Media Statement
– 16/11/2017
ABOLISH POCA AND DETENTION WITHOUT TRIAL LAWS
142 juveniles and possibly thousands denied
their
liberty without being accorded the right to
fair trial
We, the 45 undersigned civil
society organisations, trade unions and groups are perturbed to hear that 142 juveniles have been arrested under the Prevention of
Crime Act (POCA), a law that allows the detention of people without trial. This
was revealed by the Deputy Prime Minister of Malaysia, Ahmad Zahid
Hamidi, in a Parliamentary written reply dated 31/10/2017.(Malaysian Insight, 7/11/2017)
We are shocked about the
continued existence of Detention Without Trial laws in Malaysia, including the
Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and
the Dangerous Drugs (Special Preventive Measures) Act 1985 that allows for
persons to be arrested, detained and/or restricted without even being accorded
the right to challenge the reasons of their incarceration and/or restriction in
court. The fundamental right to a fair trial is denied.
If 142 juveniles were victims of
this Detention Without Trial(DWT) law, then one wonders whether thousands of individuals
are currently being detained/restricted under POCA and other DWT laws.
The fundamental problem with
these DWT laws in Malaysia is that the victim cannot even challenge even the
reasons for his arrest, detention and/or restriction in a court of law. Without
the ability to go for a judicial review challenging the reasons used for the detention/restriction,
the judiciary is effectively barred from ensuring that the Executive is not
abusing its power and/or that no innocent person is being unjustly denied his
constitutionally guaranteed rights and liberties.
DWT allows for an individual to
be detained and/or restricted indefinitely according to the whims and fancies
of the government, be it a Minister or some appointed Board.
A person who has been arrested,
detained and/or restricted under these draconian Detention Without Trial Laws
are also denied the fundamental right to a fair trial. The State could also deny rights/liberties of the
innocent. The principle that everyone should be presumed innocent until proven
guilty in a court of law must be respected.
When Malaysia finally got rid of
the infamous Internal Security Act 1960(ISA) and the Emergency(Public Order and
Prevention of Crime) Ordinance 1969, there was hope that all other laws that
allow for DWT will also soon be repealed.
However, the opposite happened
and the ability of the State to continue using Detention Without Trial laws,
was enhanced by the amendments of the Prevention of Crimes Act 1959(POCA), and
the introduction of the new Prevention of Terrorism Act 2012.
An amendment to POCA, which came
into effect on 2/4/2014, introduced a new Part IVA, that introduced Detention
Without Trial. The Board could now issue ‘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.’
Previously,
when POCA was used, within 24 hours after arrest when the victim is brought
before the Magistrate for a remand application, a statement in writing signed
by a police officer not below the rank of Assistant Superintendent stating that
there are grounds for believing that the name of that person should be entered
on the Register was required before a Magistrate had to grant a 14 day remand.
But, after April 2014, all that is required is a statement of a police officer
of merely the rank of Inspector. Hence, rather than having greater safeguard
against possible abuse, it was made easier by requiring just a lower ranked
Inspector’s statement. Remand period was also extended to 21 days.
POCA, which was originally enacted
to be used for organized crime members, triads or gangs involved in crimes
involving ‘violence or extortion’ was amended to cover all offences in the
Penal Code. Originally it was to be used for gangs of 5 or more persons, but that
was amended to 2 or more persons. That means that POCA can now be used for even
a person who committed a crime with another,
even if the crime was theft or some other lesser crime. Right to a fair trial now
could easily be denied for many more persons.
The POCA amendment, that came
into force in May 2014, allowed for POCA to be used also for an even wider
range of persons including drug
traffickers including persons living on proceeds of drug trafficking, human
traffickers including persons living on proceeds of human trafficking, persons
involved in unlawful gaming, smugglers of migrants including persons living on
proceeds of migrant smuggling, recruiters of members of gangs or persons to
participate in some crime. A subsequent amendment in 2015 added ‘Persons who engage in the commission or
support of terrorist acts under the Penal Code’.
An interesting amendment to POCA
that came into effect on 1/9/2015 was section 4(2A) which stated that “No person shall be arrested and detained under this section
solely for his political belief or political activity.
The new Section 4(5)
goes on to explain "political belief or political activity" as
meaning ‘engaging in a lawful activity through-(a) the expression of an
opinion or the pursuit of a course of action made according to the tenets of a
political party that is at the relevant time registered under the Societies Act
1966 [Act 335] as evidenced by-(i) membership of or contribution to that
party; or (ii) open and active participation in the affairs of that party; (b)
the expression of an opinion directed towards any government in Malaysia; or (c)
the pursuit of a course of action directed towards any government in
Malaysia.".
This may give the impression that
POCA will not be used against politicians (and possibly even civil society
personalities) for actions directed against the government. It however does not
protect civil society or human rights defenders if their actions and/or
expression of opinion is directed against some our perpetrator of injustice,
not being ‘any government’, or is they are alleged of committing some other
crime. We recall that POCA was used in July 2016 in the case of R.
Sri Sanjeevan, Malaysian Crime Watch Task Force (MyWatch) chairman
– a civil society organisation.
This amendment, however, may have
the effect of reducing the interest or concern of political parties about POCA
and such Detention Without Trial Laws.
The victims of these DWT laws may
now be mostly common people, who are being detained and/or restricted for years
without even being accorded a fair trial.
The number of victims of such DWT
laws are also unknown, as most such information in Malaysia are usually known
when the government makes a reply to a Parliamentary Question. The recent information
about the number of juvenile victims of POCA was because of a such question
raised by an Opposition parliamentarian.
Now, whenever a person is
suspected of a crime involving 2 or more persons, POCA can simply be used as it
is so much easier, and requires no comprehensive investigation or gathering of
evidence that would have been required if one was to be charged and tried in
court. In a fair trial, prosecution needs to prove that a person is guilty beyond
reasonable doubt. The guilt or innocence of a person must be determined by an
independent judge in court, and the belief of the police, prosecution or
government that a person is guilty is inadequate. A trial also gives a right to
the accused persons to defend themselves, and the courts will decide after
considering all evidence and facts of the case.
Therefore, we call
1. For the immediate repeal of all Detention Without Trial laws, including the Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985;2. For the immediate and unconditional release of all persons now currently being detained and/or restricted under these Detention Without Trial laws;3. For the immediate disclosure of the numbers of persons being detained under these DWT laws, and the reasons being used to justify their detention/restriction;4. That compensation and/or damages be paid to all victims of detention without trial laws for their loss of rights and liberties;
Charles Hector
For and on behalf the 36 groups,
organisations and unions listed below
ALIRAN
Association of Human Rights
Defenders and Promoters- HRDP, Myanmar
Asia Pacific Solidarity
Coalition. (APSOC)
ATRAHDOM Guatemala.
AWAM
Australians Against Capital
Punishment(AACP)
BERSIH 2.0
Center for Prisoners' Rights
Japan
Christian Development Alternative
(CDA), Bangladesh
Civil Rights Committee of KLSCAH
Democratic Commission for Human
Development, Pakistan
Indonesian Legal Roundtable
Institute for development of
Alternative Living (IDEAL)
Japan Innocence and Death Penalty
Information Center
Legal Awareness Watch (LAW),
Pakistan
MADPET(Malaysians Against Death
Penalty and Torture)
Malaysian Physicians for Social
Responsibility
Malaysia Youth & Student
Democratic Movement (DEMA)
National Union of Transport Equipment & Allied Industries Workers
(NUTEAIW)
North South Initiative
NUFAM(National Union of Flight Attendants Malaysia)
Odhikar, Bangladesh
Parti Rakyat Malaysia (PRM)
Persatuan Komuniti Prihatin
Selangor & KL
Philippine Alliance of Human
Rights Advocates
PROHAM (Society
for the Promotion of Human Rights, Malaysia)
Sahabat Rakyat 人民之友
Sawit Watch, Indonesian Social
NGO
Saya Anak Bangsa Malaysia (SABM)
Sosialis Alternatif (Committee
for Workers International-Malaysia)
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for
Democracy
Think Centre, Singapore
Workers Assistance Center, Inc.,
Philippines
WH4C (Workers Hub For Change)
Yaung Chi Oo Workers Association (YCOWA)
Additional Endorsements:-
Asia Centre
Human Rights & Democracy Media Center “SHAMS”
Lawyers For Human Rights
International (India)
Action by Christians for the
Abolition of Torture (ACAT-Liberia)
Inter-Research And Studies Institute (IRAS)
Iran Human Rights (IHR)
Journey of
Hope...from Violence
to Healing
Association Justice & Mercy
(AJEM)
lifespark
– Switzerland
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