In mid-2021, about 41.7% of those in Malaysian prisons had not yet been tried, convicted and sentenced, according to World Prison Brief, which obtains information from Malaysian government sources.
They are called pre-trial detainees or remand prisoners, and this means they are innocent, as stated in Article 11(1) of the Universal Declaration of Human Rights, which reads:
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
The Malaysian Prison Department disclosed on 3 February that Malaysian prisons are packed to overflowing. It said the number of inmates in prisons nationwide exceeds its current maximum capacity of 4,200 by 36%.
This rate is based on international regulations. “Measures to reduce congestion will continue with the cooperation of various agencies that will also focus on reducing the number of remand prisoners,” the department said in a statement.
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In October 2022 Prison Department director general Nordin Muhamad revealed there were 82,539 prison inmates. Of that number, 76,336 were in prison while 6,203 had been placed in community rehabilitation programmes.
Prison overcrowding would be resolved if the majority of these pre-trial or remand detainees are released on bail pending the end of trial. Most of these are the poor, who simply cannot afford bail.
Denial of bail for serious crimes like murder may be justifiable.
Statutory denial of bail by laws like for all Security Offences (Special Measures) Act (Sosma)-listed offences must also end.
Let judges decide on bail. [Those charged with] lesser offences not resulting in death or grievous bodily harm should be entitled to bail.
30,000 ‘innocent’ in prisons
If there are about 75,000 people in prison, that will mean about 40% (or 30,000) are inmates who have not yet been tried, convicted or sentenced.
Poverty is one of the key reasons why those not yet tried and found guilty are in prison. They simply cannot afford to post bail, as they have no acquaintance or family member who are rich enough and willing to place the bail sum, which could be thousands of ringgit, in court.
The surety who places the bail money simply would not be able to use this money until the trial is over. Many poor people simply cannot afford to post bail if it means they will not be able to have access to it even in times of need.
Consider the rich like Deputy Prime Minister Zahid Hamidi, who is out on RM2m bail while his criminal trial proceeds. But many among the poor simply cannot even raise the bail amount, let alone find sureties willing to post bail sums amounting to thousands of ringgit.
In Thailand, with the passing of the Justice Fund Act, BE 2558 (2015), legal assistance is now provided by the government and made available to low-income people so that they can have a proper legal defence in court and can be released immediately on bail while awaiting their trials to end.
Between 1 October 2021 and 31 March 2022, the fund has approved THB190m to help low-income people related to lawsuits against them … helped 1,425 people fight legal cases in court … also provided money to help 473 people offer financial guarantee for release on bail.
Malaysians Against Death Penalty and Torture (Madpet) calls on Malaysia to consider and set up a similar fund that will give the poor access to money that can be used for bail so that they no longer need to languish in prison until the court decides, after trial, whether they are guilty.
Expedite trials of 30,000 detainees
Remember that these are people who did not plead guilty and who demanded trial. If they are to be remanded until the end of their trial, these trials must be expedited and targeted to end within three months or sooner – noting that after trial, they may be found to be not guilty.
As it is, Malaysia still does not have a criminal compensation act that will compensate the innocent victims for the detention and suffering they endured until the court finds them not guilty.
When the innocent plead guilty…
It must be acknowledged that many innocent people, especially the poor, plead guilty so they can serve their sentence and move on with their life. The reason could be poverty and the fact that if they do not plead guilty, they would still end up as pre-trial or remand detainees in prison for an undefined period – for no one knows when their trial will proceed and end.
It is sad that many may be in prison for a term longer that the sentence that might be imposed if they had pleaded guilty fast. There is a loss of faith in the criminal administration of justice.
As trials are delayed, many innocent pre-trial or remand detainees in prison may still end up pleading guilty, because of delays in trial. They choose to abandon their quest for justice, which they had hoped to get from a fair trial.
The problem thus may be with the courts – the inadequacy of judges and courts to ensure speedy trial.
Madpet calls for an increase in the number of judges and courts so that we can speedily reduce the pre-trial or remand detainees in prison to at least fewer than 5% of total prison inmates.
Programmes to reduce the prison population in Malaysia to date seem to affect only the convicted serving their sentence, not the pre-trial or remand detainees in prison.
The initiatives implemented since 2008 – such as the parole system, compulsory attendance orders, resident reintegration programmes, licenced prisoner releases and community rehabilitation programmes could reduce overcrowding in prisons across the country – are really for the prisoners who are already convicted and serving their sentence.
Provide lawyers to all detainees
The Malaysian government did not provide legal aid for suspects and accused in criminal cases until about 2012, and thus the Malaysian Bar, with its own funds and lawyers, filled this gap.
Only since 2012, through the National Legal Aid Foundation scheme, did the government step in to provide financial payments for lawyers providing legal aid for criminal matters.
However, foreigners are generally still excluded, and they can only rely on the Malaysian Bar’s legal aid lawyers or lawyers who come in on their own to act pro-bono or with minimal fees.
Noting that many of the pre-trial or remand detainees in prison today are foreigners, Madpet calls on the Malaysian government to provide legal aid lawyers for all, as this will also help expedite and ensure a fair trial.
The major problem with the overcrowding in prisons is the large percentage of pre-trial or remand detainees, and Malaysia must urgently expedite trials and take steps to reduce the number of pre-trial or remand detainees.
Maybe the courts should review the bail amounts and conditions of all pre-trial or remand detainees, and the government should assist, even financially, to ensure that no innocent person languishes in prison before they are tried, convicted and sentenced.
After all, even Najib Razak, after conviction, was allowed out on bail, until the end of his final Federal Court appeal.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)
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