Sunday, September 11, 2011

DWT laws must be abolish - stop using these laws to evade human rights

The Detention Without Trial laws, I believe, are being abused by some at times to overcome failings of the police and the Malaysian government...

A suspect can be arrested and detained - but only for 24 hours, and if further detention for purpose of investigation is needed, then the police need to get a Magistrate's order for further remand - and the maximum here is 14 days. But now, what the police sometimes do to undermine this right of a person in Malaysia - is by (1) putting the 'detainee' on a road show - i.e. repeatedly re-arresting the suspect, usually by different police districts for different crimes - hence ensuring detention beyond the maximum 14 days..., and (2) by resorting to the use of ISA, EO and Detention Without Trial laws, which allow for detention by police up to 60 days..and thereafter, detention by Ministerial order for periods of 2 years at a time, whereby the reasons/justification for the detention by the Minister cannot be even questioned in court anymore...

Whilst much attention was on the ISA, today more is being gotten for the EO....but still not enough for those being detained under that 3rd Detention Without Trial law - Dangerous Drugs (Special Preventive Measures) Act[DD(SPM)A]. The Minister can very easily detain any person under DD(SPM)A, even Anwar Ibrahim, saying that he is involved in drug trafficking - and the person who may not at all be involved in the drug trade cannot even go to court to challenge the reasons for his/her detention.

That is one of the reasons why all Detention Without Trial laws should be immediately repealed...abolished, and all those languishing in detention or under restrictions under these laws should immediately be given back their liberty and freedom.

The Emergency Ordinance came into focus recently when it was used to detain six Parti Sosialis Malaysia (PSM) members. The Star spoke to the Law Minister, Police and NGOs about the pertinence of the EO, which provides for detention without trial and has been used a lot more than the ISA. 

WHEN a mother asked her 19-year old twins, Vignesh and Vengadash, to run to the shop to buy some things, she never thought her boys would be detained by the police.

The boys went to the shop, inadvertently walked in on a police raid, and got scooped up too.

“These are good kids. They really are innocent but just happened to be in the wrong place at the wrong time,” claims Suaram's coordinator E. Nalini.

We don’t know when the police started using EO for petty crimes like motorcycle theft. Most of the EO cases I receive these days are for motorcyle thefts! — E. NALINI

The incident occurred in Petaling Jaya in 2006. The twins were detained under the Emergency (Public Order and Prevention of Crime) Ordinance (EO), which meant detention without trial.

They were moved from one police station to another and after the initial 60-day period, they were put in the Simpang Renggam Detention Centre.

The boys come from a poor family. Their father is sick so he doesn't work and they live on their mother's earnings from her job in a factory.

The mother did not know how to get her boys out so, after a year of worrying and asking around, the family turned to Suaram for help. The human rights NGO wrote letters to the Home Ministry, followed these up with a number of reminders and in 2008 (three months before their two-year detention order expired), the twins were released unconditionally.

“But they lost two years of their lives being detained for a crime they didn't commit,” says Nalini.

Simpang Renggam was also a scary experience for the duo. They were bullied a lot by their cell mates because they didn't want to mix around.

Recently, the police put the spotlight on the EO when they arrested six Parti Sosialis Malaysia (PSM) members, including an MP, under the EO and held them for 28 days for allegedly attempting to revive communism before releasing and charging them.

The EO people are basically nobodies and are also too scared to come out (and challenge it) But the principle is the same; it is detention without trial. — EDMUND BON

Significantly, the “EO6” (as the six have come to be known) detentions were made two weeks before the July 9 Bersih 2.0 rally for electoral reforms, which they were supporting.

Normally, the ISA is used for detention without trial.

But this is the first time that the EO, which is normally reserved for underworld kingpins, dangerous criminals and gangsters was used against politicians and political activists.

“The EO6 has opened many people's eyes. Now people want to know more and more about the EO,” says Nalini, who finds herself explaining that “EO is ISA with a different name” because both bypass the judicial system.

Following the May 13, 1969 racial riots during which (according to official figures) 137 were killed, the King proclaimed a state of emergency and passed the EO which was meant to keep public order and security.

The country has come a long way since then but that proclamation of emergency has never been lifted, which means Malaysia is technically still under emergency. So the EO, a provision made under the Emergency, is still very much in use.

Nalini says Suaram only started paying attention to EO detentions from 2000, alleging that they found the police using it for petty crimes.

“Nobody realised this before so our records start only from 2000. We don't really know when the police started using EO for petty crimes like motorcycle or car theft. Most of the EO cases I receive these days are for motorcycle thefts!”

She laments that statistics on the EO are difficult to get.

“I have written letters to the Home Ministry. I've called the Simpang Renggam centre asking for statistics but they have never responded. The only way we seem to be able to get some statistics is through questions in parliament.

“Even in the parliament answers, we don't really get what we want. We asked how many people have been arrested under the EO over 60 days, how many in two years, and how many have had their detentions renewed after the two-year period. But there's no answer.

“The only data given in parliament is from 2000 to 2009 (which say) that 3,701 people have been detained under the EO. But we don't believe the figure because almost every year, the number of EO detainees is about 1,000. So how come they say it's 3,000 in seven years?

She argues that Suaram is not against taking criminals off the streets but this should be done in accordance with the law.

“Bring them to court, charge them and sentence them, otherwise release them,” she says.

Having dealt with EO cases for years, Nalini claims that the police are detaining people under the EO for KPI purposes to show their superiors that they are doing work by arresting “suspects” even though they might have no connection to the crime they are accused of.

Nalini says that from interviews she has done with former EO detainees, their allegations are all the same: they are taken to the police station, beaten, kicked and forced to confess.

She claims that when they go along with a confession, they are slapped with the two-year detention order instead.

Some “luckier” ones might get buang daerah (restricted residence) in which they are sent off to another district or state to live for a certain period of time.

No doubt this gives them more freedom compared to being in a detention centre because they are able to work, have access to phones, banks, shops and TV, and they are able to move around within the area.

But they have a “curfew” each night and must report to the police station every week. If they need to leave the area for a particular purpose, they have to seek permission from the district police.

Criticism of the EO is not new. Suhakam, the Bar Council and even the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (2005) have all called for the EO to be repealed because they say it has outlived its purpose, violates personal liberties and has been abused by the police.

The UN Working Group on Arbitrary Detention, which spent some time in Malaysia a year ago, also urged for its repeal because they say it allows the police and AG's office to elude the normal penal procedures for common crimes and offences.

The group says it is gravely concerned that thousands are being detained under the EO instead of being tried in court for crimes that fall within the purview of the country's penal code.

Edmund Bon, a human rights lawyer who deals with EO cases, feels the EO is being used by the police as a shortcut.

He claims it is prevalently used on petty crimes and even on minors.

“We don't even get to see the police report so we don't know who the complainant is and the details of the complaint.

“When we ask for it, the police will only give us a piece of paper which says the person is suspected to have stolen cars, the date and time the cars were stolen.”

In Bon's view, the EO allows the police to have a low standard of investigation.

“We can only improve the quality of police investigation if we remove this type of crutches,” he points out.

He stresses that the EO was meant for the 1969 racial riots, which has long ended, and questions why it is still being used today.

It can't be that we need the EO because the police are not competent, he says.

“(By retaining the EO) They are actually saying that. But we are saying that because of the EO, the police are lousy!

“All the police need to do with the EO is get a police report, write the story, get some statements which cannot be scrutinised independently by a court or lawyer, give these to the Home Minister and expect him to sign the detention order for two years,” he says.

As regards detention without trial, the focus has been on the ISA rather than the EO.

Bon believes this is because the ISA has traditionally been used on politicians like during Ops Lalang (1987) and Reformasi (1998) so there has been a lot of public anger and pressure against it.

“The EO people are basically nobodies and are also too scared to come out (and challenge it).

“But the principle is the same; it is detention without trial,” says Bon.

He believes the police used the EO on the PSM six including Sg Siput MP Dr Michael Jeyakumar because the ISA has become so controversial and the government has already announced plans to amend it.

But Bon is quick to stress that the EO is much more serious than the ISA because the number of people detained is far greater.

Earlier this year, to a question in Parliament, the de facto Law Minister Datuk Seri Nazri Aziz said the government has no plan to repeal the 1969 emergency and EO because it is still needed for national security and in the event that it may be needed in the future.

Disagreeing, Bon says: “If the situation warrants it and there is no other option, then the Yang di-Pertuan Agong can proclaim a new EO stating its objective and specific period.

“You can have a 2011 EO but you shouldn't be using the 1969 EO.”

The EO, he adds, is being retained as a “convenient tool” for law enforcement. “But you can't use a hammer to kill a mosquito.” - Star, 11/9/2011, Use of EO in the spotlight

IT was still dark outside the home of Mohamed Ramadan Mohamed Ali and his brother Mohamed Rafe in Batu Caves on March 8 when the entire family was awakened by loud knocks on the front door.

When they opened the door, they saw six to seven policemen who had come to take them away for interrogation under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 on suspicion of motorcycle theft.

Three months later, they and their friend Muhamad Arif Abu Samah, 19, were banished to different states for two years by orders under the EO.

In a telephone interview from Pahang, Ramadan, 22, said the first thing the police did after they entered their home at the Taman Mulia Selayang low-cost flats was to take his and his brother's identity cards and motorcycle keys.

“They said they were investigating motorcycle thefts and wanted to question us,” said Mohamed Rafe, 19, in a telephone interview from Kedah.

The cops then went to Mohamed Arif's flat which was in the same block. All three were taken to the Gombak district police headquarters in Selayang. The three steadfastly denied they were involved in motor-cycle thefts.

Then began a merry-go-round of police stations which confused the boys so much they could not remember how many days they spent at each place.

All three claim they were abused during their 10-day remand and were made to sign documents without knowing what they were. None of the three have a previous criminal record.

“I told my brother Aswan about this when he visited me later on April 22 and he lodged a police report on what had happened to me,” said Arif.

Sometime in mid-March, all three were slapped with a 60-day detention order under Section 3(1) of the EO. 

And on May 16, they were told they could return home and pack their bags, and make their way the next day to their new home states and register at the police station there.

The 60-day order had been replaced by a two-year one which also restricted their movement: Muhamad Arif was banished to Mukim Lenggor in Mersing; Mohamed Ramadan to Mukim Chenor in Maran, and Mohamed Rafe to Mukim Sungai Ular in Kulim.

They have to report to the local police station every day and they are not to leave their homes between 8pm and 6am.

Muhamad Arif, who lives in a hostel, works in the fast-food industry, and Mohamed Rafe, who now lives in a single-storey terrace house in Taman Seri Kota, is a general worker at a factory. Ramadan works for his contractor landlord when he can.

Arif, who had to wait longer to find a job, said the people at his new neighbourhood, hostel and workplace were friendly.

“I told them the truth and they accepted it.”

Mohamed Ramadan, however, is having a harder time: “Because I have been banished here the older folks tell the younger ones not to befriend me, saying I take drugs.”

Mohamed Ramadan and Mohamed Rafe's family have also suffered financial loss since their arrest.

At a press conference on May 5, their sister Afizah revealed that she had received a telephone call from a man who claimed to be one Inspector Zulkifli from the Gombak district police station.

He asked her to post RM30,000 bail for their release but finally agreed to the sum of RM13,000 which he asked her to deposit into a bank account in the name of one Ponnan a/l Subramaniam.

The family did as instructed. Soon after, they discovered they had been duped there was no Inspector Zulkifli and RM5,000 had been withdrawn from the account.

On Aug 25, the trio took their first step towards defending themselves; they applied for leave for judicial review of the restriction orders and challenge of the EO itself.

But the case was adjourned to Oct 5 at the request of the A-G's Chambers who wanted to file submissions to object to the trio's prayers for the EO to be repealed. - Star, 11/9/2011, Trio banished for motorcycle theft

AT first, de facto law minister Datuk Seri Nazri Aziz didn't believe the police use the Emergency Ordinance (EO) on petty thefts.

“If it's true, I'm surprised. The EO is meant for hardcore criminals. It is not meant to be used for petty thefts like stealing motorbikes.

“I don't think the police are using it on petty thefts. Prove me wrong,” he said in an interview two weeks earlier.

When contacted again, after the police explained that they do use the EO on petty crimes, including motorcycle thefts in the interest of public security, Nazri admits to have been proven wrong.

Nazri: ‘ We need to have this tool to enforce order. If there is abuse, then address the abuse. Don’t repeal the law’

He also accepts the police's explanation. “I understand their difficulty. If using the EO helps in the security to the country, we have to leave it to the police. It's not for me to tell them how to do their business because their primary concern is the security and stability of society.

“It's tough for me. As a lawyer, I feel the police have to try and find enough proof first to bring the case to court but I believe the police know what they are doing.”

Nevertheless, there should be safeguards, Nazri says.

“We have to think of some safeguards to make sure there is no abuse,” Suaram, a human rights NGO, and human rights lawyer Edmund Bon who handles a number of EO cases, say the police have been increasingly using the EO on petty crimes.

But as far as Nazri is concerned, the EO has been used sparingly.

“It is not to be used suka suka hati (indiscriminately). We need to have this tool to enforce order. If there is abuse, then address the abuse. Don't repeal the law.

“Don't burn the mosquito net; attack the mosquito,” he says.

He adds that complaints of abuse can be referred to the Suruhanjaya Integrity Agensi Penguatkuasa (SIAP/ Integrity Enforcement Agency Commission).

The EO was made after a Proclamation of Emergency was declared by the Yang di-Pertuan Agong on May 15, 1969, two days after the May 13 racial riots.

More than 30 years later, the proclamation still stands, as well as a number of emergency-related ordinances made with it.

Nazri points out that from time to time the Government does evaluate these ordinances.

Some, like Ordinance No. 7 (Essential Powers) 1969, were revoked in 2006 because they were no longer deemed relevant.

But he stresses that other ordinances, and the EO (Public Order and Prevention of Crime) 1969 in particular, are still very relevant and essential to combat crime as well as to ensure public order, and safeguard the security and economy of the country.

Nazri believes the EO is used in circumstances where the Penal Code, Criminal Procedure Code and Police Act are “not suitable”.

The offences committed under the EO, he adds, are usually (but not always) more serious than offences that can be covered by the normal laws.

“But the EO is used very carefully after taking into consideration all factors,” he stresses.

Nazri says one should also remember that the EO is a deterrent measure.

So, he says, the police have the right to detain someone if they believe he or she is about to act or is likely to act in any manner “prejudicial to public order” or they feel it is necessary for the “suppression of violence” and also the “prevention of crimes involving violence.”

He says the EO is also used on gangsters running criminal activities as the police sometimes prefer to detain rather than charge these people so that they can get their co-operation and details of their network.

“Catching (underworld) gangsters is not easy,” he adds.

What about minors? Why are some being held under the EO?

“It is unfortunate that there are minors being detained under the EO but the criteria aren't age. Rather it is the threat that these people pose which is being used as the yardstick.”

But he does not agree with the EO being used on kids for things like stealing chocolates, cigarettes and drinks from 7-11 convenience stores. There must be a better way of handling such situations, like getting the parents of these kids involved to keep them out of trouble, he says.

Currently, there are 642 detainees at the Simpang Renggam detention centre (main centre for EO detainees). 

There are another two detention centres, one each in Machang and Muar.

While EO detainees are not tried in court, Nazri reiterates that they do have rights, including the right to know why they are being held, the facts behind their detention order and the right to make a representation to the Advisory Board.

On the use of the EO on the six Parti Sosialis Malaysia members (popularly referred to as EO6), Nazri insists the police were right to take action based on their concern for public order and security.

Defending the use of the EO on the six, Nazri says the ISA would not have been appropriate.

“They (EO6) are not terrorists. In the past, the Government used ISA on politicians but the thinking these days is that the ISA should be used only for terrorists,” he says, adding that after the EO detention for 
investigation purposes, the police proceeded to charge the six in court.

Regarding the proposed amendments to the ISA, Nazri hopes it will be tabled in the next parliament session. 

There are many bills in the queue and all have to wait for their turn to be tabled, he adds.

But he is firm on the EO, saying there are no plans to amend it.

Neither are there plans to revoke the 1969 Proclamation of Emergency.

“The (1969) Emergency doesn't specify that it's only for racial riots. It can be for anything public order, safety, security and it can even include things like famines, earthquakes, floods, epidemics and the collapse of civil government.

“The term emergency' doesn't refer to only the actual violence or breach of peace. An imminent danger is enough.

“Emergency deals with urgency. Things can happen any time.

“Should we wait for clashes and only then we move to proclaim an Emergency? By then, it might be too late,” he says.

A point to note, he adds, is that some of the region's top terrorists, such as Jemaah Islamiah's Nordin Top and Azhari Mat Husin (both who have been killed in Indonesia), were Malaysians.

“Doesn't it occur to you why they can't operate in Malaysia? There has been no bombing of hotels, churches or of American interests here.

“In Indonesia, there have been clashes between the Muslims and Christians but that has never happened here.

“We have Acts like the EO and the ISA to thank for this.” - Star, 11/9/2011, Nazri: Keep the law, check the abuse

722 held under EO in 2011 (11/9/2011)

KUALA LUMPUR: A total of 722 people have been detained under the Emergency (Public Order and Prevention of Crime) Ordinance (EO) 1969 in the first eight months of this year.

The bulk of them are from Selangor (275), Johor (86), Kedah (58), Sarawak (56) and Kuala Lumpur (50). The smallest number is from Sabah which recorded only two detention orders (see chart).

These figures are from statistics released by the Bukit Aman's vice, gambling and secret societies D7 unit which oversees EO cases.

Detainees under Section 4(1) are held in one of the three EO detention centres in the country Simpang Renggam, Machang and Muar.

Besides detention, police also use Section 4A(1) of the EO which provides for banishment of suspects to other states/districts and restricts their residence for two years and imposes other conditions like reporting to the police on a daily basis.

From Jan 1 to Aug 22, police sent 86 people off to other places on restricted residence.

Senior Asst Comm Abd Jalil Hassan, who is the principal assistant director of Bukit Aman's D7 unit, said police were forced to use the EO in cases where they were certain the suspect had committed the crime but there was insufficient evidence for a conviction in court.

He said it was done to safeguard public interest and security.

“It is not easy to use the EO. There are many layers and checks before a detention order is signed,” he said, adding that the number of people held under the EO was negligible as compared to the overall crime rate.

Most of those detained under the EO are males, with only about 10 female EO detainees.

Last year, the total number of criminal cases was 177,520 and cases of street crime was 24,837 but total detention orders were 768 and restriction orders, 385. - Star, 11/9/2011, 722 held under EO this year