THE recent Federal Court ruling in granting bail to a detainee under the Security Offences (Special Measures) Act 2012 (SOSMA) who is awaiting trial, is a step in the right direction.The police must take cognizance, adapt and enhance the tools of investigation as this ruling is a clear indication of having far-reaching consequences in the use and probable demise of preventive laws.The over-reliance of preventive laws of late, such as SOSMA, has become the bane of transparency and accountability within the justice system, as it has been misused many times in the past. Natural justice demands much more.Preventive laws were inherited from our colonial past and was a great necessity then. It has, however, outlived its usefulness especially after the war against the communist insurgency ended.Politicians in power have also in the past misused these powers to suppress political dissent and this added on to the distrust of these draconian laws, at the police’s expense.The age of trusting those in the corridors of power to do the right thing without effective checks and balances by the arms within the parliamentary system, is gradually coming to an end.The police have understandably become dependent on these laws as their powers of investigation have been, to some extent, curtailed by giving more rights to a suspect from the time he is identified.The Western ideals and beliefs have led the way for more sensitivity towards human rights and we are a part of this global evolution.The turning point of problems for the criminal investigation arm of all the relevant enforcement agencies here can be traced to when judicial rulings changed the amount of evidence required at the prima facie stage, from any evidence as long as it is not incredible to evidence beyond reasonable doubt.Many other tools of investigation were affected and they gradually eroded detention, further detention, administrative restrictions to using confessions and others.This was further compounded when some remand applications were subjected to mini summary trials. Suspicions, hunches and investigative instincts could not be pursued and thus the honing of these natural investigative skills deteriorated and contemporary investigators were forced to depend on preventive laws.The police at this juncture have in many cases been unable to collect all available admissible evidence, naturally turning to these draconian laws to get the job done.To a certain degree, this has also contributed to the escalation of distrust and loss of confidence by the public, especially when there are suspicions of political undertones involved.This was further compounded by some unsolved cases of interest and serious allegations of corruption and abuse of police powers. The situation becomes extremely difficult when the police are asked to investigate themselves.Time will gradually dilute these draconian preventive laws in a modern and progressive society. The police, in preparation, must swiftly reinvent and rejuvenate their powers as stipulated in the relevant laws.They must move forward to ensure that all the tools of criminal investigation are enhanced with the relevant checks and balances within their own framework of supervision apart from the criminal justice system.They must ensure that investigators are given every opportunity to explore evidence gathering at the investigative stage, so as to ensure that justice is not only done to a suspect identified or in custody, but also to victims, especially of serious crimes.Linking offences that do not create an atmosphere of terror to terrorism is unprofessional and will not instil confidence in society.The future in modern policing lies in transparency, full accountability and strict adherence to fair due process without fear or favour, within a firm, non-partisan criminal justice system that has effective checks and balances at every step of the process.Time now is of the essence. – December 23, 2020.* G. Selva reads The Malaysian Insight. * This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.
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