Thursday, November 30, 2017
PUTRAJAYA today caved in to public pressure and will return full discretion to judges to mete out the death sentence to drug traffickers.
Minister in the Prime Minister’s Department Azalina Othman Said said in a statement today the government will amend a controversial clause in the Dangerous Drugs Bill (Amendment) 2017.
“The government will carry out an amendment at the committee stage to Section 39B of Act 234 (Dangerous Drugs Act) to give full discretion to the judiciary,” she said.
The Dewan Rakyat secretary has been notified about the amendment to the bill, which is expected to be tabled for second reading tomorrow, she said.
A clause in the original bill, tabled last Thursday, gave unprecedented powers to public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities to disrupt drug distribution activities within or outside of Malaysia.
Judges could then decide whether to spare these convicts the mandatory death penalty.
However, the judges would have no choice but to mete out the mandatory death sentence to convicts without a written certificate from prosecutors.
Various parties, including the Malaysian Bar, opposition MPs and human rights group Malaysians Against Death Penalty and Torture, have criticised the controversial clause over the past week, saying that it interferes with the judges’ sentencing power.
Azalina said the decision to amend the bill was made after taking into account the views and suggestions of all stakeholders to the government.
“This amendment demonstrates the government’s openness, especially the prime minister who always listens to views from various parties to ensure every policy decision is made inclusively,” she said.
Attorney-General Mohamed Apandi Ali blamed the cabinet today for adding the caveat to give prosecutors the power to issue a written certification to convicted drug traffickers.
“My initial proposal was to give discretion to judges, that is, to pass a death sentence or otherwise. That was my principal advice.
“The certification (by public prosecutors) is another policy matter by the cabinet... I don’t have a say in it,” Malaysiakini reported him as saying. – November 29, 2017, Malaysian Insight
Malaysian Insight also carried MADPET's statement
A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.
Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was tabled in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law would allow the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking.
However, a clause states that the judge may impose a sentence other than the death penalty, only if and when the "public prosecutor certifies in writing to the court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia."
"It is wrong to give the public prosecutor the power to decide who dies and who may live," Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today.
"Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial."
According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.
Hector said the power of sentencing should rest with the judge alone.
"The existence of appeals to higher courts helps ensure that there be no errors."
Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence.
"Thus, the question of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounces sentence."
"Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing."
In a statement today also condemning the law amendment, Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such "unfettered and arbitrary power".
"It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death," he said.
By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an "unnecessary fetter" on their discretion and interferes with judicial independence and justice, Paulsen said.
As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.
Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017, Malaysian Insight.
MADPET's Full Statement - MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG
**Thereafter several human rights groups, including the Malaysian Bar, and even Opposition MPs raised concerns about the said Bill, being debated at the Dewan Rakyat(House of Representatives) in Malaysian Parliament.
Wednesday, November 29, 2017
Flawed Section 130JB Penal Code must not be used pending repeal Release Siti Noor Aishah Atam in prison for possession of unbanned books? (15 Groups)
Media Statement – 30/11/2017
Flawed Section 130JB Penal Code must not be used pending repeal
Release Siti Noor Aishah Atam in prison for possession of unbanned books?
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 5 years imprisonment from the date of arrest on 22/3/2016 because the said offence pursuant to section 130 JB(1)(a) Penal Code is not only unjust but is also seriously flawed. Amongst 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 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 on or about 22/3/2016 for the possession of 12 books associated with terrorism, and SOSMA( Security Offences (Special Measures) Act 2012) 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 prosecution case without even defence being called on 29/9/2016.
The prosecution did then apply 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 did rejected the application ordering that she be set free.
However, on 29/9/2016 , 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 a 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 27/3/2017, and send the case back to the High Court for continuation of the trial, she continued to be detention under SOSMA.
The High Court then on or about 26/4/2017 found her guilty, and sentenced her to 5 years in prison beginning from the date of her arrest. It was reported that some of these books were still not banned.(FMT News, 26/4/2017)
Her case is now on appeal before the Court of Appeal.
SOSMA ALLOWS INADMISSIBLE EVIDENCE TO BE USED
SOSMA, just like the Essential (Security Cases) (Amendment) Regulations 1975, allows the rules of practice and procedure set out in the Criminal Procedure Code, the requirements and standards in the Evidence Act, and other relevant law, that have been put in place to ensure a fair trial, is very wrong.
In Siti Noor Aishah Atam’s case, SOSMA was used to admit evidence which normally will 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 is to ensure no miscarriage of justice, and as such ignoring the standards and requirements in the Evidence Act, Criminal Procedure Code and other relevant law, that have been put in place to ensure a fair trial, is very wrong.
One such evidence admitted was that Siti Noor Aishah Atam allegedly told the arresting officer that the books, amongst others, 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 unaccepted and questionable evidence was accepted as proof that all the things into 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 130JB DEFECTIVE AS IT DO NOT CONTAIN THE MENS REA(INTENTION) ELEMENT
It was revealed in the High Court judgment dated 26/4/2017, that there was a defect in section 130JB Penal Code. This particular section, unlike the other offences in the new Chapter VI, starting with Section130D, 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 insdequacy, and said that he would do the needful with regard the missing mens rea(intention) element. He said he could do it now, but he gave the assurance that he will raise this matter first with the Attorney General before any possible subsequent amendment. The indication was that the amendment will be done at a later time after the law, as it stood then, was passed but until now, there was no amendment to the said 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 26/4/2017 in the Malay language is 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............"
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,
(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 could be used to build bombs would be ‘items’ but the question is whether books, articles and other literary material that mentions and/or discusses ‘terrorist groups’ and/or ‘terrorist acts’ should be included.
In the fight against terrorism, it really must be responsibility of all persons, and as such knowledge of the motivations and ideology of persons 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 is ignorant of the subject matter. Hence, the act of a person reading or in possession of such literature must never be criminalized, 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 maybe 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 even have specific laws to deal with ‘terrorist act’ and/or ‘terrorism’.
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.
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 said books were obtained from local distributor and are available for purchase in Malaysia. We have not seen any news about actions taken against this distributor and/or sellers. We have also seen no action by the Malaysian government to even try to trace and recover all the said titles, who may be in possession of many unknowing persons in Malaysia. Will they all also be one day arrested and charged under section 130JB 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 for – 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 is different from the current charges, just because we, the police or the government thinks that someone is a ‘bad’ person. The right to a fair trial must be respected.
Hence, we call for
a) The immediate repeal and/or removal of section 130JB of the Penal Code, which is not only too vague but is also unjust by reason of not having a mens rea(intention) element to the said offence;
b) 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;
c) The immediate release of Siti Noor Aishah Atam and all persons currently being detained, imprisoned and/or being tried for the section 130JB offence;
d) That SOSMA( Security Offences (Special Measures) Act 2012) be repealed, and pending repeal, it will not used to undermine the standards and requirements in the Evidence Act, Criminal Procedure Code and other relevant law, that have been put in place to ensure a fair trial;
e) That the Malaysian judiciary uphold the cause of justice without fear or favour;
For and on behalf of the 15 listed groups
Center for Prisoners' Rights Japan
Christian Development Alternative ( CDA), Bangladesh
Dutch League for Human Rights
Japan Innocence and Death Research Center
KL Selangor Chinese Assembly Hall - Civil Rights Committee
MADPET(Malaysians Against Death Penalty and Torture)
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
WH4C (Workers Hub For Change)
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Thursday, November 23, 2017
MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG
Media Statement – 24/11/2017
JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG
Dangerous Drugs (Amendment) Act 2017 Meant To Abolish Mandatory Death Penalty And Return Sentencing Discretion To Judges Has Too Many Flaws
MADPET(Malaysians Against Death Penalty and Torture) welcomes the fact that the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which has the mandatory death penalty, to now give judges discretion in sentencing, that will allow the imposition of life imprisonment instead of the death penalty has finally been tabled in Dewan Rakyat(House of Representatives). The said Bill, the Dangerous Drugs (Amendment) Act 2017, which has taken a long time, was finally tabled in Parliament on 23/11/2017 for the first reading.
SENTENCING DISCRETION TO JUDGES ONLY WHEN THE PUBLIC PROSECUTOR ALLOWS IT
MADPET is disappointed that discretion when it comes to sentencing those convicted for the offence drug trafficking (Section 39B) is not going to be given to judges in all cases. Judges will only get the discretion to impose a sentence other than the death penalty, only if and when the ‘Public Prosecutor certifies in writing to the Court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.’(Section 2(b) of the Amending Act)
Rightly, it must be Judges and the courts that consider and decide whether one has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’.
Before sentencing, judges will usually hear and consider submissions of both the prosecution and the convicted person, and then impose an appropriate sentence. Thus, the question, of whether there was assistance or not could be included as one of the listed matters that should be considered by the Judge before he decides and pronounce the sentence. Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide, and maybe should be a point to be considered before sentencing. There may be also other relevant considerations of safety of oneself and/or family as many of these drug kingpins may threaten to cause harm, and Malaysia may not yet be ready to provide the requisite protection to the accused family and loved ones.
It is wrong to give the Public Prosecutor the power to decide who dies and who may live. Remember, that he is also responsible for prosecution in a criminal trial, and the power to the Public Prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial.
Now, according to the proposed amending Act, if the Public Prosecutor does not provide this ‘certification’, judges would have no choice but to impose the death penalty. This mandatory requirement for such a ‘certification’ by the Public Prosecutor must be deleted.
NO REVIEW OF DISCRETION OF PUBLIC PROSECUTOR TO PROVIDE CERTIFICATION
Further, it is stated in the proposed amendments that, ‘The determination of whether or not any person has assisted an enforcement agency in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination done by him in good faith, in such capacity’.
Well, that suggests that no one may be able to question or challenge the correctness of the Public Prosecutor’s decision – not even the courts by way of Judicial Review. This invites the possibility of miscarriage of justice, because if there is no required ‘certification’ by the Public Prosecutor, then the said convict will be sentenced to death.
Judicial Review is an essential ‘check and balance’ especially in a Democracy. One should be able to move the court to review even the decisions of the Public Prosecutor. Further, as it is Public Prosecutor, who decides whether to prosecute or not, this issuance or issuance of this ‘certification’ maybe for the wrong reasons, possibly even to ensure that the prosecution wins the case.
The power and discretion when it comes to sentencing must always rest with Judges alone. The existence of appeals to higher courts, helps ensure that there be no errors.
800 OR MORE ALREADY CONVICTED ON DEATH ROW WILL STILL BE EXECUTED?
In March, Minister Azalina said that according to Prison Department statistics, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B) (Star, 24/3/2017). These would all be persons already convicted.
The new proposed amendments, however, will not help any of these persons, whose trial is over and they have been convicted and sentenced.
The proposed amendment, in Section 3(2) of the proposed Amending Act, states very clearly that new amendments, when it comes into force, will only be used for persons who ‘…has not been convicted under section 39B…’. This means that all 800 or more on death row for drug trafficking will still be executed, unless they are pardoned by the King and/or rulers.
As such, MADPET urges that the sentence of all 800 or more persons currently convicted and on death row be immediately commuted to imprisonment.
MANDATORY SENTENCES CONTINUE TO EXIST
Even with the amendment, there still will be mandatory sentences – Death(if the Public Prosecutor Does Not Certify), and when there is certification, then judges can impose either Death or Imprisonment for Life(plus whipping of not less than 15 strokes). There is no discretion given to judges to impose a lower prison term, but judges seem to have the discretion to order whipping of more than 15 strokes.
With regard persons being tried under Section 39B Drug Trafficking, we know that many of them may have had the drugs for various different reason, knowingly or unknowingly, and some maybe out of desperation because of poverty.
We know that section 37(da) Dangerous Drugs Act states that “…any person who is found in possession of-(i) 15 grammes or more in weight of heroin;(ii)… otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug.” This and other similar legal presumptions shift the burden of proof to the accused person, and it is most difficult for an accused person, more so if he/she is poor, to prove that the drugs found did not belong to him/her.
Should a ‘fool’ who made one mistake be sentenced to death or life in prison. A mandatory life sentence is also grossly unjust. Judges should be given real discretion even with regard to the length of imprisonment, and as such a mandatory life sentence also needs to be reviewed, and judges should have the discretion to impose lower sentence. There should be lower prison sentences for first time offenders, and higher for repeat offenders. We should be emphasizing rehabilitation rather than a ‘lock them up and throw away the key’ policy.
WHAT ABOUT OTHER MANDATORY DEATH PENALTY OFFENCES?
Malaysia have been studying the abolition of the death penalty, and to date we are only seeing action with regard the drug trafficking. There are so many other offences that provide for mandatory death penalty including crimes that do not result death and/or grievous hurt to victims.
Malaysia needs to speed up at least the abolition of the mandatory death penalty for all offences, and returning sentencing discretion to judges.
a) That discretion when it comes to sentencing should be with judges. The proposed pre-condition before a judge can exercise judicial discretion in sentencing, being the written certification by the Public Prosecutor that the convicted has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’ should be deleted. Such conditions are unacceptable;b) That the death sentence of the 800 or over persons on death row for drug trafficking(section 39B) be forthwith commuted to imprisonment;c) That Malaysia speed up its efforts towards the abolition of the death penalty, especially the mandatory death penalty for all offences;d) That Malaysia impose a moratorium on executions pending abolition of the death penalty.
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Thursday, November 16, 2017
Abolish POCA and detention without trial laws
LETTER | We, the 36 undersigned civil society organisations, trade unions and groups are perturbed to hear that 142 juveniles have been arrested under the Prevention of Crime Act (POCA), a law that allows the detention of people without trial as revealed by Deputy Prime Minister Ahmad Zahid Hamidi in a written Parliamentary reply.
We are shocked about the continued existence of detention without trial (DWT) laws in Malaysia, including the Prevention of Crimes Act 1959 (POCA), Prevention of Terrorism Act 2015 (POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 that allows for persons to be arrested, detained and/or restricted without the rights to challenge the reasons of their incarceration and/or restriction in court. The fundamental right to a fair trial is denied.
If 142 juveniles were victims of DWT laws, then one wonders whether thousands of individuals are currently detained/restricted under POCA and other DWT laws.
The fundamental problem with these DWT laws in Malaysia is that the victim cannot even challenge even the reasons for his arrest, detention and/or restriction in a court of law.
Without the ability to go for a judicial review challenging the reasons used for the detention/restriction, the judiciary is effectively barred from ensuring that the executive is not abusing its power and/or that no innocent person is being unjustly denied his constitutionally guaranteed rights and liberties.
DWT laws allow for an individual to be detained and/or restricted indefinitely according to the whims and fancies of the government, be it a minister or an appointed board.
A person who has been arrested, detained and/or restricted under these draconian laws are also denied their fundamental rights to a fair trial. The state could then also deny rights and liberties of the innocent. The principle that everyone should be presumed innocent until proven guilty in a court of law must be respected.
When Malaysia finally got rid of its infamous Internal Security Act 1960 (ISA) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, there was hope that all other laws that allow for DWT would also be repealed.
Amendments to POCA
However, the opposite happened and the ability of the state to continue using DWT laws were enhanced by the amendments of the Prevention of Crimes Act 1959 (POCA), and the introduction of the new Prevention of Terrorism Act 2012.
Further, an amendment to POCA came into effect in 2014 introduced a new Part IVA that allowed DWT as well.
The Board could now issue a ‘detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.’
Previously, when POCA was used, within 24 hours after arrest when the victim is brought before the Magistrate for a remand application, a statement in writing signed by a police officer not below the rank of assistant superintendent stating that there are grounds for believing that the name of that person should be entered on the register was required before a Magistrate granted a 14 day remand.
However, after April 2014, all that is required is a statement of a police officer of the rank of inspector. Rather than having greater safeguards against possible abuse, it was made easier by requiring just an inspector’s statement. The remand period was also extended to 21 days.
POCA was originally enacted to be used for organised crime members, triads or gangs involved in crimes involving ‘violence or extortion’ was amended to cover all offences in the Penal Code.
Originally it was to be used for gangs of 5 or more persons, but that was amended to 2 or more persons. That means that POCA can now be used for even a person who committed a crime with another, even if the crime was theft or some other lesser crime. The right to a fair trial could now be easily denied for many more persons.
The POCA amendment that came into force in May 2014 allowed for POCA to be used for an even wider range of persons including drug traffickers, and persons living on the proceeds of drug trafficking; human traffickers, and persons living on the proceeds of human trafficking; persons involved in unlawful gaming; smugglers of migrants, and persons living on proceeds of migrant smuggling; recruiters of members of gangs or persons who participated in some crime. A subsequent amendment in 2015 added ‘Persons who engage in the commission or support of terrorist acts under the Penal Code’.
An interesting amendment to POCA that came into effect on 1/9/2015 was section 4(2A) which stated that
“No person shall be arrested and detained under this section solely for his political belief or political activity. The new Section 4(5) goes on to explain "political belief or political activity" as meaning ‘engaging in a lawful activity through;
(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by
(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;
(b) the expression of an opinion directed towards any government in Malaysia; or
(c) the pursuit of a course of action directed towards any government in Malaysia.".
This may give the impression that POCA will not be used against politicians (and possibly civil society personalities) for actions directed against the government.
It, however, does not protect civil society or human rights defenders if their actions and/or expression of opinion are directed against some our perpetrator of injustice, and not being ‘any government’, or if they are alleged of committing some other crime. It must be recalled that POCA was used in July 2016 in the case of R. Sri Sanjeevan, the Malaysian Crime Watch Task Force (MyWatch) chairperson – a civil society organisation.
This amendment, however, may have the effect of reducing the interest or concern of political parties about POCA and such DWT laws.
The effect of DWT laws
The victims of these laws may now be mostly common people who are being detained and restricted for years without being accorded a fair trial.
The number of victims of such DWT laws are also unknown as most such information in Malaysia are usually known when the government makes a reply to a Parliamentary Question. The recent information about the number of juvenile victims of POCA was because of such questions was raised by an opposition parliamentarian.
Now whenever a person is suspected of a crime involving 2 or more persons, POCA can simply be used as it is so much easier and requires no comprehensive investigation or gathering of evidence that would have been required if one was to be charged and tried in court.
In a fair trial, the prosecution needs to prove that a person is guilty beyond reasonable doubt.
The guilt or innocence of a person must be determined by an independent judge in court, and the belief of the police, prosecution or government that a person is guilty is inadequate. A trial also gives a right to the accused persons to defend themselves, and the courts will decide after considering all evidence and facts of the case.
Therefore, we the undersigned, call for the following;
1. the immediate repeal of all DWT laws, including the Prevention of Crimes Act 1959, Prevention of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;
2. the immediate and unconditional release of all persons now currently being detained and/or restricted under these draconian laws;
3. the immediate disclosure of the numbers of persons being detained under these laws, and the reasons used to justify their detention;
4. that compensation and damages be paid to all victims of DWT laws for their loss of rights and liberties.
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Asia Pacific Solidarity Coalition. (APSOC)
Australians Against Capital Punishment(AACP)
Center for Prisoners' Rights Japan
Christian Development Alternative (CDA), Bangladesh
Civil Rights Committee of KLSCAH
Democratic Commission for Human Development, Pakistan
Indonesian Legal Roundtable
Institute for development of Alternative Living (IDEAL)
Japan Innocence and Death Penalty Information Center
Legal Awareness Watch (LAW), Pakistan
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Malaysia Youth & Student Democratic Movement (DEMA)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
NUFAM(National Union of Flight Attendants Malaysia)
Parti Rakyat Malaysia (PRM)
Persatuan Komuniti Prihatin Selangor & KL
Philippine Alliance of Human Rights Advocates
PROHAM (Society for the Promotion of Human Rights, Malaysia)
Sahabat Rakyat 人民之友
Sawit Watch, Indonesian Social NGO
Saya Anak Bangsa Malaysia (SABM)
Sosialis Alternatif (Committee for Workers International-Malaysia)
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for Democracy
Think Centre, Singapore
Workers Assistance Center, Inc., Philippines
WH4C (Workers Hub For Change)
Yaung Chi Oo Workers Association (YCOWA)
Human Rights & Democracy Media Center “SHAMS”