fairness to trial proceedings

is another matter. Interviews with criminal practitioners in Kuala Lumpur early in 2008,7

shortly after the coming into force of section 51A, seem to suggest they are happy with this

particular amendment to the CPC and that it is working well. But it is still too early to tell,

and more thorough and systematic research is required, especially in relation to cases in the

lower courts and in Sabah and Sarawak where police officers may be conducting the

prosecution. Although these police officers often have a lot of experience, their lack of

independence and absence of formal legal training can adversely affect the quantity and

quality of information provided to the defence. Although a DPP will prosecute in the High

Court and Assistant DPPs in the Sessions Courts, they will also rely upon information

provided by police officers. In order for disclosure to operate efficiently, this will require

close working relationships with the police and early intervention by the DPP in the

management of the cases and in preparation for trial. Otherwise, the adversarial tendency to

keep ones cards close to ones chest might prevent necessary and important information from being disclosed.

The need for early intervention by DPPs and some degree of supervision of police

investigations is reflected in the new section 120 of the CPC and has been given a new

impetus by the Governments announcement that it is establishing a task force in the

7 More than 100 students from the International Islamic University Malaysia were dispatched by the author and his former colleague, Mr Sayid Tariq, to interview members of the legal profession (and others) concerning their

impressions of the 2006-2007 amendments. A detailed analysis of their questionnaires and a follow-up study is

in progress.

Attorney-Generals chambers, made up of senior and experienced prosecution officers, to enable deputy public prosecutors to be involved in their respective cases in the initial stages

so that prosecutions can be undertaken more effectively (The Sun, 4 April 2007). It will be

their job to give practical effect to the new requirement in section 120 which places an

obligation upon police officers to complete their investigations without unnecessary delay and to submit reports of the investigation together with the investigation papers to the Public

Prosecutor within one week of the three-month period starting from the date of the

information given under section 107. Moreover, the Public Prosecutor will be able to

intervene at any time, irrespective of the non-expiry of the three-month period, and direct the

officer making the investigation or the officer in charge of the police district, to submit a

report. Failures to do so by police officers could result in disciplinary sanctions and, in some

cases, criminal prosecutions under sections 175176 of the Penal Code.

The subjection of the police to the overall supervision and direction of the PP, however, is not

unambiguously stated and a number of grey areas remain. Section 120, for example, makes

no comment of oral and written instructions by the PP and DPPs to police officers in the light

of those reports and whether they are obliged to follow them. Of course, the DPPs would be

wise to contact officers in overall charge of investigations, and their superiors in light of

disagreements or failures to follow leads (for example), but what happens when they see their

instructions are not being followed or have been ignored? Section 376 of the CPC says that

the PP shall have the control and directions of all criminal prosecutions and Article 145(3) of the Federal Constitution vests ultimate responsibility for the instituting and conducting of

prosecutions with the PP as well. But one wonders in the light of heavy workloads (crime

rates still persistently high), practical restraints at the ground level, and current police

operating culture and attitudes, whether the PP would intervene and would be asked to

intervene in many cases. DPPs will still be dependent upon the reports written by and

forwarded to them by the Police and so, ultimately, it is the Police who will filter the information which the DPPs receive. It is possible that not all relevant information will be

included in the reports and that the Police will continue to operate as they have done before,

albeit with more form-filling.

Conclusion

The protracted development of the 2006 amendments to the CPC, the Select Committees admission that it felt the need to respond to the findings of the different Commissions of

Inquiry, and the scratching around for some convenient legislative fix might give the impression that there was a lack of internal coherence to these amendments, and that the

Government was merely stumbling from one crisis to another. Nevertheless, the range of

opinions sought, the consultative nature of the reform process, and the careful adaptation of

some of those imported laws indicate a serious determination and effort on the part of the

Malaysian government to address serious problems in the criminal justice system that had

been left untouched for decades. For that, it should be congratulated. In the final analysis,

however, the success of these amendments will depend upon the ability of the

Malaysian Government to follow through with all of its reforms, including the restructuring

and training of the PDRM, and the precise role that will be given to public prosecutors. This

will require close government monitoring of the amendments and substantial financial

investment in infrastructure and training. It will also necessitate a huge government push in

fostering cultural shifts and changes in operational behaviours and attitudes of the police,

magistrates and prosecutors. The Malaysian Government is not unaware of this, which

explains their emphasis on Human Rights and Syariah Principles as cultural guides to

police officers and other law enforcement personnel in the exercise of their powers and

discretion. The hope is that the new cultural markers will help to fill in the gaps left by the

legislation and will avoid repetition of previous bad habits.

Whether this will be enough to effect the desired changes is difficult to say. Using law as a

tool in social engineering and affecting cultural change is problematic even when the

Government has a complete reform programme and is addressing the issue from many

different angles (Allott 1980). Populations and communities have a tendency to reproduce

and continue practising cultural norms even in the face of apparently hostile and

contradictory laws. The multi-faceted and repeated attempts by former Kemalist governments

in Turkey to secularize its people and to turn them away from religious precepts appear to

have failed (Yilmaz 2005), as did similar attempts in Algeria (Aoued 1996). The ketuk ketampi and apparently routine beatings of suspects held in police custody, along with the chain-smoking remand orders, existed in spite of their conflict with clear legal and constitutional provisions. Moreover, the background noise of a War on Terrorism and on crime may only serve to exacerbate this problem as reactionary elements regain their old turf

and return to their short-cuts. We will just have to wait and see whether our new cultural

markers, along with the amendments to the CPC, will prove the sceptics wrong.

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