Malaysia’s Abolish Detention Without Trial Day, 27 October, recalls the draconian Operation Lalang crackdown on 27 October 1987 that saw about 106 persons arrested and detained under a law that allowed for detention without trial law, the Internal Security Act 1960.
Of the 106, there were human rights defenders, including women rights defenders, politicians and academics.
The Ministry of Home Affairs also withdrew the printing and publishing licences of the Star, Sin Chew Jit Poh and Watan, which were restored almost five months later on about 22 March 1988.
The victims then included politicians like Lim Kit Siang, Lim Guan Eng and the late P Patto and Karpal Singh (DAP), Mohamad Sabu and Khalid Samad (Amanah), and Ibrahim Ali (Putra). Anwar Ibrahim, the PKR leader, was also twice a victim of the ISA in 1974 and again in 1998.
What is disappointing is that many of these, who today are still party leaders, seem to have abandoned their and their party’s commitment to abolish laws that allow for detention without trial.
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How many Malaysian political parties are for the abolition of laws that allow detention without trial? This must be made clear in general election manifestos of the various parties and coalitions.
Malaysians Against Death Penalty and Torture (Madpet) reiterates the call for the abolition of all laws that allow for detention without trial. All persons who are suspected of committing a crime shall be accorded the right to a fair trial, the ability to defend themselves and, most importantly, the presumption of innocence until proven guilty must always apply.
Vote for those who will abolish detention without trial
All political parties and other independent candidates contesting in the upcoming general election must make clear a clear commitment to abolish laws that allow for detention without trial.
Madpet calls on Malaysian voters to not vote for parties or candidates who want to retain laws that allow for detention without trial – which is a violation of the right to a fair trial and the presumption of innocence until proven guilty.
Right of redress removed
One draconian feature of Malaysian laws that allow detention without trial is that those arrested, detained or restricted under these laws have no right in law to challenge the reasons used by the police and the executive.
The Malaysian courts also do not have the right to review the reasons used, and this is unacceptable.
Section 15(1) of the amendment Prevention of Crimes Act 1949 (Poca) 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.
Hence, there is no right to question the reason the law used – just whether procedure was complied with.
The meaning of judicial review included:
(a) an application for any of the prerogative orders of mandamus, prohibition and certiorari;
(b) an application for a declaration or an injunction;
(ba) a writ of habeas corpus; and
(c) any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act.
This means that even an innocent person arrested, detained or restricted cannot even later sue to be compensated for wrongful arrest, detention or restrictions to his freedoms.
This is also a violation of Article 5(2) of the Federal Constitution:
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.
Laws that allow for detention without trial deny people this constitutional right when we cannot ask the court to review the reasons used for the detention or restrictions.
Similar provisions appear in other laws that allow for detention without trial – which means that the administration (the executive), without fear of judicial oversight or intervention, can do as it pleases against anyone in Malaysia. This is what makes such laws draconian and [why they] ought to be abolished.
Remember, the detention can be for a maximum period of two years, with the ability to extend the period indefinitely, two years at a time. Same too with the ‘restrictions’ [under laws that allow for detention without trial] after release from detention. These could include even restrictions against meeting certain people, against leaving home after some time or against leaving a certain area, and maybe against being able to contest in elections.
Whilst at present, we may not have prominent personalities under these laws that allow for detention without trial, many in Malaysia may have been victimised by these laws or are still being victims of these laws, whether through detention or through restrictions.
Sad state of affairs
It is a sad state of affairs that even political parties seem not concerned about the victims of these draconian laws that allow for detention without trial, unless one of their leaders or members become victim of these laws.
They should really be concerned about all victims, who also are denied the right to a fair trial – and more so even the right to be compensated for the wrongdoings of the authorities.
Now the police, the administration (including the minister or the board) or the executive can simply arrest, detain and restrict anyone, even for some ‘fake’ reason.
Without judicial review, the courts are barred from even determining whether the reason is justified, true or totally false – hence the much-needed checks and balances in a democracy are excluded when laws that allow for detention without trial are used. It means the police, the minister and the executive can do as they please, and there will be no remedy for the victims of these government wrongdoings.
The police, the minister or the government can even arrest, detain and restrict a person, it believes may be suspected of having an affair [with the wife of someone in power] or for some other ‘personal reasons’ using existing laws that allow for detention without trial, with some possibly fake reason that cannot be exposed or challenged in court.
Persons who commit murder or other crimes, where the law provides sentences on conviction, can also escape conviction and sentencing under the law. They can now be arrested under laws that allow detention without trial – and [may even] walk free a few years later – and it makes people angry [if] such criminals ‘escape’ punishment provided by law.
A murderer, if tried and convicted, will be sentenced to death, and one wonders how many were not investigated, charged, tried and sentenced, when the police or the state decided to opt to instead use laws that allow for detention without trial.
There is also the possibility of use of such laws to protect criminals from prosecution, trials, conviction and sentences provided by the law. Such laws could also be used against potential witnesses of crimes committed by politicians and others.
Malaysia, under the then Barisan Nasional government, repealed the Internal Security Act 1960 (ISA) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, but then brought in a wider scope of detention without trial through the amended Poca and a new law that allowed for detention without trial, the Prevention of Terrorism Act 2015.
Previously laws that allowed for detention without trial were generally confined to matters of national security and arms-related gang activities. But today, [the scope] has expanded: for example, for Poca today, one new stated category is:
- 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.
So if any crime committed by two or more persons, including corruption, murder, theft, rape, kidnaping or abuse of powers, a law that allows detention without trial can be used.
The government must disclose the number of persons detained under such laws: those under detention and those under restrictions and for what government-suspected reason. How many persons suspected of criminal conspiracy, corruption, murder, sexual offences, theft and the other offences are under laws that allow for detention without trial?
Suspicion or belief in guilt by the police, the minister or the different boards [provided for under laws that allow for detention without trial] is irrelevant as far as criminal offences are concerned. What is important, at the end of the day, is that the courts are convinced of the alleged guilt of any criminal.
Hence, the continued use of laws that allow for detention without trial to avoid requirements under the rule of law requirements and [to avoid] the right to a fair trial indicates bad government.
How many are now under detention? How many are under restriction orders? [Are their detentions or restrictions] justified, or [are they] simply an abuse of power where the innocent may end up victims with no right of redress?
Malaysians Against Death Penalty and Torture (Madpet] calls on the Malaysian voter to reject candidates and political parties during the upcoming general election that do not commit to the abolition of laws that allow for detention without trial, in favour of restoring the rule of law, the right to a fair trial for all, and of adhering to the presumption of innocence until a person is tried and convicted in court.
Madept calls on political parties, coalitions and candidates contesting in the upcoming general election to clearly state their position on laws that allow for detention without trial, which will also be a declaration of the principles and values they are committed to.
Madpet reiterates our call for the immediate repeal of all laws that allow for detention without trial, including Poca, the Prevention of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985. If [suspects] are truly guilty, then they will be found guilty, convicted and sentenced by the Malaysian courts according to the law.
Madpet also calls for the immediate and unconditional release of all persons currently detained or restricted under laws that allow for detention without trial in Malaysia.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)