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[title]Soup kitchens in the city centre can operate as usual once again, now that the talk of the ban is off the table. Meanwhile, Prime Minister Datuk Seri Najib Razak has said that a shelter for the homeless will be up and running in six months’ time, and the government has implemented Ops Qaseh, an operation targeted at sending vagrants to welfare homes.
Ops Qaseh makes use of the Destitute Persons Act 1977, which allows the authorities to detain anyone they deem to be homeless or destitute without the need for a warrant or a trial. A magistrate can then order for the detainee to be put in a welfare home for up to three years.
Since many of us aren’t well versed in legalese, we got in touch with lawyer Fahri Azzat, who’s also a member of community human rights blog LoyarBurok. Fahri specialises in civil litigation with years of experience in legal aid. Here’s what he has to say.
It seems pretty good on the surface that the homeless detained under the act will be sent to a welfare home to be given care until they find a job. What do you think?
It’s not as simple as that. They have to satisfy the authorities by showing that they have the means to sustain themselves and probably get a job as well. Only then will they release the detainees. To be honest, I don’t know what the reality is on the ground for welfare homes. It does sound good but if I go with my experience of other places like Henry Gurney Prisoners School which is for incarceration, it’s not a place that helps you flourish.
The act, at first glance, sounds like you could constantly end up in a welfare home because you can be ordered to get in or you can choose to check yourself in. But once you check yourself in, it’s like ‘Hotel California’ [‘We are programmed to receive. You can check out any time you like but you can never leave!’], you can never leave until you satisfy the superintendent that you have means or somewhere you can stay. If not, you’re stuck there. Yes, it does sound good to be given care in a welfare home but you’re exchanging your freedom for that.
There are clauses in Section 11 that state the condition in which the officers can restrict or detain you. The destitute can be sent to prison for up to three months if they ‘refuse to be taken or offer any resistance.’ Can you elaborate more on that?
They can either be sent back to the welfare home or they can be put in a prison for no more than three months. If you think about it, the way it works is a bit crazy as it is very open to abuse. For example, a police officer sees X sitting by the road. He tells X that he thinks X is a destitute person. X tells the officer that he’s not going with him and will resist if the police insists on detaining him. Then and there, X has already committed an offence. If X is charged for it, he can go back to the welfare home. Depending on how he resisted, he could end up in a jail. So it’s very hard to say. It seems to be nice but there’s a real iron fist beneath the velvet covering.
Some NGOs and lawyers are participating in a movement to call for the abolishment of the act. Are you involved?
I’ve heard of them but I’m not involved. I would support it because this act is open to a lot of abuse. I think someone mentioned that the act infringes on your constitutional rights. There may be some merit in the movement but I’m not sure as I haven’t done full research on that. For myself, I don’t see what kind of standard, quality of care, facilities or environment the welfare homes are supposed to create. Most of them just merely accept destitute persons just because the act says so – but what standards are we holding the authorities to?
What would you add on to the act?
There should be a section in the act that states that a welfare home should have certain facilities to help the destitute get a job, learn a skill or help them psychologically. They should help them in a way that teaches them what to do with their life and deal with their personal issues. Many of them can’t get a grip on their personal issues and it takes them down. It’s manifested in loss of money, inability to hold a job or drug abuse. What I’m trying to say is that the welfare home should help them overcome some of these issues. If a man is messed up, and you give him a bunch of money or you ask him to get a job, he wouldn’t know what to do. He may feel the psychological burden again because you haven’t addressed what is underlying there.
[People seem to think] that the destitute don’t want to work, they’re lazy and that’s why they’re out there begging, as if it’s easy to beg. We’re in the 21st century and have heard and read so much on psychology and people’s emotions but no one seems to focus or be concerned about that.
If the Destitute Persons Act were to be abolished, do you think there would be another act to replace it?
It’s difficult to say because this will have to do with local by-laws. For example, there can be a by-law against people sleeping on the streets, and if they do that, they have the power to remove them. I can understand the purpose of this act but as usual in Malaysia, it’s the execution that really fails them. In and of itself, I know it may sound like a benevolent dictatorship, but I think that if it were carried out better, I really wouldn’t have an objection to the act.
There are other ways they can deal with this, other than the Destitute Persons Act. Laws ultimately are facilitative and it’s all about how you use them. There can be a very bad law out there but if a good, sensitive and humane officer is using it, there wouldn’t be any issue.
From a lawyer’s point of view, do you think the law is still relevant today, even though it’s a remnant from the colonial anti-vagrancy ordinances?
The act is modelled very much on the anti-vagrancy act passed during the colonial times, which is pretty much how most of our laws came to be. A lot of them were colonial enactments, even the Penal Code and Internal Security Act. Even though the act says 1977, they still look back to the earlier acts to see what’s been done. The act can be used to wipe people off the streets and that’s the danger of it. It really depends on how you work with the act. You can choose to round up the destitute and get rid of a lot of people. But if these welfare homes are run properly, they can actually improve society.
The act, given the local environment, gives more power to the authority to get rid of people. The act can do good to people but it really boils down to the person who is implementing it. If we don’t have the act, would you want people staying on the street then? Would you be okay if somebody says ‘I don’t want to work’ and makes the sidewalk his or her home? I don’t like it personally but I would say the act is somewhat relevant – but I think the solution should not be a legal solution. The solution to poverty should be an economic and political solution.
Local actress Mislina Mustaffa decided to go homeless by choice. What are your thoughts? Is she subjected to the act?
I can understand her need to want to experience a completely different world. I think that’s a very brave thing and she can experience things very few people can. That’s the thing: The act restricts you to live a certain kind of lifestyle. You need to have a house but this whole country is ours as well. If we want to hang out at some place for two days, why is that a problem? I think we are so used to this secure environment that we see threats everywhere now. She can be subjected to the act because in society, she’s already perceived as a potential threat, not because she’s poor but because she challenges the kind of lifestyle we all have. It’s the idea that we’re free that challenges people.
Read Fahri Azzat's posts on www.loyarburok.com.