Abolish detention without trial now, release all detainees – NGOs

Today, 27 October, marks the Malaysian Day for the Abolition of Detention Without Trial Laws.

On 27 October 1987 during Operation Lalang, about 106 people were arrested and detailed without trial under the then Internal Security Act 1960.

They included human rights defenders, women activists, politicians, workers’ rights activists and religious.

This happened under the prime ministership of Dr Mahathir Mohamad.

The next major crackdown using the ISA was against those in the Arqam movement in 1994. Ashaari Muhammad, the founder-leader of the Malaysian Islamic group Al-Arqam, along with several other members of the group, was arrested in Thailand and subsequently returned to Malaysia, where he was detained and restricted under the ISA.

Ashaari remained a victim of the ISA from 1994 to 2004. In the latter part, he was said to have been restricted to Labuan.

Detention without trial laws

Besides allowing those held to be detained in detention centres, the laws allowing detention without trial also provided for the imposition of “restrictions and conditions … where the victim shall …

(a) he shall be required to reside within the limits of any State, district, mukim, town or village specified in the order;

(b) he shall not be permitted to transfer his residence to any other State, district, mukim, town or village, as the case may be, without the written authority of the Board;

(c) except so far as may be otherwise provided by the order, he shall not leave the State, district, mukim, town or village within which he resides without the written authority of the Chief Police Officer of the State concerned;

(d) he shall at all times keep the Officer in Charge of the Police District in which he resides notified of the house or place in which he resides;

(e) he shall be liable, at such time or times as may be specified in the order, to present himself at the nearest police station;

(f) he shall remain within doors, or within such area as may be defined in the order, between such hours as may be specified in the order, unless he obtains special permission to the contrary from the Officer in Charge of the Police District;

(g) except so far as may be otherwise provided by the order, he shall not be permitted to enter any State, district, mukim, town or village specified in the order;

(h) he shall use only equipment and facilities of communication which are declared to and approved by the Chief Police Officer of any State concerned;

(i) except so far as may be otherwise provided by the order, he shall not access the internet;

(j) he shall keep the peace and be of good behaviour;

(k) he shall enter into a bond, with or without sureties as the Board may direct and in such amount as may be specified in the order, for his due compliance with the restrictions and conditions imposed on him by the order;

(l) he shall be attached with an electronic monitoring device.….”

Violations of restrictions or conditions

Now, if the persons so restricted violates any of the conditions or restriction, it is a criminal offence.

Section 13(5) of the Prevention of Terrorism Act 2015 (Pota) states that “(a)ny restricted person who fails to comply with any restriction or condition imposed on him under this section commits an offence and shall be punished with imprisonment for a term not exceeding ten years and not less than two years”.

Like detention orders, these restriction orders can be perpetually renewed, every two years.

Repealed but new laws enacted

On 31 July 2012, the ISA was repealed, when the Security Offences (Special Measures) Act 2012 (Sosma) came into force.

Sosma is not an act which allows detention without trial. Instead, all those arrested for committing any offence listed under Sosma have a right to trial.

A law can be repealed by a specific repealing law or through a provision in any other law. The latter happened with the ISA, as Section 32 of Sosma repealed the ISA.

Victims of the then ISA also included present Prime Minister Anwar Ibrahim and human rights defenders like Theresa Lim Chin Chin, Cecilia Ng, Chee Heng Leng, Irene Xavier, Kua Kia Soong, Harrison Ngau, Chandra Muzaffar, Br Anthony Rogers, Nasir Hashim, Mohamad Yunus and Meenakshi Raman.

Politician victims included Mohamad Sabu (now president of Amanah, a member of Pakatan Harapan), Lim Kit Siang, Lim Guan Eng (now chairman of the DAP, a member of PH), Tan Seng Giaw, P Patto and Karpal Singh.

Joshua Hilmy, whom Suhakam found to be a victim of enforced disappearance, was also an ISA victim during Operating Lalang.

The Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO), another law that allows detention without trial, came to an end when Malaysia finally put an end to the then three existing declarations of emergency.

With that, the emergency ended and set in motion a constitutional provision to also end, within six months, all laws passed under the powers given to the government to enact emergency–related legislation.

The six months period expired on 19 June 2012, ending the operation of the EO once and for all.

We recall the infamous EO Six – six activists from the socialist party PSM, including the then Sungai Siput MP Dr Jeyakumar Devaraj. They were released after a month and not charged with any crime.

Detention without trial returns

A new act that allows detention without trial, Pota, was then enacted.

The Prevention of Crimes Act 1949 (Poca), was amended several time from 2014 to turn it into a law that allows detention without trial, which is now even worse than the previous ISA.

The Dangerous Drugs (Special Preventive Measures) Act 1985 is the other law that allows detention without trial.

Rule of law

If a person is suspected of a crime, he or she is charged and accorded a fair trial and is presumed innocent until found guilty in court.

Article 10 of the Universal Declaration of Human Rights states:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11(1) states:

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.

Article 9 states:

No one shall be subjected to arbitrary arrest, detention or exile.

All the normal standards to prevent miscarriage of justice do not apply when it comes to these draconian laws that allow detention without trial

Unable to challenge in court

The victim cannot even go to court to challenge the reason he or she is arrested, detained or restricted.

The court’s jurisdiction to hear such cases is also ousted by law, and thus even the court cannot ensure that justice be done.

Note that Article 5(2) of the Federal Constitution states:

(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

Section 19 of Pota says:

There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.

The phrase “question on compliance with any procedural requirement” means whether the procedures have been followed or not, no court can look to see whether the reasons for the detention or restriction are justified or not. It means even a false reason can be used to detain or restrict victims of detention without trial.

Pota says that a “judicial review” includes proceedings instituted through:

(a) an application for any of the prerogative orders of mandamus, prohibition and certiorari;

(b) an application for a declaration or an injunction;

(c) a writ of habeas corpus; and

(d) any other suit, action or legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act

Uncertainty

In most crimes, the law provides for the sentence, and the courts, upon conviction, decide on the sentence, eg how many years in prison.

There is certainty as to the sentence, and the convicted criminal knows when he or she will be free.

However, under laws that allow detention without trial, how long you languish in detention or are subjected to restrictions is determined by the minister (or the relevant board).

in Malaysia, Loh Ming Liang of Johor experienced detention without trial for 16 years.

It is widely recognised that the longest-serving detainee under detention without trial was Chia Thye Poh of Singapore. He had been deprived of his personal liberty by the Singapore government for 32 years.

The victims of detention without trial are not criminals who have been proven guilty beyond reasonable doubt in court. Neither was it based on a lower standard of balance of probabilities. There is no trial, and they suffer ‘punishment’ for so long as the government desires.

They also presumably do not even have the right to apply for a pardon from the king or rulers – more so, since they are not convicted prisoners serving out a sentence.

Time for abolition

Prime Minister Anwar Ibrahim, at a session in the Bar Council after his acquittal and release by the Federal Court in the first sodomy case, said he opposed laws that allowed detention without trial.

He said that, while he was in Dr Mahathir Mohamad’s cabinet, he opposed the use of the ISA during Operation Lalang in 1987 and in the 1994 Arqam ISA operation. He said he informed the then prime minister about his opposition.

Many in the Pakatan Harapan-led government today have experienced the unjust laws that allow detention without trial laws. It is only reasonable that they now act speedily and abolish all the existing such laws.

We, the undersigned 10 groups, call for the immediate abolition of laws that allow detention without trial: Pota, Poca and the Dangerous Drugs (Special Preventive Measures) Act.

Anyone who commits a crime, should be accorded fair trial and, if convicted, be sentenced according to the law.

We call for the immediate and unconditional release of all those in detention under laws that allow detention without trial.

We also call for the removal of conditions or restrictions imposed on possibly thousands of people held under such laws.

Charles Hector issued this statement on behalf of the 10 groups below:

1. Aliran
2. Centre for Orang Asli Concerns (COAC)
3. Malaysians Against Death Penalty and Torture (Madpet)
4. North South Initiative (NSI)
5. Pergerakan Tenaga Akademik Malaysia (Gerak)
6. Workers Hub for Change (WH4C)
7. Sarawak Dayak Iban Association (Sadia)
8. Haiti Action Committee
9. Legal Action for Women, UK

• Global Women’s Strike

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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