05/12/2020
Brief Differences between PUNITIVE Proceedings & PREVENTIVE Proceedings (Criminal law)
1. Both are two separate and distinct processes wich operates independently
2. PUNITIVE Proceedings is to PUNISH a person for the crime based on ADMISSIBLE EVIDENCE beyond reasonable doubt.
2A. Means if someone is arrested for drug offences for example, the prosecution have to prove in court that the accused person is guilty as charged, before that accused person can be sentenced and punished in accordance with the relevant law. i.e. Dangerous Drugs Act 1952
3. PREVENTIVE Proceedings is to PREVENT a person from doing acts contemplated under preventive legislation from recurrence of such acts so as to safeguard the public, based on HEARSAY and inadmissible evidence.
3A. Means even if you are arrested, while NOT in possession of dangerous drugs and/or tested negative for urine drug test, you can still be detained without trial (up to 60days remand & 2 year detention without trial which can be renewed) subject to the provisions under Dangerous Drugs (Special Preventive Measures) Act 1985 [Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985] "LLPK"
4. In the case of LEE KEW SANG v. TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS [2005] 3 CLJ 914,
The court held as follows:-
["Two things should not be confused. First, the power of the ATTORNEY GENERAL to institute CRIMINAL PROCEEDINGS and secondly, the power of the MINISTER to make a DETENTION ORDER. The power to institute criminal proceedings lies with the Attorney General and is provided by Article 145(3) of the Federal Constitution...
.On the other hand, power to order DETENTION under the Ordinance lies with the MINISTER by virtue of s.4(1) of the Ordinance which has been reproduced..."]
(Emphasis Added)
Q: So, who have the power to initiate, conduct, or discontinue PUNITIVE PROCEEDINGS?
A: Attorney General ("AG" [Art. 145(3) Federal Constitution]
Q: who is the Public Prosecutor?
A: Attorney General. In the absence of the AG, the Solicitor-General. The Public Prosecutor("PP") will then appoint Deputy Public Prosecutor ("DPP") (section 376 CPC)
Q: Can the DPP/PP/AG sign a detention order without trial under LLPK?
A: No. That is the power of the Home Minister (Menteri Dalam Negeri) (section 6 llpk)
Q: What should I do if I/my relative(s) are being detained without trial under Preventive Laws (LLPK, POCA, SOSMA, POTA)
A: Hire a competent lawyer with relevant skills & experience.
Q: I'm arrested under SOSMA, the police superintendent tells me that i cannot consult/call my lawyer within 48 hours. Is that true?
A: Yes. But you/someone on your behalf can STILL APPOINT a lawyer (Section 5(2) Security Offences (Special Measures) Act 2012. Your lawyer (if he/she is competent and/or experienced) will know what to do.
by Muhammad Amin bin Anuar
for and on behalf of Messrs. Amin Chambers
*The purpose of this post is to promote legal awareness. Know your rights under the law. Appoint and consult a solicitor of your choice for legal advice*
Mr. Amin 017 2244 034
Ms. Fira 011 6976 3424
