Wednesday, March 22, 2017

Bar Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent

Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent

(1) The case of Siti Noor Aishah Atam highlighted the very real possibility that innocent persons are wrongly made victims of draconian laws that allow for detention without trial.  Most victims are totally denied the right to a fair trial, but Siti Noor Aishah Atam, despite being acquitted by the courts, was still was subjected thereafter to detention without trial laws.

Detention Without Trial Laws

(2) Detention without trial continues to exist in Malaysia despite the fact that the draconian Internal Security Act 1960 (“ISA”) and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 have been repealed.
(3) The Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”), which came into force on 31 July 2012 vide section 32(1), and repealed the ISA.  The Emergency (Public Order and Crimes Prevention) Ordinance 1969 was also repealed in 2013.

(4) The Dangerous Drugs (Special Preventive Measures) Act 1985, which provides for detentions and/or restrictions without trial, still remains.  Vide Resolution under subsection 1(4) [PU(B) 241/2015], this Act was extended for a further period of five years with effect from 15 June 2015.

(5) Other laws that provided for detention without trial today include the Prevention of Crime Act 1959 (“POCA”), following amendments in 2014, and the new Prevention of Terrorism Act 2015 (“POTA”).

(6) Vide Prevention of Crime (Amendment And Extension) Act 2014, a new Part IVA entitled “Detention Orders” was inserted, which now allows for detention without trial orders.  Section 19A, amongst others state, “. . . . (1) The Board may, after considering the report of the Inquiry Officer . . . . and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime . . .”.

No Judicial Review to Challenge the Reasons One is Victimised

(7) Like the now repealed draconian ISA, there shall be no judicial review with regards the reasons or justification of detention and/or restriction orders under these detention without trial laws, but only “in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.  Section 15A(1) POCA states that “ . . . . 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”.

(8) POCA’s usage which was originally limited for triads or crime gangs have been significantly extended vide Prevention of Crime (Amendment of First and Second Schedule) Order 2014 [PU(A) 122/2014], which came into force in 2 May 2014.  Whilst previously limited for those persons who belong to any group, body, gang or association of 5 more persons who associate for purposes which include the commission of offences “involving violence or extortion” — it was extended to all offences under the Penal Code, and persons who also consort with these groups of two or more persons.  As such, now any person who allegedly commits any Penal Code offence with two or more persons can now be subjected to POCA, irrespective of whether it involved violence or not.

(9) POCA now can also be used against persons allegedly involved in the trafficking in dangerous drugs, in trafficking of persons and smuggling of migrants, and those who benefit from such actions.  It can be used against those who allegedly engage in the commission or support of terrorist acts under the Penal Code.  It can also be used for persons who recruit, or agree to recruit, another person to participate in the commission of an offence.

(10) POCA can also be used against “. . . . all persons who, being not less than twenty-one years of age, have since attaining the age of seventeen been convicted on at least three occasions of offences involving dishonesty or violence”.

(11) The breadth of the application of POCA is draconian, and it opens to the possibility of unchecked abuse by the police, public prosecutors and the Government.  It undermines the safeguards to prevent a miscarriage of justice.

Remand Devoid of Judicial Discretion

(12) With regard to post arrest remand for the purposes of investigation, Parliament amended the Criminal Procedure Code, restricting also the permissible length of remand orders by Magistrates (section 117 of the Criminal Procedure Code), where even “if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application”.  The Magistrate is empowered to exercise his/her judicial discretion, after considering the representations made either by the accused himself; or through a counsel of his choice; the representations of the police or the prosecutors; including also considering what the police had done since arrest as contained in the police diary.  Now, even if dissatisfied with the decision of the Magistrate, there is still the possibility of revision by the High Court Judge.

(13) Parliament amended the law concerning remand, possibly to prevent abuse of remand but all these safeguards are ignored if POCA, POTA and/or SOSMA is/are used.

(14) When POCA is used, all that is needed is a production of a statement in writing signed by a police officer not below the rank of Inspector, stating that there are grounds for believing that the name of that person should be entered on the Register, and the Magistrate has no choice but to remand the person in police custody for a period of 21 days. (Before the 2014 amendment, the required statement was of a police officer not below the rank of Assistant Superintendent — now just an Inspector will suffice.)  Judicial discretion of the Magistrate in the remand proceeding is ousted.  The right to be heard of the suspect and/or his lawyer is denied.

(15) For a further remand, all that is required is a statement in writing signed by the Public Prosecutor and a statement by a police officer not below the rank of Assistant Superintendent, the suspect will be remanded for a further period of 38 days.

(16) The same when POTA is used, judicial discretion of the Magistrate is ousted.  On the production of the statements by the police, and subsequently the police and public prosecutor, the Magistrate has no choice but give the remand order of 21 days, and thereafter 38 days.  The right to be heard is denied, and the judicial discretion of a Magistrate is ousted.

(17) When SOSMA is used, there is not even the need to bring the suspect before the Magistrate.  A police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than 28 days, for the purpose of investigation.

Right to Consult and/or Be Represented by Lawyer Curtailed and/or Denied to Persons Subject to Inquiry and/or Witnesses

(18) Under POCA, the right to be represented by a lawyer during the inquiry is limited, as stated in section 9(5): “Neither the person who is the subject of the inquiry nor a witness at an inquiry shall be represented by an advocate and solicitor at the inquiry except when his own evidence is being taken and recorded by the Inquiry Officer.”

(19) There is not even the right to be present and/or represented during the inquiry when evidence is taken from other witnesses and/or sources, let alone the right to cross-examine let alone challenge alleged evidence against the victim of these detention without trial laws.

(20) It must be noted, that the right to be represented by a lawyer is denied to any person/s in detention and/or confined in prison when the Inquiry Officer conducts his inquiry.  Section 9A(2) states: “(2) Nothing in this section shall authorise the attendance of the subject of the inquiry or his advocate and solicitor or representative, if any, at the place of detention or prison.”
(21) There is also no right of representation when the Inquiry Officer submits his report to the Board of Inquiry.  There is also no right to even make a submission for the consideration of the Inquiry Officer and/or Board of Inquiry before a final decision is made.  Section 9(6) states: “The Public Prosecutor may appear at an inquiry to assist the Inquiry Officer.”  But no such right to the victim or his lawyer.

(22) The process is grossly unjust, and an innocent victim like Siti Noor Aishah Atam can easily and/or unjustly be deprived of his/her liberty, rights and freedom. 

Danger of Abuse, Corruption and Miscarriage of Justice

(23) Corruption has always been suspected when it comes to the police and/or prosecutors.  This possibility of corruption is escalated when detention without trial laws and SOSMA are used, especially when judicial monitoring of administrative decisions is stifled and/or excluded.  The right to be heard and the right to a fair trial are denied.

(24) The Malaysian Anti-Corruption Commission (“MACC”) stated that about 54% of civil servants under the age of 40 are corrupt (New Straits Times and Malaysiakini, 8 Mar 2017), and this is most disturbing.

(25) When persons are not charged, tried and convicted, there is also the possibility that others involved in the crime will never be revealed, and will simply escape having to face justice.

(26) Detention without trial laws encourage a lackadaisical attitude and inefficiency in the police force and other enforcement and prosecution officers, as there is now no more the need to find sufficient evidence as required by law to prove in court that one is guilty of a crime.  The case of Siti Noor Aishah Atam is evidence of this, when even the books for which she was arrested for in the first place were not even books banned in Malaysia.  The courts in that case acquitted Siti at the close of the prosecution case, as the prosecution failed to prove a prima facie case.

(27) When innocent persons are placed under detention without trial, it is also possible that the true criminals will never be caught and brought to justice.  Police may just close the files, believing that they have managed to get the real perpetrator, when the persons in detention may be some innocent person.  The belief of the police and/or prosecution in the guilt of a person is immaterial, as what is important is for the court to decide on the guilt of an accused person, also noting the large number criminal trials that have ended with acquittals.

(28) Victims of crimes also deserve to see justice be done, and this can only happen if there is a fair trial, a conviction and a sentence.  In the absence of a conviction, victims and their families are also denied the possibility of subsequently commencing a legal action claiming for damages and/or compensation.

(29) With the unavailability of judicial review of the reasons or justifications of the actions and/or decisions of the police, public prosecutors and/or the Board of Inquiry, including the imposition of remand orders, detention orders and/or restrictions / conditions on the victims of POCA and such detention without trial laws, the likelihood of miscarriage of justice is extremely high.  Innocent persons will be wrongly deprived of their liberty, freedom and human rights.
Lost Right to Rely on the Double Jeopardy Principle

(30) Worse still, for these victims of detention without trial laws is that they can always at any time during their detentions and/or any time later, be charged, convicted in court and sentenced for, the very same offences for which they were subjected to detention and/or restrictions / conditions under POCA and such detention without trial laws. 

(31) Section 19G of POCA states: “The detention of any person under this Part shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention.” 

(32) The double jeopardy principle that prevents an accused person from being tried again on the same charge, following a valid acquittal or conviction, will not apply.

Siti Noor Atam Aishah — Proof of the Abuse of SOSMA and POCA?

(33) Siti Noor Aishah Atam — a 29-year-old Malaysian woman and a University of Malaya Masters of Usuluddin (Islamic Studies) student — was arrested on 22 Mar 2016, for the alleged possession of 12 books related to on Jemaah Islamiyah (“JI”), Islamic State (“IS”) and Al-Qaeda (“AQ”) at her residence.  She was charged under section 130JB(1)(a) of the Penal Code, tried, acquitted and was released by Judicial Commissioner Datuk Mohamad Shariff Abu Samah in the High Court [Di dalam Mahkamah Tinggi Jenayah 4 Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur Perbicaraan Jenayah No: 45SO-7-5/2016].

(34) The Public Prosecutor at the High Court applied that Siti continue to be detained under SOSMA pending the filing of the appeal, which the court denied.  A BERNAMA report carried by Sinar Harian stated: “. . . . Mahkamah turut menolak permohonan Timbalan Pendakwa Raya Mohamad Mustaffa P. Kunyalam untuk menahan Siti Noor Aishah di dalam penjara mengikut Seksyen 30(1) Akta Kesalahan Keselamatan (Langkah-langkah Khas) 2012 (SOSMA) sementara menunggu rayuan difailkan oleh pihak pendakwaan terhadap pembebasan tertuduh. . . .’ (BernamaSinar Harian, 29 Sept 2016).

(35) It was reported (Malaysiakini, 29 Nov 2016), that Siti Nor Aishah, after release was thereafter arrested and detained under POCA until Saturday (26 Nov 2016), and was then fitted with an electronic monitoring device (“EMD”), and asked to report every Friday at the police station in Bukit Aman for eight weeks.

(36) She would also most likely been subjected to Restriction Orders (or Police Supervision Orders) under POCA, 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.

(37) The re-arrest and detention under POCA in the case of Siti Noor Aishah Atam may also be an act of contempt of court.

(38) Siti Noor Aishah Atam’s case provides a good example, to suggest that many (if not all) of the persons who are currently detained and/or restricted may be innocent. 

Compensation for Deprivation of Liberty, Freedoms and Rights

(39) A person arrested and detained by police or the authorities suffers more than the loss of liberty.  It also affects his/her employment and/or income generation activities.  It impacts not just on his/her good name, and also causes much suffering to the family and dependents, including children.

(40) All the more unjust is that these detention and/or restrictions are with regard to a person not being accorded even the right to heard and a fair trial — not even the right to a judicial review of the reasons for his loss of liberty.

(41) As such, those under detention without trial laws must be presumed to be innocent.  The Universal Declaration of Human Rights, in Article 11, 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.”

(42) There is a need for the provision of monetary compensation and damages caused by the unjust deprivation of liberty by the State.  It is most unjust for these innocent persons not to be compensated for their loss of liberty, freedom and rights.  There are provisions in other jurisdictions.

(43) The provision of such compensation payable by the Government would also deter police officers and others from unnecessarily detaining persons using POCA, POTA and/or SOSMA.


(44) The Malaysian Bar opposed the passing of the Essential (Security Cases) Regulations 1975 (“ESCAR”), which were promulgated to amend the procedural and evidential rules in relation to trials for offences against national interest.  The Regulations brought draconian changes in the basic rules of evidence and the judicial discretion of the courts in meting out sentences.

(45) In October 1977, the Malaysian Bar held an Extraordinary General Meeting (“EGM”) to discuss the ESCAR, and resolved to advise all Members of the Bar not to appear in trials under the ESCAR.

(46) The SOSMA is similar to the ESCAR, and the Malaysian Bar need to strongly oppose its usage, and call for its repeal.

Therefore, it is hereby resolved:

(A) That the Malaysian Bar call on the Malaysian Government to repeal all detention without trial laws, including the Prevention of Crime Act 1959 (“POCA”), Prevention of Terrorism Act 2015(“POTA”) and the Dangerous Drugs (Special Preventive Measures) Act 1985 be repealed;

(B) That the Malaysian Bar call on the Malaysian Government to immediately and unconditionally release all those currently detained and/or restricted under detention without trials including Siti Noor Aishah Atam;

(C) That the Malaysian Bar call on the Malaysian Government to repeal the Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”); 

(D) That the Malaysian Bar call on the Malaysian Government to enact laws that provide for compensation for all persons deprived of liberty by reason of detention and/or restrictions imposed under detention without trial laws and/or SOSMA;

(E) That the Bar Council do whatsoever deemed necessary to ensure that detention without trial laws and SOSMA are repealed, that all victims of these laws are immediately and unconditionally released, that the SOSMA is repealed; and
(F) That the Bar Council do whatsoever deemed necessary to ensure that laws are enacted to ensure just compensation is provided for all those deprived of liberty by actions of the State in the administration of criminal justice.

The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.

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