Home Civil Society Voices Flawed Penal Code section must not be used pending repeal

Flawed Penal Code section must not be used pending repeal

Source: Charles Hector

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We, the 15 undersigned civil society organisations and groups, call for the immediate release of Siti Noor Aishah Atam, who has been found guilty under Section 130JB, and was sentenced to five years’ imprisonment from the date of arrest on 22 March 2016 because the offence, pursuant to section 130 JB(1)(a) of the Penal Code, is not only unjust but also seriously flawed.

Among others, the lack of mens rea (intention) in this offence, which was supposed to result in a subsequent amendment that will remedy this flaw, is yet to be done.

Secondly, the making of possession of books, not even banned by Malaysia, as being “items associated with any terrorist group or the commission of a terrorist act” – and such a crime – is grossly unjust.

Siti Noor Aishah Atam was first arrested around 22 March 2016 for possession of 12 books associated with terrorism, and the Security Offences (Special Measures) Act 2012 (Sosma) was used, making bail unavailable, and she remained in detention.

She was then charged and tried by the Kuala Lumpur High Court, which acquitted her at the close of the prosecution’s case, without even her defence being called, on 29 September 2016.

The prosecution then applied to the High Court to be able to continue to detain her pending the filing of the appeal to the Court of Appeal, and the court rejected the application ordering that she be set free.

But on 29 September 2016, after being set free by the Kuala Lumpur High Court, she was re-arrested under the Prevention of Crime Act (Poca) for allegedly importing IS flags into the country, which was totally different from the charge levied against her, which was being in possession of 12 books. To date, she has not yet been charged in court about the alleged importing of IS flags, which raises the question whether the reason used to continue to detain her was even true.

After the Court of Appeal allowed the prosecution’s appeal on 27 March 2017 and sent the case back to the High Court for continuation of the trial, she continued to be in detention under Sosma.

The High Court then on around 26 April 2017 found her guilty and sentenced her to five years in prison from the date of her arrest. It was reported that some of these books were still not banned (FMT News, 26 April 2017).

Her case is now on appeal before the Court of Appeal.

Sosma, just like the Essential (Security Cases) (Amendment) Regulations 1975, is very wrong as it allows for the side-stepping of the rules of practice and procedure for a fair trial – as set out in the Criminal Procedure Code, the requirements and standards in the Evidence Act, and other relevant laws.

In Siti Noor Aishah Atam’s case, Sosma was used to admit evidence which would not be admissible under the Evidence Act and the Criminal Procedure Code in normal trials. It must be understood that laws that stipulate what evidence can or cannot be admitted are to ensure no miscarriage of justice. Such ignoring of the standards and requirements – in the Evidence Act, Criminal Procedure Code and other relevant laws – that have been put in place to ensure a fair trial is very wrong.

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One bit of evidence admitted was that Siti Noor Aishah Atam allegedly told the arresting officer that the books, among other items, belonged to her. There were not even witnesses to this alleged conversation. There was also no subsequent statement or records that such a statement was ever made to the arresting officer. However, when Sosma is used, such normally unacceptable and questionable evidence was accepted as proof that all the things in the room, including the 12 books, belonged to Siti Noor Aishah Atam.

Bound by the decision of the Court of Appeal, the High Court continued the trial and asked Siti Noor Aishah Atam to present her defence.

Section 120JB defective – does not contain mens rea (intention) element

It was revealed in the High Court judgment dated 26 April 2017, that there was a defect in section 130JB of the Penal Code. This particular section, unlike the other offences in the new Chapter VI, starting with Section 130D, 130E, 130F, 130FA, 130FB, 130G, 130H, 130I, 130J, 130JA, 130JC, 130JD, 130K, 130M, 130N, 130O, 130P, 130Q, 130R and130S, had words like “knowing”, “intentionally” and/or “having reason to believe”, which clearly provided for the need of the mens rea (intention) element.

The High Court in its judgment, also referred to the Hansard (record of parliamentary debate), and it was revealed that this defect was brought to the notice of the minister, who apparently acknowledged the inadequacy and said that he would do what was necessary  with regard the missing mens rea (intention) element.

He said he could do it now, but he gave an assurance that he would raise this matter first with the attorney general before any possible subsequent amendment. The indication was that the amendment would be done at a later time after the law, as it stood then, was passed. But until now, there was no amendment to the section 130JB offence, for which Siti Noor Aishah Atam was charged, tried and convicted.

There has also been no reported news on this expected amendment, and we hope that an amendment will come soon, adding at the very least, the intention element of the said crime.

A part of the relevant extract from the Hansard that was quoted in the High Court judgment dated 26 April 2017 in the Malay language, was as follows:-

“…Saya mendengar hujah daripada Ahli-ahli Yang Berhormat berhubung dengan satu seksyen yang banyak dibangkitkan iaitu Seksyen 130JB(1) iaitu seksyen yang berhubung dengan possession of item. Saya sendiri pun mempunyai kecurigaanjuga, Yang Berhormat. Saya memahami apa yang Yang Berhormat sebut berhubung dengan possession ini dan Yang Berhormat sebut juga, itu yang asas sekali dalam sudut undang-undang, actus reus dan mens rea itu, ia tidak ada soalan mens rea proof. Asalkan ia mempunyai atau ada benda-benda macam itu, kalau dilihat secara literal undang-undang ini, boleh dihukum dan boleh dibawa ke mahkamah…………. Yang Berhormat, oleh kerana saya juga peka dengan proses pemindaan Yang Berhormat. Kalau saya boleh buat sekarang pindaan itu, saya boleh ubah. Masuk apa yang disebut oleh itu tadi supaya soalan mens rea itu akan dimasukkan dalam seksyen 130JB ini. Akan tetapi saya beri assurance satulah sebagaimana yang dipinta oleh Yang Berhormat Shah Alam, saya akan bincang dengan AG selepas kelulusan itu nanti untuk kita membincangkan soal pindaan kepada 130JB ini…………”

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Section 130JB – vague and can lead to injustice

Section 130JB, as it is now, is as follows:

Section 130JB Possession, etc. of items associated with terrorist groups or terrorists

(1) Whoever –

(a) Has possession, custody or control of; or
(b) Provides, displays, distributes or sells,

Any items associated with any terrorist group or the commission of a terrorist act shall be punished for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item

‘‘items associated with any terrorist group or the commission of a terrorist act’?

The second concern is whether books and articles should even be considered “items associated with any terrorist group or the commission of a terrorist act”. Well, naturally firearms, explosive devices and items that can be used to build bombs would be ‘items’ but the question is whether books, articles and other literary material that mentions or discusses ‘terrorist groups’ and/or ‘terrorist acts’ should be included.

In the fight against terrorism, it must be the responsibility of all persons, and as such knowledge of the motivations and ideology of those who resort to such violence is essential for everyone if we want to assist in the combating of such thinking.

How can we argue or debate against such thinking, if we ourselves are ignorant of the subject matter. Hence, the act of a person reading or in possession of such literature must never be criminalised, as is now happening with section 130JB Penal Code.

However, if such books and literature are proven to be used for the purpose of recruiting others into terrorist groups or committing violent acts, then it may be made into a criminal offence. It must be pointed out that incitement and/or preparation to commit an offence is already a crime in Malaysia, and as such, one need to consider whether there is really any need to have specific laws to deal with such a ‘terrorist act’ and/or ‘terrorism’.

‘associated with’?

Likewise, the words ‘associated with’ is rather vague. Would it also include books and material critical of or against the motivation and ideologies of terrorist groups or acts of terrorism?

In brief, the offence as it is set out in section 130JB today has just too many inadequacies, and it would be unjust to charge someone like Siti Noor Aishah Atam for the mere possession of books. Such laws can easily be abused or wrongly used by authorities against innocent people, and justice may not be done.

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In the case of Siti Noor Aishah Atam, one most disturbing fact was the fact that these books were not even banned by the government of Malaysia at the material time. In fact, it was revealed that some of the books were obtained from a local distributor and are available for purchase in Malaysia.

We have not seen any news about action taken against this distributor or sellers. We have also seen no action by the Malaysian government to even try and trace and recover all the said titles from those who may unknowingly be in possession of them in Malaysia. Will they all also be one day arrested and charged under section 130JB of the Penal Code?

Siti Noor Aishah Atam may be guilty of many other offences, but what matters here is whether she is guilty of the offence that she is currently being charged with – the possession of these 12 books.

For other offences, she must be charged and tried. It is wrong and most unjust to convict and sentence a person for things that she may or may not have done that are different from the current charges, just because we, the police or the government think that someone is a ‘bad’ person. The right to a fair trial must be respected.

Hence, we call for:

  • the immediate repeal and/or removal of section 130JB of the Penal Code, which is not only too vague but also unjust by reason of not having a mens rea (intention) element for the offence;
  • that pending the repeal or deletion of section 130JB of the Penal Code, it not be used again – and certainly not for simply being in possession of books;
  • the immediate release of Siti Noor Aishah Atam and all those currently being detained, imprisoned or tried under section 130JB offence;
  • Sosma to be repealed and, pending repeal, to not be used to undermine the standards and requirements – as set out in the Evidence Act, Criminal Procedure Code and other relevant law – that have been put in place to ensure a fair trial;
  • the Malaysian judiciary to uphold the cause of justice without fear or favour;

Charles Hector
For and on behalf of 15 groups as listed below:

Centre for Prisoners’ Rights Japan
Christian Development Alternative (CDA), Bangladesh
Dutch League for Human Rights
Japan Innocence and Death Research Centre
Kuala Lumpur and Selangor Chinese Assembly Hall – Civil Rights Committee
Malaysians Against Death Penalty and Torture (Madpet)
Malaysian Physicians for Social Responsibility (MPSR)
North South Initiative
Rescue Alternatives Liberia (RAL)
Saya Anak Bangsa Malaysia (SABM)
Teoh Beng Hock Trust for Democracy
Women’s Criminal Justice Network
Workers Hub For Change (WH4C)
Association of Human Rights Defenders and Promoters (HRDP, Myanmar)

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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