Media Statement – 9/7/2016
MADPET SAYS THAT ALLEGED ‘TERROR’ SUSPECTS SHOULD BE TRIED SPEEDILY IN
OPEN COURT, AND NOT BE SIMPLY SUBJECTED TO DETENTION WITHOUT TRIAL
- Abolish Detention Without Trial -
MADPET (Malaysians Against Death
Penalty and Torture) is concerned about what is happening to the many suspects who
have been arrested/detained for alleged involvement in ‘terrorist’ and/or
criminal activities, including the 15 who have just been arrested in connection
with the explosion at the front porch of Movida, a nightspot in IOI Boulevard
in Puchong, on 28/6/2016 which resulted
in 8 people being injured (Star,
4/7/2016).
In March 2016, it was also reported
that '…more than 160 people suspected of having ties to ISIS have been detained
in Malaysia in the past two years...' (The
Guardian, 25/3/2016).
As such, Malaysia must disclose as
to how many of persons are presently being detained without trial, how many are
being subjected to without trial ‘Restriction Orders’ or similar orders, how
many of such persons have been charged in court, and how many have been
released.
MADPET notes that Malaysia disappointingly
amended and/or enacted new laws in 2014 and 2015 that allows for Detention Without
Trial (DWT), whereby a person without being accorded the right to a fair trial,
can be subjected to administrative Detention Orders ‘for a period not exceeding
two years, which can thereafter be renewed for a further period not exceeding
two years at a time’, for any number of times.
The amendments to the Prevention
of Crime Act 1959[POCA], that came into force on 2 April 2014, and the enactment
of the Prevention of Terrorism Act 2015[POTA], which came into force on 1
September 2015, both allows for Detention Without Trial.
Judicial review is a necessary check
and balance in government, which allows the judiciary to review the lawfulness,
fairness and reasonableness of a decision or action of the legislative and/or
executive branches of government. What is worse is that people detained by
reason of such Detention Without Trial Orders do not even have the right to
challenge the alleged reasons/justifications of the authorities who made the
said Detention and/or Restriction Order in a court law by way of judicial
review.
Besides Detention Orders, there
are also provisions for ’Without Trial’ Restriction and/or Police Supervision
Orders. These Restriction Orders could be ‘for a period not exceeding five
years, which can thereafter be renewed for a further period not exceeding five
years at a time’. These orders violate one’s human rights and freedoms – movement,
communication, association, access to information/internet, etc.
These Detention and/or Restriction
Orders are made, without even having first the need to prove that a person is guilty
beyond reasonable doubt in a fair trial. Like the Detention Orders, one cannot
go for Judicial Review to challenge the reasons or grounds for these Restriction
Orders.
Article 10 of the Universal
Declaration of Human Rights (UDHR) states that, ‘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) goes on to state that, ‘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.’
Hence the detaining of persons,
or the imposition of restrictions to one’s freedoms and/or liberties, without
according the person his/her right to a fair trial is a gross violation of one’s
basic human rights, and may also further be considered to be wrongful ‘arbitrary
detention’ (Art. 9 UDHR) and possibly even a violation of Article 12 which
states that, ‘No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honour and
reputation’.
A Fair Trial is the best way of
separating the guilty from the innocent and protecting against injustice. It
also prevents governments from abusing their power. The failure to charge and
prosecute in open court also raises the concern that there really is no
sufficient evidence, if any, to prove the person guilty.
It also encourages a lacksadical
attitude amongst the police and law enforcement authorities, as there is really
now no obligation to do a comprehensive investigation or to find sufficient admissible
evidence to prove the guilt or innocence of a suspect, when they can always
easily resort to these ‘without trial’ options. Given the fact that the reasons
for these Detention and/or Restriction Orders cannot be reviewed in court, it makes
it extremely dangerous that there may be miscarriage of justice, and innocent
persons may be subjected to wrongful detention, wrongful deprivation or his/her
freedoms and liberties, and wrongful tarnishment of his/her honour and/or
reputation.
Speedy investigation and action
by the police and/or government is always commendable, but if there is going to
be a denial of human rights including the right to a fair trial, there is always the risk that the guilty may
still be out there whilst the innocent suffer the consequence of a miscarriage
of justice.
MADPET urges that all these ‘suspects’ arrested be accorded all rights
normally accorded to persons arrested, detained and subjected to criminal
justice system in Malaysia which includes the right to consult and be defended
by a legal practitioner of his choice, and the right to a fair trial;
MADPET calls for the immediate and unconditional release of all those currently
being detained under Detention without Trial laws; and
MADPET also calls for the immediate repeal of all such Detention without
Trial laws including the Prevention of Terrorism Act 2015.
Charles
Hector
For and on behalf
of
MADPET (Malaysians Against Death Penalty and
Torture)
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