As the Malaysian government’s actions leading to the abolition of the mandatory death penalty and imprisonment for natural life are applauded, Malaysians Against Death Penalty and Torture (Madpet) calls for the immediate repeal of the even more draconian laws that permit detention without trial like the Prevention Of Crime Act 1959 (Poca), the Prevention Of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985.
As there is no trial, the victims of these laws that allow detention without trial will never ever be sentenced to death or natural life imprisonment for the crimes the government allege that they have committed.
These laws that allow detention without trial ignore the presumption of innocence until proven guilty after a fair trial, where accused persons have a right to defend themselves and the judge finally decides whether one is guilty or not.
Article 11 of the Universal Declaration of Human Rights states:
Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.
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Anyone, including the innocent, can be victims of any law that allows detention without trial, as these Malaysian laws do not even allow victims access to court to challenge the reasons used to justify their detention or restrictions.
Section 15B(1) of Poca (similar provisions are in all laws that allow detention without trial) states:
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.’
This means you cannot challenge or question the alleged reasons or justifications as to why you have been arrested, detained or restricted indefinitely by laws that allow detention without trial – only whether the proper procedure has been followed by the authorities.
Double punishment for crimes
Section 17 of Poca states:
Any registered person who is convicted of any offence committed after the date of the entry of his name on the Register under the provisions of any law specified in the Second Schedule shall be liable to imprisonment for a term of twice as long as the maximum term for which he would have been liable on conviction for that offence, and also to whipping.
This includes some offences under the Penal Code, the Societies Act and other laws.
Thus, for example, for the Section 323 Penal Code offence of “voluntarily causes hurt, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to two thousand ringgit or with both”, the person whose name has been registered under Poca will be facing the risk of double the sentence provided in law.
Noting the fact that persons registered under Poca have literally no way of challenging the reasons for the arrest, detention, restriction and even entry into the register, it is most unjust and in violation of the principle in Article 8(1) of the Federal Constitution which states:
(1) All persons are equal before the law and entitled to the equal protection of the law.
On conviction of a crime, everyone should be sentenced in accordance to the sentence provided in law for that crime. To be liable to higher or double sentence is simply unjust.
Such laws must go
Even though, for some time now since the abolition of the infamous Internal Security Act, no prominent persons like Karpal Singh, Anwar Ibrahim, Mohamad Sabu, Hadi Awang, Irene Xavier or Theresa Lim Chin Chin have been arrested, detained or restricted under laws that allow detention without trial, many other continue to be victims of such laws, and we cannot ignore the need to speedily repeal all such laws.
In March 2022 a member of the Crime Prevention Board (LPJ) under the Ministry of Home Affairs revealed that from April 2014 until 10 March 2022, action has been taken against 10,012 individuals using Poca. A total of 2,673 individuals were placed under detention orders, another 6,537 individuals under surveillance orders, and another 802 individuals were released. As of 28 February 2022, 425 individuals were still placed under detention orders while another 2,166 individuals were still under surveillance orders.
He also reportedly said:
… based on the 2021 statistics, a total of 1,190 people had action taken against them under Poca compared with 1,968 in 2020 in several areas including Simpang Renggam, Pokok Sena, Bentong and Bintulu. He said most of the cases involved drug-related crimes and criminal fraud through the internet.
In March 2023 a media report stated:
On Poca, [Home Minister] Saifuddin [Nasution Ismail] said that 132 individuals were detained, of which 67 were Malays, 13 Chinese, 38 Indians, 13 of other races and one foreigner. He said those detained were between 19 and 59 years old.
Poca, which was originally for violent crimes committed by triads and gangs, has since been amended, and it can be applied broadly even for all Penal Code offences suspected to be committed by more than one.
Easier than proving guilt?
In the recently disclosed 2019 royal commission of inquiry report on the discovery of transit camps and graves at Wang Kelian, which confirmed the deaths of about 114 persons, it was stated that before 2015, the police did not bring many cases to court for human trafficking prosecution, as Poca was used to take action against them.
This is possible as Poca now is so broad and can be used for a variety of crimes.
Hence, laws that allow detention without trial can even be used to ‘protect’ even criminals and to deny victims of crime closure, and even the possibility of their being compensated by convicted criminals.
How many murderers who were detained under laws that allow detention without trial – who if charged and convicted in court would face the death penalty – which now allow them to walk free after being detained for a couple of years?
Have the laws that allow detention without trial caused law enforcement to get lazy, as they do not have to thoroughly investigate to be able to convince the court of the guilt of the accused if they elect to use Poca and other laws that allow detention without trial?
Are there cases where bribes were involved to get law enforcement to use detention without trial, rather than go for a fair trial, where there may be a risk of other truths being revealed during the trial and the possibility of higher sentences for the guilty?
The guilt of any criminal must be proven in court, and only the courts must have the power to punish through the sentences provided for the respective crimes in Malaysia.
Extrajudicial punishment imposed by the administration or any other administrative boards must end. Only the courts and judges determine guilt, and should be the only ones allowed to impose a punishment on a person convicted of a crime.
Noting that the next session of the Malaysian Parliament will be from 22 May to 15 June, Madpet calls on the Malaysian government to table the bills that will lead to the abolition of laws that allow detention without trial laws. The session after that will be in October, which is a long way to go.
Madpet reiterates the call for a speedy repeal of Security Offences (Special Measures9 Act (Sosma), the Sedition Act, the Societies Act and all other draconian laws.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture
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