36 kumpulan menuntut kebebasan Siti Noor Aishah Atam, pemansuhan Akta POCA, POTA dan SOSMA,...
Pos berkenaan sebelum ini:-
Siti Noor Aishah Atam - victim of SOSMA, found Not Guilty by High Court, then re-detained under POCA?
Siti Noor Aishah Atam - Alasan Penghakiman Mahkamah Tinggi - Mahkamah Bebas Polis Tangkap Lagi Guna POCA??
Release Siti Noor Aishah Atam from Poca restrictions
Published Updated
We, the 36 undersigned civil society organisations, trade unions and
groups, are appalled to hear about the case of Siti Noor Aishah Atam, a
29-year-old Malaysian woman, who was arrested for the alleged possession
of 12 books, detained, tried and acquitted by the court, and thereafter
re-arrested and detained under the Prevention of Crime Act 1959 (Poca).
We are shocked that Siti Noor Aishah, despite being acquitted and
released by the court, which also denied the prosecution’s application
to continue to detain her under the Security Offences (Special Measures)
Act 2012 (Sosma) pending appeal, was re-arrested and detained, and has
now been imposed with restriction orders, which included being fitted
with an electronic monitoring device (EMD).
The case is one of the very few cases of victims of Poca which had
gone to trial, for most victims of Poca and other detention without
trial laws never get the opportunity to get a trial.
There are now more than a thousand victims of Poca, Prevention of
Terrorism Act (Pota) and other detention without trial laws, who have
been or are now still detained without trial and/or subjected to
restriction orders, without any opportunity to even challenge the
alleged reasons for their detention or restrictions, a gross injustice
is being done to them, as many of whom like Siti Noor Aishah Atam would
more than likely be innocent.
These victims have certainly never been proven guilty. As at Sept 30, 2015, 975 people have been detained under Poca. (Malaysiakini, Nov 29, 2016)
Without the right to judicial review, including habeas corpus
application, the risk and possibility that the innocent are all being
now denied their liberty and rights is totally unacceptable. It is a
denial of the fundamental human rights, including the right to ‘a fair
and public hearing by an independent and impartial tribunal’ (Article
10, Universal Declaration of Human Rights).
Article 11(1) of the UDHR also states that “Everyone charged with a
penal o?ence 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.”
Case of Siti Noor Aishah Atam
Siti Noor Aishah, who was arrested on March 22, 2016, have been a victim of Sosma, and now continues to be a victim of Pota.
On March 22, 2016, Siti Noor Aishah, a Universiti Malaya Master of
Usuluddin (Islamic Studies) student, was arrested for allegedly having
in her possession, books on Jemaah Islamiah (JI), Islamic State (IS) and
al-Qaeda (AQ) at her residence at Lot 1241, Jalan Lapangan Terbang
Sura, Dungun, Terengganu at 12.25pm, an offence under the Penal Code.
On April 19, 2016, she was charged in the Magistrate’s Court in
Kemaman, Terengganu under Section 130JB(1)(a) of the Penal Code which
states that “whoever- (a) has possession, custody or control of; or (b)
provides, displays, distributes or sells, any item associated with any
terrorist group or the commission of a terrorist act shall be punished
with imprisonment for a term not exceeding seven years, or with fine,
and shall also be liable to forfeiture of any such item.”
The case was then transferred to the High Court in Kuala Lumpur.
On July 25, 2016, she pleaded not guilty and claimed trial at the High Court.
On Sept 29, 2016, Judicial Commissioner Mohamad Shariff Abu Samah, at
the close of prosecution’s case, acquitted and released her without
requiring Siti Noor Aishah to enter her defence as the court found that
the prosecution had failed to prove a prima facie case against the
accussed [“... pihak pendakwaan telah gagal untuk membuktikan suatu kes
Prima facie terhadap OKT...” (extract from the Court Judgment)]
The Judge, amongst others, in his judgment said, “... Apalah ertinya
pemilikan buku-buku tersebut yang dikatakan mempunyai kaitan dan
unsur-unsur pengganas menjadi suatu kesalahan keatas sesiapa yang
memiliki buku-buku tersebut, walhal pihak Kementerian Dalam Negeri gagal
menjalankan fungsi sebenarnya untuk mengharamkan dan seterusnya
menghapuskan buku-buku...” (What is the meaning when possession of the
said books said to have links and elements of terrorism is an offence
against those found in possession of such books, when the Home Affairs
Ministry fails to even ban and thereafter destroy such books.)
It was also reported that the Court, after acquitting Siti Noor
Aishah, also rejected the application of the deputy public prosecutor to
continue to detain Siti Nor Aishah in prison pursuant to Section 30(1)
Security Offences (Special Measures) Act 2012 (Sosma) whilst waiting for
the appeal to be filed by the prosecution against the decision to
acquit. (Bernama - Sinar Harian, Sept 29, 2016)
It was recently reported in the media (Malaysiakini, Nov 29, 2016),
that Siti Nor Aishah was thereafter arrested and detained under the
Prevention of Crime Act 1959 (Poca) until Saturday (Nov 26, 2016), and
has now been fitted with an electronic monitoring device (EMD), and
asked to report every Friday at the police station in Bukit Aman for
eight weeks.
She is also most likely subjected to a restriction order (or police
supervision orders) under Pota - which could include inhibitions with
regard to movement, restrictions as to the people she can communicate
with, and even restrictions with regard access to the Internet and
social media.
Security Offences (Special Measures) Act 2012 (Sosma)
This law provides for the uses of ‘special measures’ in security
offences cases. After arrest, for the purpose of investigation, the
police can normally hold a suspect for 24 hours, and if more time is
required, the police need apply to a magistrate for further remand in a
hearing where the suspect can also be represented by a lawyer.
The magistrate will consider the reasons advanced and the
submissions, and thereafter, if justified, may allow further remand for a
specific number of days. If further remand is needed after that, the
police will have to apply again to the magistrate, and the maximum
number of days of remand permitted is 14 days.
However, when the police resort to Sosma, there is no more the need
to apply to the magistrate for further remand beyond 24 hours, and as
such there is no more judicial intervention, which acts as a necessary
check and balance to prevent abuse of detention powers by the police.
Sosma only requires the authority of a police officer of the rank of
Superintendent or above, to be able to detain a suspect for up to 28
days. In Siti’s case, this provision of Sosma was most likely used, as
she was only brought to court to be charged on April 19, 2016, which is
certainly more than the usual 14 days. Sosma was also used recently in
the case of human rights defender Maria Chin Abdullah.
In the trial, it was also disclosed by the prosecutor in the
judgment, that Sosma was also used for the purposes of investigation,
and it was also used during the trial. Sosma allows the use of evidence,
which in normal trials would not be admissible by reason of
requirements in the Evidence Act and the Criminal Procedure Code.
Prevention of Crime Act 1959 (Poca)
Poca is a detention without trial law, like the former Internal
Security Act (ISA), which allows for administrative detention and/or
restrictions to be imposed on a person. The Act also denies victims of
Poca the ability to challenge the reasons and/or justification for the
said detentions/restrictions/police supervision orders in a court of
law.
The ousting of the courts’ ability to review the reasons of the
government for arresting, detaining and/or imposing restrictions only
encourages abuse, and injustice against the innocent.
The use of Poca to detain, and now impose restrictions on rights and
freedoms of Siti Nor Aishah, especially after the High Court had heard
her case, and acquitted her is wrong.
Additionally, given the fact that the court denied the application by
prosecution to continue to detain her until the appeal against her
acquittal, we are of the opinion that the subsequent use of Poca to
arrest and detain her may amount to contempt of court, and certainly a
gross disrespect of the court.
The Poca amendments in 2014 and 2015 extended its usage was extended
from just persons involved in triad gangs, to now also include persons
allegedly involved in drug trafficking, trafficking of human persons,
smuggling of migrants and even terrorism offences. It also covers crimes
committed by three or more persons.
It must also be highlighted, that Poca clearly states that the
detention under Poca “...shall be without prejudice to the taking of any
criminal proceeding against that person, whether during or after the
period of his detention...” That means that a person detained on the
basis of some allegation, can at a later date also find himself again
being charged in court for a crime based on the same allegations.
Poca, the Prevention of Terrorism Act 2015 (Pota) and other laws that
allow for detention/restrictions without trial clearly violates human
rights, and they must be abolished.
THEREFORE, WE
URGE immediate and unconditional release of Siti Noor Aishah Atam
from any detention or restriction (police supervision) orders under the
Prevention Of Crime Act 1959 (Poca) or any such detention without trial
laws;
URGE the immediate and unconditional release of all persons currently
being detained/restricted under the Prevention of Crime Act 1959 (Poca)
or any such detention without trial laws;
URGE the repeal of the Prevention of Crime Act 1959 (Poca),
Prevention of Terrorism Act 2015 (Pota) any such detention without trial
laws;
URGE the repeal of the Security Offences (Special Measures) Act 2012 (Sosma).
Charles Hector
For and on behalf of the 36 undersigned civil society organisations, trade unions and groups
Aliran
Ajar Timor-Leste
Association of Domestic Home and Maquila Workers (ATRAHDOM), Guatemala
Association of Human Rights Defenders and Promoters (HRDP), Myanmar
Banglar Manabadhikar Suraksha Mancha (Masum), India
Bersih
Centre for Prisoners’ Rights, Japan
Centre for Alliance of Labor and Human Rights (Centra), Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign (CCC)
Community Development Centre (CDC)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
Institute for Development of Alternative Living (Ideal)
Japan Innocence and Death Penalty Information Centre
Jaringan Rakyat Tertindas (Jerit)
Jaringan Kampung Orang Asli Semenanjung (JKOASM)
Kesatuan Kebangsaan Anak Kapal Kabin Malaysia (Nufam)/National Union of Flight Attendants Malaysia
Malaysians Against Death Penalty and Torture (Madpet)
Malaysian Physicians for Social Responsibility
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW), Malaysia
North South Initiative
Odhikar, Bangladesh
Oriental Hearts and Mind Study Institute (OHMSI), Malaysia
Pemuda Persatuan Hokkien Selangor & KL
Persatuan Komuniti Prihatin Selangor & KL (Prihatin)
Persatuan Sahabat Wanita Selangor
Philipping Alliance of Human Rights Advocates (Pahra)
Programme Against Custodial Torture & Impunity, India
Society for the Promotion of Human Rights, Malaysia (Proham)
Pusat Komas
Saya Anak Bangsa Malaysia (SABM)
Suara Rakyat Malaysia (Suaram)
Tenaganita
Workers Hub For Change (WH4C)
Women's Centre for Change, Penang (WCC)
Yayasan Lintas Nusa Batam, Indonesia
Sumber: Malaysiakini, 20/12/2016
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