MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.
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 forthe 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)
GISBH
should not be considered an ‘organized criminal group’ like Triads and crime
gangs that commit serious offences of violence, murder, etc.
Charge them
for child abuse, AMLA offences which has been alleged in the media, if there is
sufficient proof. No to pre-conviction punishments.
MADPET (Malaysians Against Death
Penalty and Torture) is most concerned that GISB Holdings Sdn Bhd (GISBH), a
company, has now been considered an ‘organized criminal
group’ by Malaysia.
We believe that it is best and
reasonable that ‘organized criminal groups’ be
limited to Triads and criminal gangs that engage in serious crimes of violence,
extortion, murder, etc.It is not
right and dangerous to define it broadly as crimes committed by more than one
of any Penal Code offences. Is GISBH now an ‘‘organized criminal group’ in
Malaysia?
On 23/10/2024, GISBH chief
executive officer Datuk Nasiruddin Mohd Ali, his wife together others, total being
thirteen men and nine women, were charged Selayang Sessions Court on Wednesday
(23/10/12024) under Section 130V (1) of the Penal Code, for being members of
organized crime gang. The said Section 130V(1) reads, “(1) Whoever is a
member of an organized criminal group shall be punished with imprisonment for a
term of not less than five years and not more than twenty years.’
The Penal Code, in Sec 130U now says
that "organized criminal group" means a group of two or more persons,
acting in concert with the aim of committing one or more serious offences,
in order to obtain, directly or indirectly, a material benefit, power or
influence;’ Serious offences was previously defined in that law as ‘…any
offence punishable with imprisonment for a term of ten years or more…’ but that
definition was deleted by Penal Code (Amendment) Act 2014, where the amending provision
read, ‘The Code is amended in section 130U by deleting the definition of
“serious offence”.’
This means that today that if
anyone commits any crime, however small, with another or more risks the
possibility of being charged as a member of an ‘organized
crime gang’ under
Section 130V of the Penal Code, and since that Chapter VIBOrganized Crime of the Penal Code is listed as
Security offence in the First Schedule in Security Offences (Special Measures)
Act 2012(SOSMA), then SOSMA applies.
Thus, 2 persons or more engaged in
a consensual act of Sodomy, theft, murder, illegal assembly or any crimes
whatsoever are at risk of being charged for organized criminal group crimes,
and SOSMA will apply. The other crimes listed under this Chapter VIB include assisting,
harboring, consorting, etc.
MADPET (Malaysians Against Death
Penalty and Torture) is unhappy with this situation, as the 2014 re-definition
of term ‘organized criminal groups’ is just too broad, and can easily be abused
by the government of the day. This term should be restricted to triad groups,
mafia like groups and criminal gangs that commit serious criminal offences
involving violence or extortion.
‘…As of last year, 72 active
criminal organisations that posed a significant threat to national security
were operating in the country, said former director of the Federal Police Crime
Investigation Department (CID) Datuk Seri Abd Jalil Hassan…’Sun,
9/12/2023 ‘Malaysia Crime Prevention Foundation (MCPF) senior vice-chairman
Datuk Seri Ayub Yaakob said criminal activities by gangs present a significant
concern to communities. “Their activities encompass extortion, money
laundering, drug trafficking, robberies and prostitution. “Such criminal
activities undermine community well-being and jeopardize public safety…’ Should
the company GISBH justly be considered a ‘criminal organization’?
Not Police Only, But An Independent
Body To Decide Whether A Group Is A ‘Organized Crime Gang’
GISBH, in our opinion does not fall
into this category. We also need to look at the process how a group is defined
as a ‘organized crime gang’ in Malaysia. It certainly should not be done by the
police alone, but possibly some independent body that would possibly include
parliamentarians.
When any group is listed as ‘organized
crime gang’, their crimes will not only be SOSMA offences, but they also risk
becoming victims of the Detention Without Trial laws like Prevention of Crime
Act 1959(POCA)
Prevention Of Crime (Amendment of
First and Second Schedule) Order 2014 changed ‘2. Persons who belong to any
group, body, gang or association of five or more persons who associate for
purposes which include the commission of offences involving violence or
extortion.’, by substituting for the words "involving violence or
extortion" the words "under the Penal Code"; Now, it reads ‘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.’
To prevent abuse and miscarriage of
justice, more so after the 2014 amendments to the Penal Code and POCA diluted
the definition organized crime, so much so that it can now apply to anyone who
committed any crime with another or more persons, MADPET calls for an
independent body to decide whether a particular group or groups of persons ought
to be considered a ‘organized crime gang’ or NOT.
GISBH – From Child Abuse,
‘Deviant Islam’, AMLA Offences, … Now ‘Organized Crime Gang’?
Malaysians are waiting for those in
GISBH to be charged, tried and convicted with the offences that led to the ‘crackdown’
on GIBSH being child abuse, child offences, offences against under the
Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Act
2001 (AMLA Act) that justified freezing of accounts; and other crimes. Given
the impression that GISBH investigation have been long carried out, one wonders
why there is a delay in prosecution and trial?
Pre-Conviction Punishment
Must Be Abolished
SOSMA is draconian legislations,
where amongst others Parliament ousted judicial functions to decide on Bail,
which means those charged with SOSMA listed offences will languish in detention
until the end of trial, and grave injustice to those who ultimately is found
not guilty. This pre-conviction mandatory detention is a form of pre-conviction
punishment of the still presumed innocent person must be abolished.
If Charged, Prosecution Is
Ready To Start Trial And Prove Prima Facie Case
The 22 were charged at the Sessions
Court, but only the High Court has the jurisdiction to try any SOSMA cases, and
as such, they must be immediately brought before the High Court and charged,
and their trial should be expedited and completed soonest, as they are denied
Bail by law. It is disturbing that they have yet to be charged at the High
Court, and oddly the Session Court fixed a mention date on December 23, and the
question is WHY? (Bernama,
23/10/2024)
Justice Harun reminded us that the
legal principle in Malaysia ‘…is that a person should not be charged in
Court until the investigation into the case against him has been completed and
there is prima facie evidence to prosecute him of the charge. In other
words, a person should not be put in peril of a criminal trial unless the
prosecution is able to prove the case against him. To do otherwise is an
injustice...’ [Public Prosecutor V. Tan Kim San [1980] CLJU 66[1980].
This means that the prosecution is
already ready to start the trial, and prove a prima facie case against all 22,
and as such there is no reason to delay the trial. Delay will imply that
prosecution is not yet ready, which means the 22 have wrongly been charged, and
this is unacceptable.
Expedite Trials Of All In
Detention Pending Conviction – About 30,000?
MADPET calls for all criminal
trials of those who are in detention pending conviction,
who have been denied BAIL, must be expedited and finished fast, preferably not
later than 6 months from the date they have been charged. If the prosecution
charges anyone, they, the prosecution, must already ready to proceed with
trial.
In mid-2021, about 41.7% of
those in Malaysian prisons had not yet been tried, convicted and sentenced,
according to World Prison Brief, which obtains information from Malaysian
government sources. If there are about 75,000 people in Malaysian prison, that
will mean about 40% (or 30,000) are inmates who have not yet been tried,
convicted or sentenced.
Unlike the 1MDB case, which led to
legal actions being taken in many different countries, we do not see similar
reaction in the many other countries where GIBSH, its subsidiaries and related
companies are currently operating.
As the GISBH is also allegedly a
case of Islamic deviants, one wonders whether Muslim police or law enforcement
officers are able to act independently when it comes to investigation of the
other crimes not religious crimes, or is it better that the investigations are
led by officers who are not Muslims to ensure a more professional
investigation. Religion and other prejudices are known to impact investigation
and prosecution.
MADPET calls for the amendment of
law to re-define strictly the meaning ‘organized criminal groups’ to restrict
it to Triad or criminal gangs that commit serious criminal offences involving
violence or extortion. Organized criminal groups, just like Terrorist groups,
must be determined and listed in law by preferably an independent body, not
just law enforcement agencies.
MADPET reiterate the call for the
repeal of SOSMA, and, in the interim period SOSMA be amended to allow the Court
to determine the question of Bail. Now, Parliament has ousted the
court’s powers to determine the question of Bail;
MADPET calls that all criminal
trial, where the accused are in pre-conviction detention by reason of
unavailability of bail, not being able to pay in advance the Bail amount by
reason of poverty, etc. or to provide the needed surety, etc. be expedited and
completed soonest not later than 6 months. This is needed to prevent
gross miscarriage of justice, more so when the courts, after trial, finds them
not guilty. In Malaysia, no law that provides compensation for these persons
who had to unnecessarily languish in prison until the end of their trial.
In the case of the GISBH 22, MADPET
calls for them to be immediately charged in the High Court, and the trial speedily
commenced by the Prosecution, to end no later than within 6 months. We do
not want the innocent to suffer ‘pre-conviction’ punishment.
“The police investigate, the judges
deliver the sentence. Before a sentence is passed, suspects should not be
punished beforehand,”PM Anwar Ibrahim was quoted as saying at the 25th
Suhakam anniversary. (Malay
Mail, 9/9/2024). Now, pre-conviction detention is also pre-conviction
punishment before the judges deliver their sentences.
Charles
Hector
For
and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
GISB
Holdings Sdn Bhd CEO Datuk Nasiruddin Mohd Ali was among the 22 who
were brought to face charges at the Sessions Court in Selayang, on Oct
23, 2024. — Bernama pic
By Malay Mail
Wednesday, 23 Oct 2024 11:50 AM MYT
KUALA
LUMPUR, Oct 23 — GISB Holdings Sdn Bhd (GISBH) chief executive officer
Datuk Nasiruddin Mohd Ali, and his wife, Azura Md Yusof, were charged
today at the Selayang Sessions Court with being part of an organised
crime group.
National news agency Bernama reported that the son of
of Al-Arqam founder Ashaari Muhammad, Mohammad Adib At-Tarmimi, was
also charged.
Others
also charged with the offence include: Mohd Shukri Mohd Noor, Muhammad
Afdaluddin Latif, Mohamad Sayuti Omar, Mohd Fazil Md Jasin, Mohd Dhirar
Fakhrur Razi, Mokhtar Tajuddin, Muhammad Fajrul Islam Khalid, Abu
Ubaidah Ahmad Shukri, Shuhaimi Mohamed, Hasnan Abd Hamid, Muhammad Zahid
Azhar @ Nadzri, Khalilatul-Zalifah Mohammad Jamil, Nur Jannah Omar,
Hamimah Yakub, Asmat @ Asmanira Muhammad Ramly, Nurul Jannah Idris, Siti
Salmiah Ismail, Siti Hajar Ismail, and Mahani Kasim.
The thirteen
men and nine women indicated they understood the charges after they
were read separately before Judge Lailatul Zuraida Harron @ Harun.
No
plea was recorded as the Security Offences (Special Measures) Act 2012
(Sosma) was invoked, meaning the case falls under the jurisdiction of
the High Court.
All
22 are accused of committing the offence at a GISBH premises in Bandar
Country Homes, Rawang, between October 2020 and Sept 11, 2024.
The
accused, aged between 27 and 72, were charged under Section 130V(1) of
the Penal Code, which is punishable by imprisonment of between five and
20 years, upon conviction.
Lawyer
Datuk Rosli Kamaruddin later asked the judge if bail applications would
be made in her court or the High Court, to which she said the latter.
However, she said the accused were entitled to medical attention if needed.
Linked
to the banned Al-Arqam sect, GISBH is at the heart of a national child
sexual abuse and human trafficking scandal that has horrified the
country. - Malay Mail, 23/10/2024
Recalling ‘black eye’ in 1998, PM Anwar backs
protection for detainees to prevent lock-up abuses, says willing to join
Suhakam checks
(From
left) Prime Minister’s Department (Law and Institutional Reform) Datuk
Seri Azalina Othman Said, Suhakam chairman Datuk Seri Mohd Hishamudin Md
Yunus, and Prime Minister Datuk Seri Anwar Ibrahim at Suhakam’s 25th
anniversary celebration at KL Sentral on September 9, 2024. — Bernama
pic
By Debra Chong
Monday, 09 Sep 2024 8:42 PM MYT
KUALA
LUMPUR, Sept 9 — Prime Minister Datuk Seri Anwar Ibrahim today said his
government is fully committed to resolving custodial abuses and deaths
in Malaysia.
He said his personal experience 26 years ago has
shown him the necessity to ensure there is adequate protection for all
detainees from potential abuses.
“When
people talk about concerns regarding abuse and deaths in lockups,
there’s no need to convince me because I know how it feels, and we feel
it seems helpless when you’re assaulted to near death in the lockup,” he
was quoted by Bernama as saying at the 25th anniversary celebration of
the Human Rights Commission of Malaysia (Suhakam) here this evening.
The
77-year-old recalled his experience at being beaten while in police
custody in 1998 when he was deputy prime minister and detained for
suspected corruption and sodomy, which resulted in the widely reported
“black eye” incident.
Anwar said Datuk Seri Mohd Hishamudin Md
Yunus – the current Suhakam chairman – was among several people who
stepped forward to defend him back then.
“We
need to support all efforts necessary to protect the suspect or convict
in the lockup, and I’m pleased to say that both the home minister and
Inspector-General of Police support the idea.
“(But) their concern
and also my concern is that not everyone who comes out with cuts,
injuries or even dies in the lockup is necessarily due to police abuse.
That is why we need proper procedures and protection,” he was quoted as
saying.
He
said various measures have been put in place to ensure detainees’
rights, including abolishing the Internal Security Act 1960 and
mandatory death sentences, although these steps have caused some concern
in society.
Anwar also said he is willing to join Suhakam’s visits to police lockups to check on the conditions of the detainees.
“The
police investigate, the judges deliver the sentence. Before a sentence
is passed, suspects should not be punished beforehand,” he was quoted as
saying.
Other dignitaries present at Suhakam’s anniversary
celebration included Minister in the Prime Minister’s Department (Law
and Institutional Reform) Datuk Seri Azalina Othman Said. - Malay Mail, 9/9/2024
30,000 ‘innocent’ people languish in Malaysia’s overcrowded prisons – Madpet
By
Charles Hector
-
In mid-2021, about 41.7% of those in Malaysian prisons had
not yet been tried, convicted and sentenced, according to World Prison
Brief, which obtains information from Malaysian government sources.
They
are called pre-trial detainees or remand prisoners, and this means they
are innocent, as stated in Article 11(1) of the Universal Declaration
of Human Rights, which reads:
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.
The
Malaysian Prison Department disclosed on 3 February that Malaysian
prisons are packed to overflowing. It said the number of inmates in
prisons nationwide exceeds its current maximum capacity of 4,200 by 36%.
This
rate is based on international regulations. “Measures to reduce
congestion will continue with the cooperation of various agencies that
will also focus on reducing the number of remand prisoners,” the
department said in a statement.
In October 2022 Prison Department director general Nordin Muhamad revealed there were 82,539 prison inmates. Of that number, 76,336 were in prison while 6,203 had been placed in community rehabilitation programmes.
Prison
overcrowding would be resolved if the majority of these pre-trial or
remand detainees are released on bail pending the end of trial. Most of these are the poor, who simply cannot afford bail.
Denial of bail for serious crimes like murder may be justifiable.
Statutory denial of bail by laws like for all Security Offences (Special Measures) Act (Sosma)-listed offences must also end.
Let
judges decide on bail. [Those charged with] lesser offences not
resulting in death or grievous bodily harm should be entitled to bail.
30,000 ‘innocent’ in prisons
If
there are about 75,000 people in prison, that will mean about 40% (or
30,000) are inmates who have not yet been tried, convicted or sentenced.
Poverty is one of the key reasons why
those not yet tried and found guilty are in prison. They simply cannot
afford to post bail, as they have no acquaintance or family member who
are rich enough and willing to place the bail sum, which could be
thousands of ringgit, in court.
The surety who places the bail
money simply would not be able to use this money until the trial is
over. Many poor people simply cannot afford to post bail if it means
they will not be able to have access to it even in times of need.
Consider
the rich like Deputy Prime Minister Zahid Hamidi, who is out on RM2m
bail while his criminal trial proceeds. But many among the poor simply
cannot even raise the bail amount, let alone find sureties willing to
post bail sums amounting to thousands of ringgit.
In Thailand,
with the passing of the Justice Fund Act, BE 2558 (2015), legal
assistance is now provided by the government and made available to
low-income people so that they can have a proper legal defence in court
and can be released immediately on bail while awaiting their trials to
end.
Between 1 October 2021 and 31 March 2022, the fund has
approved THB190m to help low-income people related to lawsuits against
them … helped 1,425 people fight legal cases in court … also provided
money to help 473 people offer financial guarantee for release on bail.
Malaysians
Against Death Penalty and Torture (Madpet) calls on Malaysia to
consider and set up a similar fund that will give the poor access to
money that can be used for bail so that they no longer need to languish
in prison until the court decides, after trial, whether they are guilty.
Expedite trials of 30,000 detainees
Remember
that these are people who did not plead guilty and who demanded trial.
If they are to be remanded until the end of their trial, these trials
must be expedited and targeted to end within three months or sooner –
noting that after trial, they may be found to be not guilty.
As
it is, Malaysia still does not have a criminal compensation act that
will compensate the innocent victims for the detention and suffering
they endured until the court finds them not guilty.
When the innocent plead guilty…
It must be acknowledged thatmany innocent people, especially the poor, plead guilty so they can serve their sentence and move on with their life.
The reason could be poverty and the fact that if they do not plead
guilty, they would still end up as pre-trial or remand detainees in
prison for an undefined period – for no one knows when their trial will
proceed and end.
It is sad that many may be in prison for a term
longer that the sentence that might be imposed if they had pleaded
guilty fast. There is a loss of faith in the criminal administration of
justice.
As trials are delayed, many innocent pre-trial or remand
detainees in prison may still end up pleading guilty, because of delays
in trial. They choose to abandon their quest for justice, which they had hoped to get from a fair trial.
The problem thus may be with the courts – the inadequacy of judges and courts to ensure speedy trial.
Madpet
calls for an increase in the number of judges and courts so that we can
speedily reduce the pre-trial or remand detainees in prison to at least
fewer than 5% of total prison inmates.
Programmes to reduce the
prison population in Malaysia to date seem to affect only the convicted
serving their sentence, not the pre-trial or remand detainees in prison.
The
initiatives implemented since 2008 – such as the parole system,
compulsory attendance orders, resident reintegration programmes,
licenced prisoner releases and community rehabilitation programmes could
reduce overcrowding in prisons across the country – are really for the
prisoners who are already convicted and serving their sentence.
Provide lawyers to all detainees
The
Malaysian government did not provide legal aid for suspects and accused
in criminal cases until about 2012, and thus the Malaysian Bar, with
its own funds and lawyers, filled this gap.
Only since 2012,
through the National Legal Aid Foundation scheme, did the government
step in to provide financial payments for lawyers providing legal aid
for criminal matters.
However, foreigners are generally still
excluded, and they can only rely on the Malaysian Bar’s legal aid
lawyers or lawyers who come in on their own to act pro-bono or with
minimal fees.
Noting that many of the pre-trial or remand
detainees in prison today are foreigners, Madpet calls on the Malaysian
government to provide legal aid lawyers for all, as this will also help
expedite and ensure a fair trial.
The major problem with the
overcrowding in prisons is the large percentage of pre-trial or remand
detainees, and Malaysia must urgently expedite trials and take steps to
reduce the number of pre-trial or remand detainees.
Maybe the
courts should review the bail amounts and conditions of all pre-trial or
remand detainees, and the government should assist, even financially,
to ensure that no innocent person languishes in prison before they are
tried, convicted and sentenced.
After all, even Najib Razak, after conviction, was allowed out on bail, until the end of his final Federal Court appeal.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet) - ALIRAN Website
