Lawmakers raise alarm over proposed law amendment to Excise Act

A general view inside Dewan Rakyat during the swearing-in ceremony in Parliament, July 16, 2018. — Picture by Miera Zulyana
A general view inside Dewan Rakyat during the swearing-in ceremony in Parliament, July 16, 2018. — Picture by Miera Zulyana

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KUALA LUMPUR, Dec 16 — Several lawmakers raised the alarm in the Dewan Rakyat today over a proposed amendment to Section 56(e)(2) of the Excise Act 1976, which would disallow the accused from preventing self-incrimination and legal immunity for helping authorities.

Puchong MP Gobind Singh Deo argued that the proposed change also runs contradictory to the Federal Constitution which protects the said privilege for a person on trial.

The proposed amendment to the said law by the Finance Ministry reads: “Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, and that the agent provocateur is an officer of excise or a police officer whatever his rank, any statement, whether oral or written, made to an agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.” 

The government is seeking to introduce a revised Section 56(e) into Act also known as Act 176 to provide for the credibility of an agent provocateur’s evidence and the admissibility as evidence of any statement given to an agent provocateur, whether he is an officer of excise or a police officer whatever his rank, by a person who is subsequently charged with an offence, under this Act. 

Gobind lamented that this would directly impinge on the rights of an accused person.

“In any criminal prosecution, an accused person has a right against self-incrimination, which means that the prosecution must prove its case based on independent evidence which substantiates the complaint against the person.

“Now in this context, particularly the Federal Constitution, protects the accused persons to the extent that statements made by the accused person will not be used against him in the course of the investigation.

“So, if you look at this  provision, what it does is, notwithstanding any other written laws, the agent provocateur who is an officer; any statements made by an accused to an agent provocateur who is an officer, shall be admissible against the accused person at trial. It allows an agent provocateur to come to court and give evidence, including matters which the accused had told him or her,” Gobind told Malay Mail when contacted.

He stressed that the proposed amendment by the Finance Ministry is inconsistent with the Federal Constitution, on one’s right against self-incrimination

“Technically, what an accused person says to a police officer in the lead up towards a trial cannot be used against him,” Gobind added.

During the debate session on the said proposed amendment, DAP MP Datuk Ngeh Khoo Ham (Beruas) as well as Barisan Nasional (BN) MP Datuk Bung Moktar Radin had also expressed concern on the proposed amendment.

In his speech, Ngeh asked the government to clarify if an undercover agent provocateurs can also be charged in court, after he or she helps law enforcement authorities in their investigation.

“As I said earlier, I have taken up a case whereby the police used a drug addict to become an agent provocateur to nab drug traffickers and in the end, he was also charged as a drug trafficker and was sentenced to hang to death,” Ngeh said.

Deputy Finance Minister II, however said that such agent provocateurs can be charged if they have also committed an offence.

However, he said that their testimony is subject to investigation details.

Bung Moktar in his speech also agreed with the Opposition MPs, expressing concern that the authorities risk abusing their powers on the public.

“I am of the same opinion as my friends. That the agent provocateurs can be created, but the worry among the public is on power abuse, or them deliberately causing issues for certain targets only. So how will the government prevent this from happening? Because we also do not want this Act to oppress others.

“There are many types of agents. This Act is indeed good, but it is the individual’s trait that matters. Such persons are spies actually and spies have to be sincere. If the spies abuse their power then we are done for,” Bung Moktar said.

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