Wednesday, November 15, 2017

Siti Noor Aishah Atam - Release her, and Repeal section 130JB Penal Code?

In my opinion, Siti Noor Aishah Atam should be released, and the current section 130JB of the Penal Code need to be repealed (or at least amended). For sure, books, articles...(especially those not banned in Malaysia) should not be considered '...items associated with any terrorist group or the commission of a terrorist act...'. 'Items' should mean guns, explosives, letters/tapes with instructions to commit acts, etc - certainly not books(more so when they are not banned, or was obtained at some bookshop?). Further, having a book/article and reading it even if it is about some terrorist groups, terrorist ideology, past terrorist action should not be made into a 'crime' - Curiosity is a human trait. Further, for persons who want to convince others to reject such terrorist ideology, groups, etc  - it means they should know what is being said to be able to criticize it. When Malaysia can stop Christian books that use the word 'Allah', how come they failed to stop the entry of these books 'items associated with any terrorist group or the commission of a terrorist act'

Secondly, we know that the problem with 130JB is that the words like '"knowing", "intentionally", "having reason to believe", etc is not there unlike most of other section 130 offences. That means the mere possession of the books is sufficient to convict. In Parliament this 'error' was acknowledged by the Minister, who seem to have said that it would be amended later to correct matters. No amendments yet. 

After the Chief Justice and the President of Court of Appeal tenure was extended beyond their retirement age, it may have impacted the 'independence' of Judges. Could Judges be thinking that being 'pro-government' will increase their chances of promotion, or even extended tenure beyond retirement. Will justice be done in this case based on the facts and evidence, or will other factors come into play?

5 year prison sentence from the date of arrest may be a short sentence. She was arrested, I believe, on 22/3/2016, and that means about 1 year and 7 months of her prison sentence have been served.   

Siti Noor Aishah Atam 

she was arrested under SOSMA[Security Offences (Special Measures) Act 2012]
- then she was charged and tried in the High Court. At the close of prosecution's case, the High Court acquitted her.
- then they arrested her under POCA(Prevention of Crime Act) - a Detention Without Trial Law. (This they did after the High Court refused the prosecution's application to keep he in Detention pending the filing of the appeal...). Was it an act of contempt of court?
- then the Court of Appeal allowed the prosecution's appeal, and the case was send back to the High Court for continued trial
- the High Court then found her guilty and sentenced her to 5 years jail..
- Anyway, the case is now at the Court of Appeal ...and the judgment will be out soon...

IMPORTANT - because in most of such case, it is most likely that Detention Without Trial(DWT) laws will be used...Detention/Restrictions orders for a virtually unlimited period on the discretion of the Board. When such DWT laws, the victim cannot even the challenge the reasons being used for his/her detention/restriction...In some other cases, persons charge just plead guilty - there is no full trial.

Hence, Siti's case was important - because there was a trial..

The charge against her was - the possession of 12 books containing elements of violence dan linked to terrorist groups that is the Jenaah Islamiah(JS), Islamic State(IS) and Al Qaeda...the charge in full is as stated below in the Malay language.

“Bahawa kamu pada 22 Mac 2016 jam lebih kurang 12.25 tengahari di sebuah rumah dialamat Lot 1241, Jalan Lapangan Terbang Sura, dalam Daerah Dungun, dalam Negeri Terengganu, telah memiliki 12 buah buku yang merupakan item yang berunsur perbuatan keganasan dan berkaitan dengan Kumpulan Pengganas iaitu Kumpulan Pengganas Jemaah Islamiah (JI), Islamic State(IS) dan Al Qaeda(AQ) sepertimana di Lampiran A dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 130JB(1)(a) Kanun Keseksaan dan boleh dihukum dibawah peruntukan yang sama.
The problem was that these books were not banned by the Malaysian government...that was a factor that led to the acquittal without Defence being called in the first case...

The 2nd problem was proving that the books were really Siti Aishah's books...

My other concern, was how do we decide that these books are linked to terrorism and terrorist groups. The prosecution called in experts from the academia, one even from Singapore...Well, unlike DNA, fingerprint, autopsy, etc ...all these experts could do was give their own opinion...

In any event, the judgment of the High Court dated 29/9/2016 that acquitted Siti without calling her to enter her defence can be found here - Siti Noor Aishah Atam - Alasan Penghakiman Mahkamah Tinggi - Mahkamah Bebas Polis Tangkap Lagi Guna POCA??

The High Court had last year acquitted and released her, but on the same day, Aishah, the first of five siblings, was re-arrested under the Prevention of Crime Act 1959 (Poca) and detained for another 60 days.Upon her release, she was placed under house arrest. Last Monday, she was again arrested under Sosma and is currently detained at Kajang prison.- FMT News, 31/3/2017
After the Court of Appeal overturned the acquittal, and send the case back to the High Court - the High Court found Siti Aishah guilty...and sentenced her to 5 years. That judgment of the High Court could be found in this post -  Siti Noor Aishah Atam - dipenjarakan 5 tahun memiliki buku yang tidak diharamkan kerajaan. Kini di Mahkamah Rayuan?

In the 2nd High Court judgment, interesting points emerge:-

1. SOSMA[Security Offences (Special Measures) Act 2012] - prosecution used this. This allows the normal evidential and procedural requirement that ensure a fair trial. An example are statements made by the accused person after arrest...In this case, the court accepts a alleged statement by Siti to the arresting officer that the things in the room belongs to her..(despite the fact that seem to have no report/written statement to support the arresting officer's statement) - well, if SOSMA is relied on, one can ignore the requirement of the Evidence Act. Now, in Malaysia, no statement made the accused person after arrest can be used by the prosecution - not even a confession...

SOSMA 2012

Inconsistency with the Evidence Act 1950
17. This Part shall have effect notwithstanding anything incocsistent with the Evidence Act 1950 (Act 56)

Statement by accused
18A Any statement by an accused whether orally or in writing to any person at any time shall be admissible in evidence

2.  The 2nd matter, that the court concluded was that this was a 'Strict Liability' crime and there was no requirement to show intention...i.e. if the books was found on her, she was guilty ...there was no need to prove intention ...since words like "knowing", "intentionally", "having reason to believe"was not there in comparison with some of the other section 130 offences...which had such words.
Section 130JB Possession, etc. of items associated with terrorist groups or terrorists

(1) Whoever -
(a) Has possession, custody or control of; or
(b) Provides, displays, distributes or sells,
Any items associated with any terrorist group or the commission of a terrorist act shall be punished for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item

This lack of mens rea element (intention, etc) was raised in Parliament - and the Minister also said that he would add the 'mens rea' element if he could ---and he would discuss with the AG ...on the issue of an amendment later?...(read the Hansard extract here, and also part of the 2nd Judgment)

Saya mendengar hujah daripada Ahli-ahli Yang Berhormat berhubung dengan satu seksyen yang banyak dibangkitkan iaitu Seksyen 130JB(1) iaitu seksyen yang berhubung dengan possession of item. Saya sendiri pun mempunyai kecurigaanjuga, Yang Berhormat. Saya memahami apa yang Yang Berhormat sebut berhubung dengan possession ini dan Yang Berhormat sebut juga, itu yang asas sekali dalam sudut undang-undang, actus reus dan mens rea itu, ia tidak ada soalan mens rea proof. Asalkan ia mempunyai atau ada benda-benda macam itu, kalau dilihat secara literal undang-undang ini, boleh dihukum dan boleh dibawa ke mahkamah............
.............Yang Berhormat, oleh kerana saya juga peka dengan proses pemindaan Yang Berhormat. Kalau saya boleh buat sekarang pindaan itu, saya boleh ubah. Masuk apa yang disebut oleh itu tadi supaya soalan mens rea itu akan dimasukkan dalam seksyen 130JB ini. Akan tetapi saya beri assurance satulah sebagaimana yang dipinta oleh Yang Berhormat Shah Alam, saya akan bincang dengan AG selepas kelulusan itu nanti untuk kita membincangkan soal pindaan kepada 130JB ini............"
Hence, if this be the case, only 2 things need to be shown with regard to the 130JB offence..and proven

FIRST - That the 12 books was in Siti's possession, custody or control - there is no need to even go into the WHY? Or whether she knew that it was about terrorism? Or whether she wanted to join the terrorist, it is very ODD why a lot of time and effort was spent on this...

SECOND - Whether it was 'items associated with any terrorist group or the commission of a terrorist act' Since, it was not banned in Malaysia, doubts are created? Since, it was apparently on sale in shops...further doubts arises....So, the only proof would the evidence of the so-called experts...

MY OTHER MAJOR CONCERN IS ...what do you mean by  'Any items associated with any terrorist group or the commission of a terrorist act'
- well if was bombs, guns, etc that belongs and/or is used for the comission of terrorist acts ...maybe not so much of a problem
- BUT when it comes to books, articles and other literature --- there is a BIG problem

'Associated' - what does it even mean? It could be articles/books looking and  discussing,motivation, etc... It could even be books that discusses...and criticizes...and come with a conclusion against these groups and acts...

Books published by these groups - well, one may want to 'ban' this ...may it an offence to possess it or read it....BUT then, for anyone who wants to 'combat' these groups, their thinking, etc...would have to read it, understand it ...and only then will they be able to highlight the flaws or critic/undermine its ideology...

Will newspapers that write about these groups or these acts also be wrong and people reading it be criminals?

Hence, Siti Noor Aishah's case brings out these flaws about this offence....and maybe, books and articles should not even be considered 'items' with regard to this section. 

Religion have been used many times in history as a justification of VIOLENCE against persons of other beliefs...We have the Crusades, ...even the Sunni-Shia wars/conflict...

In this case, it looks very much that the government is trying hard to justify the arrest and prosecution of Siti...and all this is happening whilst the case is pending. The matter is before the Courts - and as such, the Minister or the police should not be saying anything...REMEMBER our concern is is not to be taken like a competition - the prosecution MUST NOT be striving to win...that is wrong.

"...On a separate matter, Comm Mohamad Fuzi said actions taken against Siti Noor Aishah Atam, 30, was justified. She is in Kajang Prison after the Court of Appeal reversed her acquittal over charges of having 12 publications relating to terrorism.
She was a Kolej Universiti Insaniah (Kedah) graduate who was continuing her Masters in Islamic Studies at Universiti Malaya when she was arrested in March last year under Sosma for having books on Jemaah Islamiyah (JI), Islamic State (IS) and al-Qaeda.
On Sept 29 last year, she was acquitted by the Kuala Lumpur High Court but was re-arrested under the Prevention of Crime Act for allegedly importing IS flags into the country.
“We will not compromise against IS militants as well as sympathisers and supporters. We have enough credible evidence,” Comm Mohamad Fuzi said.
“Safety and security is our priority,” he said, in dismissing allegations by the Terengganu native’s family over miscarriage of justice in Siti Noor Aishah’s case.
“We also discovered that she was a student of wanted fugitive militant Dr Mahmud Ahmad, who has fled to southern Philippines.
“We won’t take such drastic action if the evidence is not sufficient,” he said....Star, 11/4/2017
- well, her charge was about being in possession of 12 books - nothing to do with importing flags? 'Importing' - well, that requires some license, does it not? If terrorist organisation flags were found, surely they would have charged her for that - better than non-banned in Malaysia books.
- She was a student of a wanted fugitive...well, was that fugitive not a lecturer in a government University - and, Masters or other students are free to study any of these 'government vetted' lecturers, are they not.
- Remember the CHARGE - nothing to do with whether she knew alleged terrorists...or wanted to go to fight for terrorist why is the 'police' making such statements when her trial is ongoing...Why 'defame' a person whose trial and appeals are still ongoing?

JOHOR BARU, April 1 — The Home Ministry today urged all parties not to play up the issue over the detention of Siti Noor Aishah Atam and to leave the matter to the police.
Its deputy minister Datuk Nur Jazlan Mohamed said if Siti Noor Aishah who was re-arrested under the Security Offences (Special Measures) Act 2012 (Sosma) was found not guilty, the former Universiti Malaya student would be released.
“The police will not simply arrest anybody if he or she is not involved in activities which are inclined towards terrorism.
“In the case of Siti Noor Aishah, we will assess whether she was really involved in acts of violence,” he told reporters after opening #KitaPulai Mini Carnival Permatang Kempas, here today.- Malay Mail, 1/10/2017

- Well, what is the Deputy Minister even talking about 'involvement in acts of violence'. Charge her for that - rather than the possession of 12 books then? 
- The Deputy Minister says 'leave the matter to the police' - well, should he not have said 'leave the matter to the Court'. The police is out of the picture, save being still part of the prosecution...

Police have enough grounds to detain and investigate Siti Noor Aishah, who was re-arrested under the Security Offences (Special Measures) Act (Sosma) on Monday.
“They can say anything they like. But we have enough grounds. Well, sometimes people won’t admit to what they have done,” Inspector-General of Police Khalid Abu Bakar told a press conference here today.
“No guilty person would admit they are guilty.”...“We have enough reasons to arrest her,” he added.
“So don’t only now say ‘I didn’t do it, I’m not involved’. We follow the laws in our country. We don’t do something out of our jurisdiction.”...FMT News, 31/3/2017

- 'enough reasons to arrest her' - the only reason to arrest her has been that they found her with 12 books...Any other reason is not relevant. 
- 'enough grounds' ..'enough reasons' - well, sadly Detention Without Trial Laws do not allow the victims to challenge these 'grounds' or 'reasons' in court. In short, the police or the government can say anything - but the courts cannot review these 'reasons' or 'grounds'...So, it could be baseless - but we are all expected to simply trust the Police and the Government?

BUT, the point to be made here was why is the police and Deputy Minister even trying to justify the charging of Siti Noor Aishah, and the use of SOSMA and POCA against her? Why even use SOSMA which allows alleged statements made by Siti to the arresting officer to be admitted in court? If there is evidence, let us have a normal trial following all the requirements of the Evidence Act - the use of SOSMA itself raises doubt...
What will JUDGES do - act in accordance of what PM Najib and the government wants OR uphold the cause of justice without fear or favour. Judges should not blindly follow 'bad' laws - they are duty bound to even critic 'bad' laws inconsistent with justice...But, alas would judges be worried about promotions and transfers ...and do as the government want?

A 'terrorist' ideology can only be defeated by arguments - not the banning of reading material that are 'associated' with  'with any terrorist group or the commission of a terrorist act'...

Opinions and viewpoints can only be defeated by sound convincing, acquit Siti Noor Aishah Atam of this charge of being in possession of books...that were not even banned by the Malaysian government...

Well, this is my opinion in the matter - please consider it, and make your own conclusions about this case...

Let us call for the end of Detention Without Trial laws - and demand that all persons be given a fair trial, in accordance with requirement of the Evidence Act and Criminal Procedure Code. Laws like SOSMA also must be abolished...

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