Rights may be inherent, but so long as there is no remedy for the breach of such rights, it is more or less worthless, observes Vince Tan.
Two Nights In Jinjang should be read to the background music of One Night In Beijing – but you might find that the Jinjang experience was not as pleasant as the song sang by Taiwanese Band Shin.
My detention in Jinjang was related to the #TangkapNajib demonstration at Sogo on 1 August 2015. I was investigated under Section 124B of the Penal Code for allegedly conducting activities detrimental to parliamentary democracy.
I remember asking what are “activities detrimental to parliamentary democracy” back when the law was introduced in 2012 via the amendment to the Penal Code. Ironically, three years down the road I was detained under this particular section.
“Activities detrimental to parliament democracy” is defined under S130(A)(a) of the Penal Code as an act of overthrowing the government by violent and unconstitutional means. I am not sure that the authorities understand the fact that freedom of assembly without arms is guaranteed under the Federal Constitution but they seem to get the wrong idea of who is really a threat to parliamentary democracy.
Now onto my detention experience: the police lockup in Jinjang is best describe as a Marxist/Communist/Socialist utopia where everyone (of the detainees) is truly equal. We all have the same amount of food, the same amount of water, the same bed, the same treatment and the same bathroom (toilet and shower). In exchange for absolute equality, one is deprived of his freedom – freedom to roam around freely, freedom to find entertainment and freedom to eat whatever food one desires.
This allowed me to rethink the fact that is it wise to sacrifice freedom for the sake of equality. Of course, this would lead to yet another philosophical and jurisprudence debate which I do not intend to address in this piece. The law of economics also applies in the lockup, where if the demand is high and supply is low, the price goes up.
One of the detainees told me that a roti canai costs only RM200 while some of my friends who were detained there for #OccupyParliament a few weeks later said KFC is available for RM300. One only has to ask one’s family members or friends to bank-in the money to a particular account and you can get the food you want. Talk about convenience.
I made some friends while I was detained; they were mostly suspected for drug offences, theft and (one whom I am not so sure) murder (because he told me he was detained under S302 of the Penal Code, unless I heard wrongly). There was even one guy who used to work at University of Malaya and he told me he worked as 308. I seriously did not know what kind of occupation 308 was until he told me in Bahasa Melayu “pencuri-lah”.
They were all very nice to me, realising I was political detainee. The police instructed them not to share certain information with me – I am not sure what they meant because I was a political detainee. I learned to complain a little less after the Jinjang experience because no matter how expensive the food was outside it was still cheaper than Jinjang roti canai or KFC.
The most ironic part was that I was invited to join the police force three times during the whole detention period. (I just kept silent each time they tried to influence me.)
I had to share my cell with eight other people while Hishamuddin Rais and Adam Adli – the so-called “VIPs” – got their own cells. Hishamuddin Rais, Safwan Anang, Fahmi Zainol and I appeared before the magistrate during the remand proceedings. The police applied for a seven-day remand on first application because it was under an offence which carries a heavy sentence. I will share a little bit on the law governing police remand applications.
Section 117(2) of the Criminal Procedure Code (CPC) provides that:
(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; and
(b) if the offence which is being investigated is punishable with death or imprisonment more than fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application.
The maximum number of days a person can be detained as a whole is 15 days according to Section 117(2) of the CPC.
Let me explain a few guiding principles governing the law of remand proceedings explained in a few decided cases. A remand is for the purpose of completing an investigations should it be unable to be completed within 24 hours and not for the purpose of commencing an investigation (Dasthigeer Mohamed Ismail v Kerajaan Malaysia & Anor).
There must be diligence on the part of the police in the investigation so that the investigation can be completed, and usually a copy of the police investigation diary is supplied to the magistrate as proof of what has been investigated on the suspect (In Re The Detention of S Sivarasa & Ors).
The magistrate must balance fairly between the right of personal liberty of the suspect who is innocent until proven guilty against the equally important public interest that crimes be investigated (In Re Syed Mohammad Syed Isa & Ors).
During my detention, I can safely say there was no investigation done upon me for the first 24 hours, and the remand itself is abused as a way to punish me for fighting for democracy and the people. It was only when my remand was about to finish that they took my 112 statement and my DNA samples.
Of course, I am allowed by law to sue those responsible for unlawful detention but the cost and the possibility of winning are very slim. There is no form of checks and balances in our system against such abuse of power by the executive.
Calls have been made for the establishment of the Independent Police Complaints and Misconduct Commission (IPCMC) but to no avail – despite the IPCMC being one of the recommendations of the report of the Royal Commission of Inquiry into police reform (also known as the Dzaiddin Report).
It is sad that, despite being guaranteed the right to freedom of assembly and to freedom of speech under Article 10 of the Federal Constitution, we are still subject to the arbitrary power of the executive and its agents.
I sometimes question whether the rule of law even exists in the first place or is it some bourgeoisie concept invented to make people believe in the system. Whatever it is, it is good enough if some human rights thing provided under the Constitution can get me out of the lock-up.
As a result, I remembered something in my Constitutional Law readings which says that rights may be inherent, but so long as there is no remedy for the breach of such rights, it is more or less worthless.
Something for all of us to ponder upon or take action; if not, you can forever hold your silence.
Vince Tan is secretary general of Progressive University of Malaya, a student rights movement advocating social democracy, social justice, moderation and progressivism.