Joint Media Statement (Abolish Detention Without Trial Day) – 27/10/2024
Malaysia Must Abolish Detention Without Trial Laws NOW, and immediately release all victims from Detention and/or Restrictions/Conditions
27th October marks the Malaysian Day for the Abolition of Detention Without Trial(DWT) Laws.
On 27/10/1987 Operation Lalang, 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 (DWT) law, the then Internal Security Act 1966(ISA) during the premiership of then Mahathir Mohamad.
Then next, major crackdown using the ISA was against persons in the Arqam movement in 1994. Ashaari Muhammad, the founder-leader of the Malaysian Islamic group Al-Arqam, along with several other members of the group, was arrested in Thailand and subsequently returned to Malaysia, where he was detained and/or restricted under the Internal Security Act (ISA). Ashaari remained a victim of ISA from 1994 until 2004, whilst in the later part, he was said to have been restricted to Labuan.
Detention and Restrictions/Conditions Under DWT Laws
Besides being detained in Detention Centers, these Detention Without Trial laws also provide for the imposition of ‘…restrictions and conditions…, where the victim shall ‘…(a) he shall be required to reside within the limits of any State, district, mukim, town or village specified in the order;(b) he shall not be permitted to transfer his residence to any other State, district, mukim, town or village, as the case may be, without the written authority of the Board; (c) except so far as may be otherwise provided by the order, he shall not leave the State, district, mukim, town or village within which he resides without the written authority of the Chief Police Officer of the State concerned;(d) he shall at all times keep the Officer in Charge of the Police District in which he resides notified of the house or place in which he resides; (e) he shall be liable, at such time or times as may be specified in the order, to present himself at the nearest police station; (f) he shall remain within doors, or within such area as may be defined in the order, between such hours as may be specified in the order, unless he obtains special permission to the contrary from the Officer in Charge of the Police District; (g) except so far as may be otherwise provided by the order, he shall not be permitted to enter any State, district, mukim, town or village specified in the order; (h) he shall use only equipment and facilities of communication which are declared to and approved by the Chief Police Officer of any State concerned; (i) except so far as may be otherwise provided by the order, he shall not access the internet; (j) he shall keep the peace and be of good behavior; (k) he shall enter into a bond, with or without sureties as the Board may direct and in such amount as may be specified in the order, for his due compliance with the restrictions and conditions imposed on him by the order; (l) he shall be attached with an electronic monitoring device.….’
Violations of Restrictions/Conditions an Offence
Now, if the persons so restricted violates any of the condition or restriction, it is a criminal offence. Section 13(5) POTA states that, ‘…Any restricted person who fails to comply with any restriction or condition imposed on him under this section commits an offence and shall be punished with imprisonment for a term not exceeding ten years and not less than two years…’
Like Detention Orders, these Restriction Orders can be perpetually renewed, every 2 years.
ISA and the EO repealed, but new Detention Without Trial laws enacted
On 31 July 2012, the ISA was repealed, when Security Offences (Special Measures) Act 2012(SOSMA) came into force. SOSMA is not a detention without trial act, as all those arrested for committing any SOSMA listed offence have a right to Trial. A law can be repealed by a specific repealing law, or through a provision in any other law. The later happened with the ISA, as section 32 of SOSMA repealed Internal Security Act 1960.
Victims of the then ISA also included present Prime Minister Anwar Ibrahim and Human Rights Defender victims like Theresa Lim Chin Chin, Cecilia Ng, Chee Heng Leng, Irene Xavier, Kua Kia Soong, Harrison Ngau, Chandra Muzaffar, Bro Anthony Rogers, Mohd Nasir Hashim, Mohamad Yunus and Meenakshi Raman. Politician victims included Mohamad Sabu(now President of Amanah, a member of Pakatan Harapan[PH]), Lim Kit Siang, Lim Guan Eng(now Chairman of DAP, a member of PH), Mat Sabu, Tan Seng Giaw, P. Patto, and Karpal Singh. Joshua Hilmy, which SUHAKAM found to be a victim of enforced disappearance was also a victim of ISA during Ops Lallang.
Emergency (Public Order and Prevention of Crime) Ordinance 1969)[EO], another Detention Without Trial Law came to an end when Malaysia finally put an end to the then existing 3 Declarations of Emergency. With that the Emergency ended and set in motion the constitutional provision to also end, within a period of six months, all laws passed under the powers given to the Government to enact emergency–related legislation. The six months period expired on June 19, 2012, ending the operation of the EO once and for all.
We recall the infamous EO Six – six activists from Parti Sosialis Malaysia, including Dr Jeyakumar Devaraj, now former Member of Parliament for Sungai Siput. They were released after a month and not charged with any crime.
Return of Detention Without Trial Laws – POTA and POCA
A new Detention Without Trial Act that was then enacted, being the Prevention of Terrorism Act 2015(POTA).
The Prevention of Crimes Act 1949 (POCA), was amended several time from 2014 to make it a Detention Without Trial, now even worse compared to the previous ISA.
Dangerous Drugs (Special Preventive Measures) Act 1985 is the other DWT law.
Rule of Law and Criminal Administration of Justice
If a person is suspected of a crime, he is charged and accorded a Fair Trial, and one is presumed innocent until found guilty in a court of law. 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.’
All the normal standards to prevent miscarriage of justice does not apply when it comes to these draconian Detention Without Trial laws.
Cannot Challenge In Court The Reasons Used In DWT laws
The victim cannot even go to court to challenge the very reason he is arrested, detained and/or restricted. The court’s jurisdiction to hear such cases is also ousted by law, and thus even the court cannot ensure that justice be done. Note that Article 5(2) of the Federal Constitution states ‘(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.’
Section 19 of POTA says, (1) 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, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.’ By ‘question of compliance with any procedural requirement’, that means whether the procedures have been followed or not – No court can look to see whether the reasons for the detention or restriction is justified or not. It means even a false reason can be used to detain/restrict victims of Detention Without Trial.
POTA says that , "judicial review" includes proceedings instituted by way of—(a) an application for any of the prerogative orders of mandamus, prohibition and certiorari; (b) an application for a declaration or an injunction; (c) a writ of habeas corpus; and (d) any other suit, action or legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act…’
Uncertainty of duration of detention and/or condition/restrictions
In most crimes, the law provides for the sentence, and the courts, on conviction decide on the sentence, like how many years in prison. There is certainty as to sentence, and the convicted criminal knows when he/she will be free. However, in Detention Without Trial laws, how long you languish in detention, or is subjected to restrictions is determined by the Minister (or the relevant Board).
in Malaysia, Loh Ming Liang of Johor experienced detention without trial for 16 years. It is widely recognised that the longest-serving detainee under detention without trial was Chia Thye Poh of Singapore. He had been deprived of his personal liberty by the Singapore government for a total period of 32 years.
The victims of Detention Without Trial are not criminals who have been proven guilty beyond reasonable doubt in court, and neither on a lower standard of balance of probabilities. There is no trial, and they suffer ‘punishment’ for so long at the government desires. They also presumably do not even have the right to apply for PARDON from the King/Rulers – more so, since they are NOT convicted prisoners serving out a sentence.
Time for Abolition of all Detention Without Trial Laws in Malaysia
Prime Minister Anwar Ibrahim, at a session in the Bar Council after his acquittal and release by the Federal of the 1st Sodomy case, did say that he opposed Detention Without Trial laws. He said that, whilst in then Mahathir’s Cabinet, he opposed the use of ISA during the 1987 Ops Lallang and the 1994 Arqam ISA operation. He said he informed the then Prime Minister of his opposition.
Many in the Pakatan Harapan-led government of the day have experienced the unjust Detention Without Trial laws, and it is only reasonable that they now ACT speedily and abolish all existing Detention Without Trial laws.
We, the undersigned 6 groups, call for the immediate abolition of Detention Without Trial laws - Prevention of Terrorism Act 2015(POTA), Prevention of Crimes Act 1949 (POCA) and Dangerous Drugs (Special Preventive Measures) Act 1985.
Anyone who commits a crime, should be accorded a FAIR Trial, and if convicted, sentenced according to law.
We call for the immediate and unconditional release of all persons in detention by reason of these Detention Without Trial Laws. We also call for the removal of conditions/restrictions imposed on possibly thousands of persons by these DWT laws.
Charles Hector
For and on behalf of the 6 listed Groups below
ALIRAN
Centre for Orang Asli Concerns (COAC)
MADPET (Malaysians Against Death Penalty and Torture)
North South Initiative (NSI)
Pergerakan Tenaga Akademik Malaysia (GERAK)
WH4C (Workers Hub for Change)
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