Court awards about RM400,000 to family of Syed Mohd Azlan, death in police custody victim?

Well, another court decision awarding compensation to family of another man who died in police custody. Syed Mohd Azlan Syed Mohamed Nur, who was arrested by police on 3/11/2014 and died in police custody.

RM490,000 to widow of Dharmendran(died in police custody) - 4 officers charged for 'murder' remain FREE and in the police?

The Enforcement Agency Integrity Commission (EAIC), on 30/10/2015, after an inquiry concluded the death was caused by the police. The recommended that the said offiocer/s be charged for murder, amongst others. Has anyone been charged yet?

6. Terdapat perlakuan serangan bersifat jenayah yang melibatkan unsur niat bersama atau pensubahatan (abetment) oleh anggota PDRM yang terdiri daripada anggota pasukan tangkapan bagi melakukan kekerasan fizikal secara sengaja ke atas si matiyang telah mengakibatkan kecederaan dan kematian ke atas si mati, dan perlakuan ini adalah merupakan jeniskesalahan bersifat jenayah di bawah undang-undang, khususnya kesalahan di bawah seksyen 302 dan seksyen 325 Kanun Keseksaan dibaca bersama seksyen 34 Kanun Keseksaan atau secara alternatif seksyen 107 Kanun yang sama; 

EAIC also said there was police that tampered with the evidence  - surely the police officers who did ought to have charged for this, even if they were not involved in the killing or murder, and they still can...

3. Terdapat perlakuan gangguan bahan bukti yang material oleh anggota PDRMiaitu, 

(i) membersihkan tempat kejadian sebelum dilawati dan diperiksa oleh pegawai perubatan,

(ii) melupuskan tikar getah dan karpet yang dipercayai mempunyai kesan darah si mati di tempat kejadian tangkapan, dan 

(iii) perlakuanmenyembunyikan/menghilangkan saksi mata (eye witness) yang melihat kejadian tangkapan si mati; 

See related post:-

Police officers that tortured and killed detainee - what will the AG and the Malaysian government do?

Cepat tindakan kes bunuh lelaki korea, kenapa lambat tuduh polis/pembunuh Syed Mohd Azlan?

Police officers that killed Syed Mohd Azlan, and tried to hide a crime? What happened?

Resolusi Peguam 'Dakwa Polis melakukan jenayah', dan singkirkan 'polis kotor' - kes Syed Mohd Azlan?

Syed Mohd Azlan - Polis 'pembunuh',yang 'cover up' kesalahan - kenapa belum didakwa di Mahkamah?

Crime has no limitation - so all these police officers for killing, and/or for 'tampering' with evidence to 'hide'/'protect' their fellow police officers ought to have been charged - Internal Disciplinary actions is certainly not appropriate or just. 

Must all victims of death in custody and torture by police only be compensated or receive justice IF the family or victim sues the police?

 

Family of man who died in Johor police lock-up wins close to RM500,000 in compensation

Thursday, 19 Dec 2019 02:08 PM MYT

BY BEN TAN

Lawyer for the plaintiffs, M. Visvanathan and Syed Mohd Azlan Syed Mohamed Nur‘s family at the Johor Baru High Court December 19, 2019. — Picture by Ben Tan

JOHOR BARU, Dec 19 — The High Court today awarded the family of Syed Mohd Azlan Syed Mohamed Nur who died in police custody with 61 wounds on his body five years ago RM448,000 in compensation and damages.

The family had initiated civil proceedings in 2015 against three policemen and 11 others, including the inspector-general of police and the government.

The money covered their court costs, dependency claims, malfeasance in public office, exemplary, bereavement, funeral and special damages.

Syed Mohd Azlan, a 25-year-old welder, was arrested in the early hours of November 3, 2014 on suspicion of rioting and possession of a weapon two weeks earlier.

He was taken to the police station lock-up in Sungai Rengit, Johor and found unconscious five hours later during a transfer to the Kota Tinggi district police headquarters. He was sent to the Bandar Penawar health clinic where he was pronounced dead.

In 2018, the Enforcement Agency Integrity Commission (EAIC) said police personnel had beaten Syed Mohd Azlan while in custody, adding that it found 61 wounds on his body that were consistent with defensive injuries.

The EAIC, in its statement, reiterated its findings showed there was foul play in Syed Azlan’s death.

Three policemen — Weddrin Mojingkin, Joshua Perait and Muhammad Bunyamin — were charged under Section 304(b) of the Penal Code with culpable homicide not amounting to murder, which is punishable with jail up to 30 years and a fine.

However, they were found not guilty at the Sessions Court. The High Court this year upheld their acquittal.

Despite their release from the criminal proceeding, High Court Judge Datuk See Mee Chun ruled in favour of Syed Mohd Azlan’s family today.

In her ruling, the judge said the police are duty-bound to uphold the law and keep the nation’s peace and security.

“All action towards that must be in accordance with the Federal Constitution and law,” she said.

See quoted from a 2008 case involving custodial assault and police brutality against a man who was suspected to be involved in a crime.

She said that an award of damages must reflect the sense if public outrage, emphasise the importance of the constitutional right and the gravity of the breach and deter future breaches.

Syed Mohd Azlan’s family was represented by lawyer M. Visvanathan, while senior federal counsel Jailani Abdul Rahman acted for the government.

Visvanathan later told reporters that the court decision sent a strong message that injustice will not be tolerated.

“A full stop must be made,” he said.

Syed Mohamad Shariff Syed Mohamed Nur, brother to the deceased, expressed his gratitude to the court and hoped the authorities would learn the proper treatment to accord detainees.

The late Syed Mohd Azlan’s family present in court today were his father Syed Mohamed Nur Ali, 72; mother Sharifah Khalilah Syed Sulaiman, 61; and younger brother Syed Mohamad Affendi, 38. - Malay Mail, 19/12/2019

Court rules cops caused death of ex-welder, awards dad RM383,300

V Anbalagan

-

December 19, 2019 3:01 PM

Lawyer M Visvanathan with Syed Mohd Azlan Syed Mohamed Nur’s father, Syed Mohamed Nur Ali (2nd from left), and other family members.

PETALING JAYA: The father of a former welder was awarded RM383,300 in damages today after the High Court in Johor Bahru found that his death was caused by police negligence when in their custody five years ago.

Judge See Mee Chun found the police liable for causing injuries to Syed Mohd Azlan Syed Mohamed Nur that ultimately led to his death.

See also said Syed Mohd Azlan must have been in severe pain before he succumbed to his injuries.

“The damages awarded must send a strong message to the police force that they must act in accordance with the Federal Constitution and the relevant laws,” she said.

The judge said the court had to come down hard on the enforcement agency as the life of a person had been unlawfully taken away.

See awarded RM150,000 for the tort of misfeasance in public office, RM150,000 in exemplary damages, and RM20,800 for bereavement, funeral and miscellaneous expenses.

Syed Mohd Azlan’s father, Syed Mohamed Nur Ali, was also awarded RM62,500 in dependency claims and another RM60,000 in costs.

The Enforcement Agency Integrity Commission (EAIC), in its investigation, found that Syed Mohd Azlan, 25, was “murdered” by police personnel who beat him up in the police station lock-up in Sungai Rengit, Johor, on Nov 3, 2014.

Syed Mohd Azlan suffered 61 injuries to his face, body and legs, some of which were consistent with “defensive wounds while protecting himself from physical attack by police personnel”, the EAIC found.

The EAIC also found evidence that police personnel had cleaned the scene of the beatings before medical officers arrived to check on Syed Mohd Azlan.

The police also disposed of the rubber mat and carpet believed to have been stained with Syed Mohd Azlan’s blood.

The EAIC also said the police “hid away eye-witnesses” from the scene, and that criminal charges should be filed against them for violating provisions in the Criminal Procedure Code.

Following the findings, lawyer M Visvanathan, who appeared for Syed Mohamed Nur, said the negligence suit was filed in 2017 against 16 policemen and the government.

Syed Mohd Azlan was arrested by a team of police officers on Nov 3, 2014 at 3.30am as part of an investigation into alleged possession of weapons or missiles in a riot, based on a police report made against him.

EDICT, an NGO fighting against deaths and abuse in custody, said the damages awarded would be a great relief to Syed Mohd Azlan’s family but could not compensate for his “dreadful death”.

In a statement, it said the case showed the extent to which abuse of police power and concealment and condonation of abuse was entrenched in the police force.

“It is shocking that to date, the police have announced no disciplinary action against any of the numerous policemen involved,” it said.

It added that today’s decision was a report card on the police, the Attorney-General’s Chambers, the Police Force Commission and the government. - FMT, 19/12/2019

Deaths in Police Custody, Deaths in Immigration Custody, Deaths in Detention still exist in Malaysia...

.. Where six deaths in police custody was cited as having been reported for the period of January to October 2019.This was lower than Suaram’s compilation in previous years of 2018 (eight deaths in police custody), 2017 (10), 2016 (15), and 2015 (12).

Suaram’s report that the years where seven cases of police custodial deaths were reported were in 2009 and 2000.

  

252 deaths in prisons in 2015, 269 in 2016, and a calculated figure of 319 in 2017 based on publicly available information.Suaram said however that the actual figures for 2018 and 2019 were unavailable for now.

 deaths during immigration custody as 87 in 2015, 40 in 2016, 24 in 2017, 32 in 2018 and 37 in 2019.

Suaram: Police initiative needed for lasting solution to deaths in their custody

Monday, 09 Dec 2019 04:32 PM MYT

BY IDA LIM

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Suaram programme manager Dobby Chew speaks at the launch of the Suaram Human Rights Report 2019 in Kuala Lumpur December 9, 2019. — Picture by Hari Anggara

KUALA LUMPUR, Dec 9 — The police’s change in attitude to take charge is required if Malaysia is to have lasting changes to the problem of detainees dying in police custody, human rights watchdog Suara Rakyat Malaysia (Suaram) said today.

Suaram programme manager Dobby Chew said police should be given credit where it is due, noting that the recorded known cases of police custodial deaths so far for 2019 at only six cases is the lowest in the past 20 years.

“The next lowest that we have is seven, which is about two decades ago.

“But what should be noted is that the numerical reduction is good, but I don’t think there is any systematic change on how they address it, which is a big concern,” he cautioned, noting how the figures for custodial deaths could easily jump back up without structural changes.

Chew was presenting Suaram’s annual human rights report for the year 2019, where six deaths in police custody was cited as having been reported for the period of January to October 2019.

This was lower than Suaram’s compilation in previous years of 2018 (eight deaths in police custody), 2017 (10), 2016 (15), and 2015 (12).

Suaram’s report that the years where seven cases of police custodial deaths were reported were in 2009 and 2000.

When asked for procedural or structural reforms that could be done to address deaths in police custody, Chew said that the biggest reform that could be easily implemented would be how the police handle such incidents.

Noting the example of a police station chief last year immediately contacting the EAIC for a joint investigation on such a custodial death, Chew said: “I think steps like those, we don’t need any legal amendments or policy amendments. You just need the police chief themselves willing to be accountable.”

Pointing out that some of the custodial cases would realistically have possible elements of power abuse or violations, he said: “And those you can’t run away from it. If your officers have done something wrong and caused a death, then don’t try to run away from it because eventually the truth will come out.”

He said that there were other cases where the blame for custodial deaths is not clear-cut such as when medical issues are not treated in time.

“Sure they have a duty of care towards detainees, but sometimes there are very rational reasons that people can understand, people can empathise or people can say ‘there’s a problem but we can address it. It’s not anyone’s fault but yes it did happen’.

“But before we can even get to that stage the police themselves need to be the one that is accountable and willing to say, ‘yes, we might have messed up that, or there may have been some misconduct or some oversight but the death happened, we need to investigate and not hide it away’,” he said.

Chew said there would be no significant changes even if the proposed Independent Police Complaints and Misconduct Commission is eventually formed, if the police do not assume responsibility on their own initiative for such custodial deaths.

“And until the day we fix that part, we can amend the Criminal Procedure Code (CPC) like we did, we introduced the inquest process, we can introduce IPCMC and have them do investigations, but until the day police themselves is the one that comes out and says something has happened, we need to investigate, the status quo is not going to change much,” he said, adding that Malaysia would then go back to “square one” very quickly.
Human Rights Commission of Malaysia (Suhakam) commissioner Jerald Joseph, who was present as a member of the audience during the Suaram report launch, said statistics of custodial deaths cannot be taken just at face value.

He pointed out that it was important to find out what are the causes of such deaths, as some of these could be due to natural causes.

“So having a medical personnel is actually the answer. And Suhakam has been pushing the government to have custodial medical units at the lock-ups.

“We hear the good news that beginning of the year, it’s going to be launched in five centralised lock-ups, it’s a good start. That will determine whether these numbers make any sense,” he said during the question-and-answer session.

Jerald also said prisons should also be asked to implement similar reforms, noting that prisons have the largest population of detainees with hundreds of custodial deaths annually.

“We know some people are incarcerated for a long time, so it could be natural causes. Are there factors that caused the death early, negligence or even torture? I think every death must be taken seriously, must be investigated, so I think that’s the quality debate we are now moving into, we can push this government to do better in doing that.

According to Suaram’s report, there were 252 deaths in prisons in 2015, 269 in 2016, and a calculated figure of 319 in 2017 based on publicly available information.

Suaram said however that the actual figures for 2018 and 2019 were unavailable for now.

Suaram’s report also listed deaths during immigration custody as 87 in 2015, 40 in 2016, 24 in 2017, 32 in 2018 and 37 in 2019.

The report is the 22nd edition released by Suaram, which also marked its 30th anniversary this year.

https://www.malaymail.com/news/malaysia/2019/12/09/suaram-police-initiative-needed-for-lasting-solution-to-deaths-in-their-cus/1817533

16 Groups Call on Malaysia to ABOLISH DETENTION WITHOUT TRIAL RESPECT RIGHT TO FAIR TRIAL

Joint Media Statement – 27/10/2019

ABOLISH DETENTION WITHOUT TRIAL RESPECT RIGHT TO FAIR TRIAL

On the occasion of October 27, the anniversary of Operation Lallang in 1987, when about 106 persons were arrested and detained under a draconian Detention Without Trial law, we the 16 undersigned organisations and groups call on Malaysia to abolish all existing Detention Without Trial laws, including the Prevention of Crimes Act 1949 (POCA), Prevention of Terrorism Act 2015(POTA) and Dangerous Drugs (Special Preventive Measures) Act 1985.

In the 1987 Operation Lallang, about 106 persons, including human rights defenders, women activist, politicians, worker rights activist, religious groups and others were arrested and detained without trial under the Detention Without Trial law, the Internal Security Act 1960.

The Detention without Trial law, then and now, does not allow its victims to challenge the alleged reasons for which they have been detained and/or restricted in court – no judicial review.

The police arrest and the Minister orders the Detention/Restrictions, whereby now in place of the Minister, for POCA and POTA, this power is given to the Prevention of Crime Board  and Prevention of Terrorism Board respectively.

Detention Orders could be made indefinitely, two years at a time. Likewise Restriction Orders.

Restriction Orders could including being restricted to a particular village/town/district, not being able to leave place of residence after certain time and not being able to access the internet. If there is a breach of any of the restrictions, it is a crime punishable by law.

Some DWT laws repealed but Detention Without Trial came back stronger

Malaysia, under the previous Barisan Nasional government, repealed the Internal Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of Crime) Ordinance 1969, but thereafter brought in Detention Without Trial by amendment into POCA, and enacted a new DWT law being the POTA.

POCA, which was previously a law restricted to triad gangster groups that commit violent crimes, have now had its scope broadened. It now can be used against any persons who is suspected of committing any crime in the Pernal Code. POCA’s First Schedule, item 2 today reads as follows, ‘2. 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.’ 

POCA can also be used against those suspected in terrorism activities, human trafficking, smuggling of persons and even drug trafficking, amongst others.

Torture of DWT victims

Under these Detention Without Trial laws, even though there is really no necessity for any confessions or evidence gathering, as there will be no trial anyway, and there is no way to challenge in court the reasons for detention, reports of torture has been alleged by victims, usually human rights or political activists who are brave to do so, as many an ordinary detainee is just too fearful of further repercussions or retaliation to speak up.

Irene Xavier, social activist, arrested on 31 Oct 1987 - “I shall always remember how on the ninth day of my detention, I was beaten with a stick. It was the most humiliating experience in my life. I was forced to stand there while an inspector of the Special Branch beat me with a stick - to remind me that they were not going to treat women more leniently. I was truly in a state of shock.”

Chow Chee Keong, social activist, arrested on 28 Oct 1987 - An interrogator tried to burn his genitals with a burning rolled-up piece of newspaper. They pulled his hair, stepped hard on his fingers and toes with their booted feet and whacked his back with rolled-up bundles of newspapers.

Abdul Rahman Hamzah, a former Sarawak State Assemblyman and political secretary to the former Sarawak Chief Minister, arrested on 20 Sept 1988 - They threw ashtrays at him and beat and poked at him with a broom. He had to do endless strenuous exercises like duck-walking, leap-frogging, crawling on all fours and “swimming” on the floor. All these were aimed at destroying his self-esteem and reducing him to a helpless wreck. If he stopped from exhaustion, they kicked him. They put a large tin over his head and hit it hard with a stick. The sound within was deafening and he suffered cuts and bruises all over his head and face. He was also given the notorious “wet treatment”. They pushed his face into a filthy squat-type toilet and flushed it repeatedly.

The incidence of torture of Detention Without Trial victims may be difficult to prove, but the fact that it exist is probable, taking also the consideration of the number of death in police custody and/or death in detention centers.

The Enforcement Agency Integrity Commission (EAIC) after inquiring into the case of Syed Mohd Azlan Syed Mohamed Nur, who died in police custody, found that police officers had intentionally used violence resulting in the death. They recommended action be taken again these officers for murder.

Recently, it was reported that 10 prison warders have been arrested and remanded in connection with the death of a prisoner, who was found dead in his cell, with blunt force trauma wounds to his head and body.(Malay Mail, 23/10/2019).

Detention Without Trial But No Fair Trial Thereafter makes justifications used for Detention lame

The fact that one is detained without trial, does not mean they cannot be charged and tried in court. As an example, section 19G of POCA states, ‘The detention of any person under this Part shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention.’

The fact that we do not hear of such trials and convictions, during or thereafter their detention without trial makes one question the validity of reasons used for their detentions without trial.

Violation of Human Rights – The Right to Fair Trial

Those detained under DWT laws are denied their right to a fair trial.

Article 10 of Universal Declaration of Human Rights states, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’

Article 11(1) states, ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’

Article 9 states ‘No one shall be subjected to arbitrary arrest, detention or exile.’

Victims of DWT laws are subjected to arbitrary administrative detention, and even arbitrary administrative restrictions.

THEREFORE, we

-          Call for the Immediate repeal of all Detention Without Trial Laws, and urge that all persons be accorded the right to a fair trial;

-          Call for the immediate and unconditional release of all victims of Detention Without Trial; and

-          Call for Malaysia to respect human rights.

Charles Hector

For and on behalf of the 16 groups listed below

ALIRAN

EMPOWER Malaysia

Japan Innocence and Death Penalty Research Center

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility

MARUAH, Singapore

Marvi Rural Development Organization (MRDO), Pakistan

Odhikar, Bangladesh

Persatuan Komuniti Prihatin Selangor & KL (PRIHATIN)

Radanar Ayar Association, Myanmar

Sahabat Rakyat 人民之友 மக்கள் தோழர்கள்

SUARAM

Teoh Beng Hock Trust for Democracy

WH4C (Workers Hub For Change)

Banglar Manabadhikar Suraksha Mancha (MASUM)

Programme Against Custodial Torture & Impunity  (PACTI) 

RELEASE YAZID SUFAAT FROM DETENTION UNDER POTA, A DETENTION WITHOUT TRIAL LAW Repeal Detention Without Trial Laws and Immediately Release All Detained/Restricted

Media Statement – 19/10/2019

RELEASE YAZID SUFAAT FROM DETENTION UNDER POTA, A DETENTION WITHOUT TRIAL LAW

Repeal Detention Without Trial Laws and Immediately Release All Detained/Restricted

MADPET(Malaysians Against Death Penalty and Torture is shocked by the Malay Mail report(19/10/2019) entitled ’Home minister: Malaysian militant linked to 9/11 won’t be freed next month’, which refers to one  Yazid Sufaat, a 55 year old biochemist, who is allegedly a Malaysian militant linked to the September 11, 2001 attacks in the United States, who is now in Detention in Simpang Renggam under Prevention of Terrorism Act  2015(POTA), a Detention Without Trial(DWT) law.

Detention Without Trial(DWT) laws allow for the arrest and detention of persons without trial, for a period of two years, which can be extended indefinitely 2 years at a time.

These detainees have never been tried, found guilty and convicted by court, and as such has been denied the fundamental right to a fair trial.

Worse still, is that any person arrested, detained and/or restricted under such DWT laws, cannot even challenge the allege reasons used by the police and/or government in court. There is no judicial review that allows detainees to challenge the alleged reasons used for their detention. 

An example of this is seen in Section 15B((1) POCA, whicc 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,…’ The only thing subject to judicial review are matters of procedural compliance like is he being detained by virtue of an order by the Board and such.

In short, an innocent man can so easily be wrongly arrested, detained and/or restricted without any avenue to clear his name and prove his innocence. The name and reputation of a person and his/her family can also be tarnished without there seemingly being no means legally to challenge it. 

Najib’s administration abolished 2 Detention Without Trial laws, namely the Internal Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of Crime) Ordinance 1969.

But, thereafter by amendments the government broadened the scope of Prevention of Crimes Act 1949 (POCA) to now be able to be used for, amongst other, for any Penal Code offences and other crimes. Detention Without Trial was also brought in by amendment into POCA.

Then, there was the passing of a new Detention Without Trial law being the Prevention of Terrorism Act 2015(POTA).

All Detention Without Trial laws are unjust and a violation of the fundamental human right to a fair trial. It violates the presumption of innocence until proven guilty. 

Yazid Sufaat apparently have been a victim of DWT laws, not once but several times. In 2013, he was charged in court but there seems to be uncertainty whether there was a trial or not. 

Did the court find Yazid Sufaat Not Guilty?

From a perusal of court judgments, it suggests that the said Yazid Sufaat was arrested 7 February 2013 and was charged in court for a charge under section 130G  Inciting, promoting or soliciting property for the commission of terrorist acts. At the High Court, he was successful in challenging the charge. There was an Appeal to the Court of Appeal by the prosecution, and the Appeal Court allowed the appeal on 24/1/2014, and said, amongst others, ‘…order that the respondents' case be remitted to the High Court, Shah Alam for the said court to set the dates for trial….’ ([2014] 2 CLJ 670) – Current Law Journal]

As such, the trial should reasonably have proceeded at the High Court, and if he was found guilty by court, he would have been sentenced to imprisonment, as the law says a person convicted  ‘…shall be punished with imprisonment for a term which may extend to thirty years, and shall also be liable to fine…’.

As such, why is Yazid now being detained under the DWT law POTA? If he was found guilty by the High Court, he would simply be in prison serving out his prison sentence.

Did the High Court, after trial find Yazid not guilty and as such the government simply resorted to using a DWT law, hence avoiding a fair trial?

There are many others who have been or continue to be victims of draconian DWT laws in Malaysia. Many of them may be arrested, detained and/or restricted without being accorded a fair trial, on allegations made by the police and government which could also be false or baseless.

Police/Minister’s Belief Irrelevant – Only Court Decides on Guilt or Innocence

Police have arrested many suspects, and many have been released without ever being charged. Many have also been charged in court, only for the court, after trial, to find them not guilty. To prevent wrongful deprivation of rights and liberties by the police or government, the independent courts serve as a necessary safeguard to prevent miscarriage of justice. Courts only should decide on guilt or innocence – not the police, some Board, the Home Minister or the government.

Past arrest and detentions under DWT trial laws should never be considered ‘criminal records’, or proof that these are bad people. Only convictions by court after a fair trial is proof. Remember that Lim Kit Siang, Hadi Awang and Mat Sabu were all detained under DWT laws – the ISA, and it is certainly wrong to say that they have a criminal record.

Good Peoples’ Representative and Parties Must Call for Abolition of Detention Without Trial

There is a belief that some politicians and political parties may no longer be pushing as hard as they did before for the abolition of DWT laws simply because none of their leaders or members have fallen prey to DWT laws. It could also be because the past Barisan Nasional government included in some DWT laws the provision that says, ‘No person shall be arrested and detained under this section solely for his political belief or political activity.’(Section 4(2A) POCA), which may have resulted in some politicians and their party being less concerned with the abolition of DWT laws. The people are still at risk, and many have fallen, and are still victims of these draconian DWT laws.

Therefore, MADPET

-          Calls for the immediate and unconditional release of Yazid Sufaat and all others currently being detained and/or restricted under Detention Without Trials including Prevention of Terrorism Act  2015(POTA), Prevention of Crimes Act 1949 (POCA) and Dangerous Drugs (Special Preventive Measures) Act 1985;

-          Calls on the government to charge and accord the right to fair trial to all persons who have allegedly committed any crimes, including crimes concerning terrorism;

-          Calls on Malaysia to immediately repeal all Detention Without Trial laws;

-          Calls on Malaysian media to be conscious about reporting the truth, and not simply propagate police/government suspicions or belief as being the truth, remembering always that a person is to be presumed innocent until proven and found guilty in a fair trial by the court;

-          Calls on Malaysia to uphold human rights and justice.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

 

Home minister: Malaysian militant linked to 9/11 won’t be freed next month

Saturday, 19 Oct 2019 02:49 PM MYT

BY BEN TAN

Home Minister Tan Sri Muhyiddin Yassin said it was not true that Yazid will be freed following the expiry of his Prevention of Terrorism Act (Pota) 2015 detention order. — Picture by Shafwan Zaidon

PONTIAN, Oct 19 — The Home Ministry today denied that Yazid Sufaat, the Malaysian militant linked to the September 11, 2001 attacks in the United States, could be freed from detention next month.

Home Minister Tan Sri Muhyiddin Yassin said it was not true that Yazid will be freed following the expiry of his Prevention of Terrorism Act (Pota) 2015 detention order as there were other procedures to follow before a decision is made.

“I (as Home Minister) can’t make the decision until the Prevention of Terrorism Board convenes a meeting where a recommendation will be made based on the detainee’s behaviour while in prison.

“Only then can the Home Ministry make a decision,” Muhyiddin said after meeting volunteers and officers from the Pontian People’s Volunteer Corps (Rela) here today.

Muhyiddin was responding to an earlier news report that Yazid, a known terrorist, is expected to be released from Simpang Renggam prison in November, where he had spent two years in detention under Pota 2015 which allows authorities to detain a suspect without trial for that period of time.

Earlier today, Singapore-based news portal The Straits Times reported that Yazid who was caught with four tonnes of ammonium nitrate for a planned series of bombings in Singapore in 2000, could be freed from prison in Johor next month.

The 55-year-old US-trained biochemist who is also a member of the Jemaah Islamiah terror network, has been imprisoned three times in the past 17 years for terrorist-related activities.

Pota is an anti-terrorism law that was passed by the government on April 7, 2015. It enables the authorities to detain terror suspects without trial for a period of two years.

The law also does not allow any judicial reviews of detentions. Instead, detentions will be reviewed by a special Prevention of Terrorism Board. The bill has been criticised by opposition elements as a reincarnation of the former Internal Security Act, which was revoked in 2012. - Malay Mail, 19/10/2019

Report: Malaysian al-Qaeda suspect linked to 9/11 could be out of prison next month

Saturday, 19 Oct 2019 11:51 AM MYT

BY SYED JAYMAL ZAHIID

Bukit Aman counter-terrorism chief Ayob Khan Mydin Pitchay says the final decision to release Malaysian terrorist Yazid Sufaat has not been made yet by the Prevention of Terrorism Board, but his detention period will expire this November. — Picture by Yusof Mat Isa

KUALA LUMPUR, Oct 19 ― Malaysian terrorist Yazid Sufaat, the suspect caught with four tons of ammonium nitrate for a planned series of bombings in Singapore in 2000, could be freed from prison next month, The Straits Times reported.

The 55-year-old US-trained biochemist is expected to be released from Simpang Renggam prison where he had spent two years in detention under the Prevention of Terrorism Act (Pota), which allows the authorities to detain a suspect without trial for that period of time.

Yazid, said to be a member of the Jemaah Islamiah terror network, has been imprisoned three times in the past 17 years for terrorist-related activities.

“The final decision to release him has not been made yet by the Prevention of Terrorism Board, but his detention period will expire this November,” Bukit Aman counter-terrorism chief Ayob Khan Mydin Pitchay told The Straits Times.

“Whether or not the detention order will be extended, the decision will be made before the expected date of release.”

Ayob declined to reveal the exact date.

In the 1990s, Yazid attempted to cultivate and load anthrax onto weapons in Afghanistan.

His house in Kuala Lumpur was also used by senior al-Qaeda members for meetings, one of which discussed plans to crash planes in the United States on September 11, 2001, news media reported.

He is the only Malaysian with direct links to the attacks.

Despite spending almost two decades behind bars and undergoing an extensive deradicalisation programme, Yazid was reported to remain totally unrepentant.

Ayob said that Yazid has the ability to easily recruit and incite people despite his limited knowledge of Islam.

The convicted militant is said to have distorted verses of the Quran ― Islam's holy scripture ― to justify his terror acts.

“At Tapah prison, some inmates were radicalised by him, that’s how dangerous he is. Till this day, Yazid remains the most challenging militant for us to rehabilitate,” Ayob said.

Yazid, a former army captain, was first arrested in 2002 under the Internal Security Act (ISA). He was released in 2008 after undergoing rehabilitation and showed signs of “remorse” and “repentance”.

But just five years later, he was detained for the second time under the Security Offences (Special Measures) Act (Sosma) ― the legislation that replaced the ISA ― for recruiting new members for the Islamic State in Iraq and Syria (ISIS).

He served a four-year sentence in Perak's Tapah prison.

Yazid was again arrested in December 2017 under Pota after the authorities found that he had been recruiting fellow inmates for al-Qaeda while in jail.

Throughout the years as a militant, Yazid reportedly held weekly religious classes in 2012 at his house in Ampang, Selangor, where he recruited several individuals including a then 21-year-old man, Muhamad Razin Sharhan Mustafa Kamal.

Razin told the Kuala Lumpur High Court in 2015 that Yazid had undergone military training in Afghanistan, met Osama Bin Laden and had taken part in conflict or what the militants dubbed as “jihad”. - Malay Mail, 19/10/2019

[2014] 2 CLJ 670  

PP v. YAZID SUFAAT & ORS COURT OF APPEAL, PUTRAJAYA ABU SAMAH NORDIN JCA;   AZAHAR MOHAMED JCA;   MOHD ZAWAWI SALLEH JCA [CRIMINAL APPEAL NO: W-05-141-05-2013] 27 JANUARY 2014

Counsel: For the appellant - Abdul Wahab Mohamad (Mohamad Hanafiah Zakaria, Ishak Mohd Yusof, Mohd Farizul Hassan Bakri, Choo Hueay Ting & Nadia Mohd Izhar with him); DPPs For the 1st & 3rd respondents - Amer Hamzah Arshad (Edmund Bon Tai Soon, Wan Hidayati Nadirah Wan Ahmad Nasir, Nur Zatulitri Md Yusof, Farida Mohamad, New Sin Yew & Chan Yen Hui with him); M/s Zatul, Hilda & Partners

JUDGMENT Abu Samah Nordin JCA: [1] This is an appeal by the Public Prosecutor against the decision of the High Court, Shah Alam allowing a joint application by the respondents by way of a notice of motion: (i) to set aside and/quash or stay permanently the charges against them in exercise of the court's inherent jurisdiction; and (ii) that the respondents be acquitted and discharged of the said charges. [2] The respondents were arrested on 7 February 2013 under s. 4 of the Security Offences (Special Measures) Act 2012 ("SOSMA") and were separately charged before the Magistrate's Court, Ampang for security offences under s. 130G(a) of the Penal Code ('the Code'). Their cases were later transferred for trial before the High Court, Shah Alam pursuant to s. 177A of the Criminal Procedure Code. Section 12 of the SOSMA provides that all security offences shall be tried by the High Court. [3]Yazid bin Sufaat ('first respondent') was charged for committing a security offence under s. 130G(a) of the Penal Code, namely for promoting the commission of a terrorist act with the intention of advancing an ideological cause which is punishable with imprisonment for a term which may extend to 30 years and shall also be liable to fine. The charge against him reads: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan dengan niat untuk memajukan suatu tujuan ideologi, dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dan boleh dihukum di bawah seksyen yang sama. [4] Halimah binti Hussein ('second respondent') was charged for abetting the first respondent in promoting the commission of the said terrorist act, which is an offence under s. 130G(a) of the Code read with s. 109 of the said Code. The charge against her reads: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang, di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, telah bersubahat dengan Yazid bin Sufaat dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan di mana perbuatan itu dilakukan dengan niat untuk memajukan suatu tujuan ideologi dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria di mana kesalahan tersebut telah dilakukan atas sebab-sebab persubahat kamu, dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dibaca bersama seksyen 109 Kanun yang sama. [5] Muhamad Hilmi bin Hasim ('third respondent') was similarly charged for abetting the first respondent in promoting the commission of the said terrorist act at the same place and time, which is an offence under s. 130G(a) of the Code read with s. 109 of the said Code. He was charged as follows: Bahawa kamu antara 1 haribulan Ogos hingga 20 haribulan Oktober 2012 jam antara 8.30 pagi dan 10.30 pagi, di rumah beralamat DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya, Ampang, di dalam Daerah Ampang, dalam Negeri Selangor Darul Ehsan, telah bersubahat dengan Yazid bin Sufaat dengan diketahui oleh kamu menggalakkan pelakuan perbuatan keganasan di mana perbuatan itu dilakukan dengan niat untuk memajukan suatu tujuan ideologi dan perbuatan tersebut boleh semunasabahnya dianggap sebagai diniatkan untuk menggugut orang awam di Syria di mana kesalahan tersebut telah dilakukan atas sebab-sebab persubahat kamu, dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 130G(a) Kanun Keseksaan (Akta 574) dibaca bersama seksyen 109 Kanun yang sama. [6] In this judgment, reference to the 'respondents' means the first and third respondents only unless otherwise stated. [7] We felt it necessary to reproduce the abovesaid charges against the respondents as the High Court's decision in setting aside and/quashing the charges and acquitting them of the said charges was based on the ingredients of the offence as stipulated in the charges. [8] What is a 'terrorist act'? The term 'terrorist act' is defined in s. 130B(2) of the Penal Code: 130B(2): For the purposes of this Chapter, "terrorist act" means an act or threat of action within or beyond Malaysia where: (a) the act or threat falls within subsection (3) and does not fall within subsection (4); (b) the act is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the act or threat is intended or may reasonably be regarded as being intended to: (i) intimidate the public or a section of the public; or (ii) influence or compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization to do or refrain from doing any act. [9] An offence under s. 130G(a) of the Code is one of the offences relating to terrorism referred to in Chapter VIA of the Code. Offences under Chapter VIA of the Code are classified as "security offences" by virtue of s. 2 of the SOSMA. [10] SOSMA is an Act of Parliament enacted pursuant to art. 149 of the Federal Constitution ('the Constitution'). The long title to the Act expressly states that it is, "An Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters". By reason of s. 2 of the SOSMA, a person charged for committing a security offence will be tried according to the procedures as laid down in SOSMA. It must be noted that SOSMA merely regulates the trial of security offences. It does not create the said offences. Security offences are offences under Chapters VI and VIA of the Code and punishable under the said Code. [11] When the case was called up before us, learned counsel for the first and third respondents objected to the hearing of the appeal on the ground that the second respondent was absent. It was submitted that the appeal should be heard in the presence of all the respondents in order to avoid any possible conflict of decisions by different panels of this court. The appellant insisted on proceeding with the appeal as there was no foreseeable likelihood of securing the presence of the second respondent who could not be traced after she was acquitted of the charge against her. Attempts to execute the warrant of arrest against the second respondent were unsuccessful. [12] After hearing submissions from both parties, we ruled that we could proceed with the appeal against the respondents before us in absence of the second respondent. The appeal in respect of the second respondent could be heard separately after the execution of the warrant of arrest against her. There is no rule of law that the appeal against the first and third respondents cannot proceed in absence of the second respondent. Any further adjournment of the appeal would result in the respondents being held in custody longer than necessary as s. 13 of the SOSMA states that no bail shall be granted to a person charged with a security offence. [13] The application to set aside and/quash or stay the charges permanently against the respondents is based on three grounds. Firstly, the charges against them are defective, confusing, ambiguous and thus do not disclose any offence in law. Secondly, the charges against them are made mala fide, baseless, frivolous, vexatious and an abuse of the process of court. Thirdly SOSMA is unconstitutional and enacted contrary to arts. 149, 5 and/or 8 of the Constitution. [14] Before the High Court, the appellant conceded that the court has inherent power to set aside and/quash or stay the charges against the respondents on the grounds of mala fide or that they are oppressive or an abuse of the process of court. (Dato' Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625; [2010] 6 MLJ 538, Karpal Singh & Anor v. PP [1991] 2 CLJ 1458; [1991] 1 CLJ (Rep) 183; [1991] 2 MLJ 544). On the first ground, the High Court held and correctly, that it has inherent power to set aside and/quash or stay the charges permanently, "to prevent an oppressive and mala fide prosecution, abuse of its process and to undo wrong in the course of administration of criminal justice". As for the third ground, it is clear from the notes of proceedings before the High Court that learned counsel for the respondents did not dispute the constitutionality of SOSMA which was passed pursuant to art. 149 of the Constitution. Thus the High Court did not in its grounds of judgment decide on this issue. [15] The crux of the respondents' contention is that the respondents are charged for promoting an act of terrorism and that act may reasonably be regarded as being intended as a threat to the members of public in Syria and not in Malaysia. It is the contention of the respondents that SOSMA was enacted pursuant to art. 149 of the Constitution to deal with action or threat committed within Malaysia by any substantial body of persons from inside or outside Malaysia. Article 149 states: 149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation: (a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or (b) to excite disaffection against the Yang di-Pertuan Agong or any Government in Federation; or (c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or (d) to procure the alteration, otherwise than by lawful means, of anything by law established; or (e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or (f) which is prejudicial to public order in, or the security of, the Federation or any part thereof, any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill. (emphasis added). [16] Thus, while art. 149 of the Constitution empowers the legislature to pass an Act of Parliament to deal with action taken or threat by any substantial body of persons from within or outside Malaysia, it does not empower Parliament to legislate or make laws meant to deal with action or threat by any substantial body of persons committed outside Malaysia. As the charges against the respondents specifically refer to terrorist act against members of public in Syria and not in Malaysia the said charges are thus defective, bad in law and do not disclose any offence under s. 130G(a) of the Penal Code. [17] It follows that the special measures provided in SOSMA relating to trial of a security offence under s. 130G(a) of the Penal Code are not applicable for trial of the respondents. It is an abuse of process of court to charge the respondents for security offences under s. 130G(a) of the Code and apply the provisions in SOSMA for the trial of the respondents. [18] The High Court agreed with the submissions of counsel for the respondents that the charges against them were related to acts of terrorism committed outside Malaysia, ie, in Syria. It held the view that SOSMA which was enacted pursuant to art. 149 of the Constitution, which is meant to deal with action or threat committed within Malaysia by any substantial body of persons from within or outside Malaysia, clearly does not apply to the trial of the respondents for offences relating to acts of terrorism committed outside Malaysia. The High Court ruled that should the prosecution proceed with the said charges against the respondents by invoking the provisions in SOSMA it would be an abuse of the process of court. On those grounds, the High Court set aside and/quashed or stayed permanently the charges against the respondents and ordered them to be acquitted and discharged. [19] For convenience, we reproduce paras. 22(b) and (e) of the judgment of learned judge which contained His Lordship's reasoning in allowing the application by the respondents: (b) Mahkamah ini berpuas hati dan bersetuju dengan hujahan oleh peguam bela bagi pihak Pemohon-Pemohon di mana terdapat merit dalam hujahan yang diutarakan oleh pihak peguam bela mengenai isu berkaitan dengan pertuduhan dan pemakaian SOSMA yang digubal di bawah Perkara 149 Perlembagaan Persekutuan. Adalah dipersetujui bahawa Perkara 149 Perlembagaan Persekutuan hanyalah terpakai bagi maksud ancaman keganasan yang ditujukan kepada keselamatan dalam negeri Malaysia oleh orang atau sebilangan orang yang sama ada berada di dalam mahu pun di luar negara. Oleh sebab pertuduhan-pertuduhan yang dikenakan terhadap Pemohon-Pemohon adalah melibatkan keganasan yang berlaku di luar negara Malaysia iaitu di negara Syria, maka pada pandangan Mahkamah ini keadaan tersebut tidak tertakluk di bawah ruang lingkup atau skop pemakaian Perkara 149 Perlembagaan Persekutuan. Oleh itu SOSMA yang digubal di bawah Perkara 149 Perlembagaan Persekutuan pada pandangan Mahkamah ini tidak boleh digunapakai sebagai prosedur dalam perbicaraan bagi membuktikan pertuduhan-pertuduhan yang telah dihadapkan terhadap Pemohon-Pemohon di dalam kes ini. Jika ini dilakukan, ia akan membawa makna bahawa di dalam kes terhadap Pemohon-Pemohon di sini, SOSMA telah digunapakai secara ultra vires Perkara 149 Perlembagaan Persekutuan itu sendiri. Perkara ini tidak sewajarnya berlaku. Mahkamah ini tidak bersetuju dengan hujahan Tuan TPR yang bijaksana bahawa SOSMA mempunyai extra territorial application atau extra territorial jurisdiction, sama seperti KK apabila melibatkan warganegara atau harta benda kepunyaan warganegara Malaysia; (e) Sekiranya pihak Responden/Pendakwaan meneruskan dengan pendakwaan terhadap Pemohon-Pemohon atas pertuduhan-pertuduhan yang seperti sedia ada dengan menggunapakai prosedur diperuntukkan di bawah SOSMA, Mahkamah ini berpandangan bahawa ia adalah satu penyalahgunaan proses Mahkamah dan Mahkamah ini sewajarnya bertindak dengan kuasa yang sedia ada, menghalang pihak Responden/Pendakwaan daripada meneruskan dengan pendakwaan terhadap Pemohon-Pemohon atas pertuduhan-pertuduhan di dalam keadaan kes ini. (emphasis added). (There are no paragraphs (c) and (d) in the grounds of judgment). [20] In our judgment, the High Court had clearly erred and misconceived the charges against the respondents. The charge against the first respondent is for promoting a terrorist act between 1 August 2012 and 20 October 2012 at a house bearing address DL11, Taman Bukit Ampang, Lorong Mutiara 2, Lembah Jaya Ampang, Selangor with the intention of advancing an ideological cause and that such act can reasonably be regarded as being a threat to the members of public in Syria. [21] The third respondent is charged with abetting the first respondent for the commission of the said offence at the same place and time, in Malaysia. The charges against the respondents are therefore in respect of acts of terrorism committed within Malaysia. Be that as it may, s. 4 of the Penal Code clearly states that any offence under Chapters VI and VIA of the Code include offence done outside Malaysia. Section 130B(5)(b) of the Code states that, 'a reference to the public includes a reference to the public of a country or territory other than Malaysia'. [22] Learned counsel for the respondents conceded before us that the charges against the respondents refer to the commission of security offences committed within Malaysia. Learned counsel also conceded that the threat to the security of Malaysia may come from within or outside Malaysia. [23] An act of terrorism is a transnational phenomenon. It has no territorial limits. It transcends national borders. For instance, an act of terrorism may be planned or hatched within Malaysia with an intention to execute it outside Malaysia. The intention of SOSMA is, among others, to prevent Malaysia from being used as a terrorist haven. S. Rajendra Babu and GP Mathur JJ in People's Union For Civil Liberties & Anor v. Union of India AIR 2004 SC 456 aptly describe acts of terrorism as follows: The terrorist threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is therefore difficult in the present context to draw a sharp distinction between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. The Security Council unanimously passed resolutions 1368 (2001) and 1373 (2001); the General Assembly adopted resolutions 56/1 by consensus, and convened a special session. All these resolutions and declarations inter alia call upon member states to take necessary steps to 'prevent and suppress terrorist acts'. India is a party to all these operation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism. [24] In our judgment s. 2 the of SOSMA makes it clear that the procedure laid down in SOSMA apply to trial of any person charged with committing any security offence under Chapter VIA of the Code. The learned judge therefore erred in holding that it would be an abuse of the process of court to invoke the provisions in SOSMA for the purpose of trial of the respondents for security offences under s. 130G(a) or s. 130G(a) read with s. 109 of the Code. [25] For the aforesaid reasons, we allowed the appeal by the Public Prosecutor and set aside all the orders of the High Court. We made a further order that the respondents' case be remitted to the High Court, Shah Alam for the said court to set the dates for trial.