Malaysians Against Death Penalty and Torture (Madpet) is shocked with the announcement that the government is lifting the moratorium of the use of draconian laws like the Sedition Act 1948, Section 233 of the Communications and Multimedia Act 1998, the Security Offences (Special Measures) Act 2012 (Sosma), the Prevention of Terrorism Act (Pota) and the Prevention of Crime Act 1959 (Poca).
Among the Pakatan Harapan election promises was the abolition of these draconian laws, and in October 2018, the announcement of the cabinet decision to impose a moratorium on the application of these laws pending abolition/amendment was hopeful. We hoped we would finally be rid of the bad laws but now the government backtracks and says it will use these laws.
Communications and Multimedia Minister Gobind Singh Deo was reported as saying, “The use of this act (in the moratorium) will continue for now. The proposed amendments are still in process, and will be announced when the government is ready to formulate a new policy”(New Straits Times, 3 December 2018).
Administrative power to detain people without judicial oversight is unjust
To prevent police and government abuse of power, the law provides that a person arrested shall be brought before a magistrate for a remand application, if the police need to detain a suspect for more than 24 hours.
During this application, the magistrate will consider the police’s reasons, and the suspect’s arguments (and his or her lawyer’s) and then decide justly whether to refuse the police application or to grant the remand application.
If the remand application is granted, the magistrate will grant a remand order for a fixed number of days. After the expiry of this remand period, the police can come again and apply for a further remand but the maximum shall generally not be more than 14 days from the date of arrest.
If Sosma, Poca and Pota are used, the police, enforcement agencies or the government will be able to avoid the checks and balances provided by the magistrate to prevent abuse of powers and a miscarriage of justice by brought about by the prolonged and unnecessary detention of suspects.
If Sosma is used, there is no more the requirement for the police to bring the arrested ‘suspect’ before the magistrate within 24 hours. The police can simply continue to detain the suspect for up to 28 days.
If Poca and Pota are relied on, the need to produce the suspect before a magistrate within 24 hours is still there. But if Poca is going to be used, they can get a remand order for 21 days.
The magistrate’s ability to evaluate the reasonableness of further remand and for how long is completely removed by the police using Sosma, Poca or Pota.
Depriving the innocent of employment and income is wrong
For workers, this prolonged detention in remand means possible loss of employment. Workers may have to use their limited annual leave, and when that is over, some employers may allow for unpaid leave but others may simply dismiss the worker.
For the self-employed or in small business, this detention results in a loss of income, which will seriously have an impact on the wellbeing of their families and dependents, even children.
Malaysia still does not have a criminal compensation scheme that would compensate detention of the innocent ie those who ultimately are not charged in court or not found guilty after a fair trial.
Denied fair trial and subjected to administrative detention or restrictions
Laws that allow detention without trial like Poca and Pota are even more unjust – as the reasons used for the detention or restrictions imposed still cannot be challenged in court.
It is most disappointing that the new Pakatan Harapan government, which has so many leaders who had in the past personally been victims or who had family members being victims of such draconian laws that allow detention without trial, today taking the position that these laws can be still used.
The government should have immediately released all in detention or had restrictions under laws that allow detention without trial – but sadly, it has been silent. Repealing such laws was a promise but then we have heard little about this.
Sufficient laws available without having to resort to draconian unjust laws
Following the incident at a temple in Selangor, which saw many arrests, the government seemed to have abandoned its principles and appears more open to the use of those very same bad laws that they wanted to get rid of.
There are sufficient laws available in Malaysia, and as such there is really no need to resort to these draconian laws, which we all know are unjust and ought to be speedily repealed.
Madpet is disappointed with the procrastination of the government in repealing these bad laws and provisions in law. The principle that no one should be presumed guilty until they have been tried and convicted after a fair trial is something the government must never forget and always practice.
Madpet urges the Malaysian government to be strong and committed to justice and re-impose the moratorium on the use of these draconian laws including the Sedition Act 1948, Sections 263, 233 and other such vague provisions of the Communications and Multimedia Act 1998, Sosma, Pota and Poca.
Madpet calls on the government to immediately repeal all bad draconian laws, given that seven months have passed since the new government came into being.
Madpet calls on the attorney general to expedite the preparation of the required bills for the repeal of draconian laws and to advise the prime minister and the cabinet to not backtrack or use these bad laws pending repeal.
Madpet calls for the immediate and unconditional release of all those still being detained or restricted under laws that allow detention without trial.
Madpet urges the government to not use Sosma or laws that allow detention without trial which oust the ability and powers of the magistrate and courts to effectively ensure that the police or the government do not abuse their powers, especially in the detention of mere suspects, not even accused indviduals, for long durations.
Madpet urges the government to demonstrate care for families especially children, whose parents suffer the risk of loss of employment or income due to long periods of detention. The government should ensure suspects in prolonged detention do not lose their employment and possibly ensure that they be fully paid by employers during such police or government detention.
Madpet urges the government to enact a law that provides for compensation for loss of liberty for those have been detained but not charged or convicted. It is wrong to deny an innocent person their liberty and means of earning and not compensate them.
Madpet urges the government to adhere to its promises to uphold the cause of justice, human rights and the rule of law.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).