Malaysians Against Death Penalty and Torture (Madpet) is most concerned that GISB Holdings Sdn Bhd (GISB), a company, has now been considered an “organised criminal group” by Malaysia.
We believe that it is best and reasonable that “organised criminal groups” be limited to triads and criminal gangs that engage in serious crimes like violence, extortion and murder.
It is both wrong and dangerous to define it broadly as crimes committed by more than one of any Penal Code offences. Is GISB now an ‘organised criminal group’ in Malaysia?
On 23 October, GISB CEO Nasiruddin Mohd Ali, his wife and 20 others – 13 men and nine women – were charged at the Selayang Sessions Court under Section 130V(1) of the Penal Code, for being members of an organised crime gang.
Section 130V(1) reads:
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(1) Whoever is a member of an organized criminal group shall be punished with imprisonment for a term of not less than five years and not more than twenty years.
The Penal Code, in Section 130U, now says that an organised criminal group means a group of two or more people, acting in concert with the aim of committing one or more serious offences, in order to obtain, directly or indirectly, a material benefit, power or influence.
Serious offences were previously defined in law as any offence punishable with imprisonment for ten years or more. However, that definition was deleted by the Penal Code (Amendment) Act 2014, where the amending provision reads: “The Code is amended in Section 130U by deleting the definition of ‘serious offence’.”
Today, if anyone commits any crime with another person(s), he or she risks being charged as a member of an “organised crime gang” under Section 130V of the Penal Code.
Since Chapter VIB (on organised crime) of the Penal Code is listed as a security offence in the First Schedule of the Security Offences (Special Measures) Act 2012 (Sosma), then Sosma applies.
Thus, two or more people engaged in a consensual act of sodomy, theft, murder, illegal assembly or any crimes are at risk of being charged with organised criminal group crimes, and Sosma will apply.
The other crimes listed under Chapter VIB include assisting, harbouring, and consorting.
Madpet is unhappy with this situation, as the 2014 redefinition of the term organised criminal groups is just too broad and can easily be abused by the government.
This term should be restricted to triad groups, mafia-like groups and criminal gangs that commit serious criminal offences involving violence or extortion.
As of last year, 72 active criminal organisations that posed a significant threat to national security were operating in the country, according to a former director of the federal Criminal Investigation Department, Abd Jalil Hassan. (Sun, 9/12/2023)
Malaysia Crime Prevention Foundation (MCPF) senior vice-chairman Ayub Yaakob said criminal activities by gangs present a significant concern to communities. “Their activities encompass extortion, money laundering, drug trafficking, robberies and prostitution. Such criminal activities undermine community wellbeing and jeopardise public safety.”
Should the company GISB be considered a ‘criminal organisation’?
Independent body should decide
GISB, in our opinion, does not fall into this category. We need to look at the process of how a group is defined as an ‘organised crime gang’ in Malaysia. It certainly should not be done by the police alone, but possibly some independent body that would possibly include parliamentarians.
When any group is listed as an ‘organised crime gang’, their crimes will not only be Sosma offences, but they also risk becoming victims of laws that allow detention without trial laws like the Prevention of Crime Act 1959 (Poca).
The Prevention of Crime (Amendment of First and Second Schedule) Order 2014 made significant changes. It changed:
- Persons who belong to any group, body, gang or association of five or more persons who associate for purposes which include the commission of offences involving violence or extortion.
The new text substitutes “involving violence or extortion” with “under the Penal Code”.
Now, it reads:
- Persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code.
To prevent abuse and miscarriage of justice, Madpet calls for an independent body. This body would decide whether a particular group or groups of persons ought to be considered an organised crime gang or not. This is especially important after the 2014 amendments to the Penal Code and Poca diluted the definition of organised crime.
GISB – an ‘organised crime gang’?
People in Malaysia await the charging and trial of GISB members for the offences that led to the ‘crackdown. These include child abuse, child offences, and offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Act 2001 (AMLA Act) that justified the freezing of accounts.
Given the impression of a lengthy GISB investigation, the delay in prosecution and trial raises questions.
Abolish pre-conviction punishment
Sosma is a draconian law, under which Parliament ousted judicial functions to decide on bail. This means those charged with Sosma-listed offences will languish in detention until trial end. This creates grave injustice for those who ultimately are found not guilty.
This pre-conviction mandatory detention, a form of pre-conviction punishment of the still-presumed-innocent person, must be abolished.
Prosecution ready to start
The 22 were charged at the Sessions Court, but only the High Court has the jurisdiction to try any Sosma cases. They must therefore be immediately brought before the High Court and charged.
Their trial should be expedited and completed as soon as possible, as they are denied bail by law. It is disturbing that they have not yet been charged at the High Court. Oddly, the Sessions Court fixed a mention date on 23 December, and the question is why?
Justice Harun reminded us that the legal principle in Malaysia is that “a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice” [Public Prosecutor v Tan Kim San [1980].
This means that the prosecution is already ready to start the trial and prove a prima facie case against all 22. There is no reason to delay the trial. A delay will imply that the prosecution is not yet ready, which means the 22 have wrongly been charged, and this is unacceptable.
Expedite trials
Madpet calls for all criminal trials of those who are in detention pending conviction – who have been denied bail – to be expedited and finished quickly, preferably not later than six months from the date they have been charged.
If the prosecution charges anyone, the prosecutors must already be ready to proceed with trial.
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.
If there are about 75,000 people in Malaysian prisons, that would mean about 40% (or 30,000) are inmates who have not yet been tried, convicted or sentenced.
Unlike the 1MDB case, which led to legal actions being taken in many different countries, we do not see similar reaction in the many other countries where GIBS, its subsidiaries and related companies are currently operating.
As the GISB is also allegedly a case involving Islamic deviants, questions arise whether Muslim police or law enforcement officers are able to act independently when investigating non-religious crimes. Or would it better for those investigations to be led by non-Muslims to ensure a more professional investigation?
Religion and other prejudices are known to affect investigations and prosecution.
Madpet calls for a legal amendment to redefine strictly the meaning of a ‘organised criminal groups’ to restrict it to triad or criminal gangs that commit serious criminal offences involving violence or extortion.
Organised criminal groups, just like terrorist groups, must be determined and listed in law, preferably by an independent body, not just law enforcement agencies.
Madpet reiterates the call for the repeal of Sosma. In the interim period, Sosma should be amended to allow the courts to determine the question of bail. Now, Parliament has ousted the courts’ powers to determine bail.
Madpet calls for all criminal trials, where the accused are in pre-conviction detention – due to unavailability of bail or, inability to pay in advance the bail amount because of, say, poverty, or to provide the needed surety – to be expedited and completed as soon as possible and not later than six months.
This is crucial to prevent a gross miscarriage of justice, especially when courts find defendants not guilty after a trial. In Malaysia, no law provides compensation for those who had to unnecessarily languish in prison until the end of their trials.
In the case of the GISB 22, Madpet calls for them to be immediately charged in the High Court, for the trial to be speedily begun by the prosecution and for it to end within six months. We do not want the innocent to suffer ‘pre-conviction’ punishment.
“The police investigate, the judges deliver the sentence. Before a sentence is passed, suspects should not be punished beforehand,” Prime Minister Anwar Ibrahim said at the 25th Suhakam anniversary last month.
As things stand, pre-conviction detention is also pre-conviction punishment before the judges deliver their sentences.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture.
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