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Preventive detention will bring back shadow criminal justice system

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We cannot allow detention without trial to return, asserts Josef Benedict.

Home Minister Zahid Hamidi - Photograph: Wikipedia
Home Minister Zahid Hamidi – Photograph: Wikipedia

Over the last month there have been persistent calls by the authorities, including from the Home Minister and the Inspector General of Police, to bring back preventive detention laws.

They argue that the recent spate of crimes is related to the fact that detainees who were previously detained under the Emergency Ordinance (EO) have been released back to society. They claim these were “hardcore criminals” (even though many of them have never been charged with a crime) and some kind of preventive law is needed to strike fear in them.

A new bill to tackle serious crime is reportedly to be tabled in Parliament in September 2013, which is said to incorporate an element of detention without trial.

Many, especially civil society activists, have countered the need for such extra-judicial police powers. They have argued that there are adequate laws in Malaysia to deal with serious crimes and what is required is effective use of investigative policing.

Many have raised concerns that preventive detention would exclude the right to due process of the law and access to the courts, which are fundamental rights enshrined in international human rights law and standards as well as the Malaysian Constitution.

Less, however, has been said about human rights violations that occurred for years under the EO and the ongoing impunity for those who committed these violations.

Thousands of people deemed to “threaten public order” were detained under preventive detention laws such as the EO. Suspects were held for years without charge or trial and their detention renewed indefinitely. Not only were they presumed guilty by the government, but they were often tried and convicted by the media.

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EO arrests were shrouded in secrecy. During the initial 60-day period of detention, suspects were given vague grounds for their detention. Typically, they were denied access to counsel and had no contact with family members. Indeed, family members of many detainees were not told where their relatives were being held or even that they were arrested at all.

When police failed to collect evidence after successive remand orders, in different jurisdictions, under the Criminal Procedure Code, they would often seek an EO order to detain the suspect for an additional 60 days. Moreover, there were reports that EO detainees were often beaten or otherwise physically mistreated by police seeking to extract confessions. Some were later found dead in detention.

For example, in 2005, police sought four successive remand orders against eighteen-year-old S Hendry, for alleged involvement in two murder cases and an armed robbery. He was never charged in any of the cases. At the end of 29 days of remand, when they failed to find evidence against him, the police detained him under the EO. On 18 November, S Hendry was transferred to the Simpang Renggam detention centre from the Kajang police lock-up. S Hendry’s dead body was later discovered, hanging from the ceiling in his cell, by prison officials on 19 November 2005. No one has been brought to justice for his death.

Further, the EO allowed the minister of internal security to “control” the movement of persons. Under the EO, anyone suspected of acting in a manner prejudicial to public order could be issued a two-year restricted residence order by the minister. EO detainees have described how they were ordered to live in remote parts of Malaysia, dropped off by the police, and given no assistance in finding a job or housing or any initial monetary allowance.

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From the above anecdotal evidence, it is clear that the Emergency Ordinance which was enacted in 1969 as a temporary measure to respond to race riots later became part of a shadow criminal justice system. It allowed for the arbitrary detention of persons without the government having to prove any charges against them. It also led to a range of human rights violations including arbitrary detention, denial of the right of those detained to have access to their families and legal counsel, denial of the right to freedom of movement, violation of the presumption of innocence and denial of the right to a prompt and fair trial.

One of the key recommendations of the government’s own 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police was for the EO to be repealed because “it has outlived its purpose and in some instances facilitated the abuse of some fundamental liberties”.

Therefore we cannot allow such an abusive law to return. It is imperative that we as citizens remind our elected representatives that laws and policies used to address crime must respect the rule of law and fundamental human rights. If not, it only exacerbates the culture of impunity within the police force and opens the door to further abuses within the criminal justice system.

Josef Benedict, an Aliran member, does research and campaigning on human rights issues.

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