SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

"solely for his political belief or political activity" - there is concern with regard the definition section as it limits it to "directed towards any Government in the Federation" - when it comes to ordinary persons and maybe even civil society groups - the concern would be whether there would be protection if it is not 'directed towards' because some of these may not be specifically 'directed towards' but may be directed to Malaysians and other persons, the media, some companies in Malaysia, some political party of personality (or even bodies like the ILO, UN, other governments, etc,) but is related to and/or relevant to the government of Malaysia. Hence, the wordings 'directed towards an government in the Federation' may be too limiting and can be narrowly interpreted.... Political activity of individual persons and civil society groups is a funadamental right that need to be protected...Remember political belief and activity is non something that is confined just to political parties and politicians - but is something that everyone has a right to.

Sec. 4(3) (3) No person shall be arrested and detained under this section solely for his political belief or political activity.

(12) For the purpose of this section, “political belief or political activity” means 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 the Federation; or

(c) the pursuit of a course of action directed towards any Government in the Federation.

Power to intercept communication - section 6 

- this power is most dangerous and certainly an invasion of privacy - without the knowledge of the affected individual, let alone with no stipulation as to the time frame that this invasion of privacy is permitted..

The risk is the government can now legally 'bug' people's phones, intercept e-mail communications, etc -- and it can be something done permanently. All persons active in civil society, political parties, trade unions, etc - may now have their 'communications' permanently being monitored and intercepted. Who would they want to continuously monitor - Ambiga and the people in BERSIH, those involved in HIMPUNAN Hijau, those involved in HINDRAF and in fact maybe all those in civil society, trade unions and opposition political parties,... maybe also ....

Can this 'invasion of privacy' be challenged in court? Well, no mention about this right at all.... Can there be a judicial review to challenge the AG's authorization? There must be - but the present law does not provide for this.

Can the 'evidence' gathered through these actions of invasion of privacy be used in court? It should not be allowed to be used, that is my belief...

Will the police 'openly' use this power - i.e. section 2(b) by entering premises and installing these devices to psychologically instill 'fear' and attempt to silence advocates for rights and justice? Most likely...

From a perusal of some of the grounds for detention of persons who have been detained under the ISA in the past, it is obvious that the police have already been listening in on private conversations, bugging phones, monitoring emails, etc - BUT once this is given 'legality' as is being done through this act - it is even more dangerous and wrong for now whatsoever 'evidence' gathered could also be used against persons. Most importantly, it is a blatant invasion of privacy..

6. (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer—
(a) to intercept, detain and open any postal article in the course of transmission by post;
(b) to intercept any message transmitted or received by any communication; or
(c) to intercept or listen to any conversation by any communication.

(2) The Public Prosecutor, if he considers that it is likely to contain any information relating to the communication of a security offence, may—
(a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or
(b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence.

Sensitive information to be used as evidence by the Public Prosecutor - the avoidance of pre-trial disclosure

The amendments allow for the Public Procedure to evade the duty of disclosure provided for in section 51A - i.e. the right of the accused to be able to see the 'evidence' that will be used against him/her in trial, and this is a most important right to enable the accused to prepare his/her Defence.

Worse still, the Public Prosecutor can make an application to court ex-parte (i.e. without the knowledge of or the right of the accused person  having the right to be heard) to allow them to evade the duty of full disclosure...

When the Public Prosecutor hides evidence from the accused, it  is very unjust - for the accused will be denied the right and opportunity to present a 'proper defence' --- suddenly to be surprised by 'previously undisclosed evidence' in mid-trial that may completely destroy the very defence of the accused. In any trial, there may be a variety of possible defences...and strategies that the accused's lawyer may proceed on, and the hiding of 'evidence' until it is disclosed in trial is very very wrong. Gone will be the opportunity of the accused to verify and investigate whilst defence is being prepared to counter that evidence, or its' source or its credibility...or relevance.

Remember, we are talking about the situation when a person is being charged and will be tried - and thus pre-trial disclosure is fundamental and an important right to the accussed. We certainly do not want convictions based on trickery or 'dishonesty' - but convictions based on the truth where the accussed has been given all opportunity and rights to properly defend himself/herself against any charge.

Now, even the courts power to direct Public Prosecutor to reveal 'sensitive information' is taken away if 'if the Minister certifies that the production of the statement or summary is prejudicial to national security or national interest.'. There is NO mention about the availability of judicial review to challenge the Minister or the Public Prosecutor...

Note section 51A is already bad when it provides that the  'prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.' - This fact may thus never even be revealed to the court. This fact that is 'favourable to the accused' , it it was disclosed would likely result in a finding of not guilty...

- 8. (1) Notwithstanding section 51A of the Criminal Procedure Code, if the trial of a security offence involves matters relating to sensitive information the Public Prosecutor may, before the commencement of the trial, apply by way of an ex parte application to the court to be exempted from the obligations under section 51A of the Criminal Procedure Code.

Section 51A of the Criminal Code is this...

51A.  Delivery of certain documents. (Criminal Procedure Code)

(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;

(b) a copy of any document which would be tendered as part of the evidence for the prosecution; and

(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.

 Admissibility of intercepted communication

- Today, is very easy for people to tamper with recordings, etc - splicing it together to suit the intended purpose, and as such the inability of the accused person's to challenge the ' the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done..' with regard the alleged intercepted communication is definitely very dangerous. In the 1987 ISA detentions in Singapore, there was also allegations of doctored pictures, etc - but in 2012, it is even more easy to 'doctor' or even create 'evidence' ...

Admissibility of intercepted communication
24. Where a person is charged for a security offence, any information obtained through an interception of communication under section 6 shall be admissible as evidence at his trial and no person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done
under section 6.

Admission of confessions - this goes against even the Criminal Procedure Code..

- here they want to admit confessions in writing by the Sessions Court Judge - certainly not at all safe.

1- The Session Court Judge is a public servant - and unlike High Court Judges and judges of the higher courts is not even protected by measures needed to ensure their independence. [Now Session Court judges are under the Judicial and Legal Services Commission - and this is also the same Commission under which Public Prosecutors are. He may also be a former Public Prosecutor. ]

2 - In Hong Kong, for example, when it comes to confessions and questioning, all is recorded by video - and not just from one angle but from at least 3 angles, and these are made available to the accused's lawyer - surely in 2012, we must not only talk about the admission of statements/confession just in writing but also with the said video recording of the process that will also show the court the state in which the accussed was when his confession was recorded, his demeanour, the presence/absence of other police personnel or 'intimidations', threats,...

3 - Confessions should never be admitted as evidence

(2) Such statement or confession shall be recorded in full in writing by the Sessions Court Judge to whom it is made and shall then be forwarded to the court before which the case is to be tried.

Finally, I saw that this Bill have been uploaded on the Parliament Website, and above are some of my initial comments about this Bill. 

Note also that what the government intends to repeal is just the ISA - not the other 2 laws that allow for Detention Without Trial, which could very easily be used like the ISA. Emergency (Public Order and Prevention of Crime) Ordinance 1969 could, I believe, very easily be used against persons who the ISA was used before, more so since there are now 'new crimes'....

All Detention Without Trial Laws need to be repealed...

BAR:- Repeal of ISA is commendable, but provisions in new law that depart from ordinary principles must be reviewed

Press Release

Repeal of ISA is commendable, but provisions in new law that depart from ordinary principles must be reviewed

The Malaysian Bar commends the Honourable Prime Minister for fulfilling the promise he made on 15 September 2011 to abolish the Internal Security Act 1960 (“ISA”).  Since its enactment more than fifty-one years ago, this piece of oppressive legislation enabling preventive detention without trial has been extensively condemned for being a gross violation of human rights, and for the cruel and indiscriminate abuse resulting from its use.

The Malaysian Bar is fully supportive of the Government’s aim to combat terrorism, which represents an extraordinary threat to international and domestic peace and security.  The Government’s counter-terrorism policy and actions must strike a delicate balance between collective security and individual liberties, and be consistent with the rule of law.

In its Memorandum dated 19 July 2010 (“Memorandum”)[1], the Malaysian Bar expressed its view that there is adequate legislation to combat terrorism and, where necessary, the existing legislation could be strengthened alongside improved safeguards and oversight mechanisms.  Nonetheless, the Bar acknowledges that the replacement legislation — the Security Offences (Special Measures) Bill 2012 (“Bill”) — and the amendments to the Penal Code, Evidence Act 1950 and Criminal Procedure Code (“Amendments”) allow for the right to trial, and contain some provisions found in the laws of other jurisdictions[2].  Furthermore, the maximum period of detention of twenty-eight days, after the arrest and detention period of twenty-four hours, is consistent with the Bar’s position in its Memorandum.

Bar Council was invited by the Honourable Attorney General to provide its comments — although within a short period of time prior to this legislation being tabled in Parliament — and two meetings were held to discuss the Bill.  We welcome the open-minded and frank dialogue with the Attorney General’s Chambers, and note that some of our suggestions were accepted.  Whilst we appreciate the Government’s desire for quick action and the hard work of the Attorney General’s Chambers in its study, and drafting, of the Bill and the Amendments, we urge that in future the consultation process be more extensive, and more time be provided for it.

The Bill vests extraordinary and wide-ranging powers in the Government.  The Bar expresses its concerns regarding, inter alia, the following issues[3], which deserve further study and debate.  

 

(a) Preamble — the validity of the Bill is not dependent on the invocation of Article 149 so long as it contains safeguards consistent with fundamental liberties.

(b) Section 3 (Interpretation) — the definition of “security offences” includes an act that is prejudicial to national security or public safety[4].   Such a definition is too wide.  Instead, a more precise, and better, definition can be found in the United Nations Convention for the Suppression of the Financing of Terrorism:

Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act.

(c) Section 4 (Power of arrest and detention) — the extension of the period of detention for a duration of not more than twenty-eight days should be subject to judicial oversight, instead of by way of decision of a police officer of or above the rank of Superintendent.

(d) Section 6 (Power to intercept communication) — this power should be exercised by a judge, and solicitor-client communications must be protected.

(e) Parts IV (Special Procedures Relating to Sensitive Information) and VII (Evidence) — it is here that the Malaysian Bar has its greatest concerns, and where there are radical departures from the current rules of evidence.  The use of a summary of the evidence (as opposed to the evidence itself) and the lowering of the admissibility threshold will pose a serious impediment to a fair trial.  

In particular, the radical departure from the ordinary rules of evidence may negatively impact on the accused’s right to a fair trial.  Counter-terrorism laws, policies and decisions must not usurp the very rights and freedoms that the terrorists themselves are threating.  

We appreciate the assurance of the Attorney General that there will be continuous study and review of the Bill and the Amendments, and that the Malaysian Bar’s contribution will be welcomed.  

 

Apart from the ISA, the other legislation that now remains for the Honourable Prime Minister to consider amending — to rid our statute books of all arbitrary detention laws — are the Dangerous Drugs (Special Preventive Measures) Act 1985 and Prevention of Crime Act 1959, on the assumption that there will be no re-introduction of the Emergency (Public Order and Prevention of Crime) Ordinance 1969.

 

The Malaysian Bar encourages and supports the Prime Minister to continue on a path of law reform that is consonant with international human rights norms.

 

Lim Chee Wee

President

Malaysian Bar

10 Apr 2012

_________________________________

[1] The Memorandum is accessible here.

[2] One example is the Canadian Anti-Terrorism Act Bill C-36.

[3] The Bar would require some time to prepare and submit a memorandum to address more comprehensively the issues raised by the Bill and Amendments.

[4] The First Schedule of the Bill refers to Chapters VI and VIA of the Penal Code, where section 130B(2) defines “terrorist act”.

Repeal ISA Bill and New "ISA' Bill still not there on Parlimen Website

Well, the said Bills is still not there in the Parliamentary website - and ordinary Malaysians still have no access to these Bills .... 

All Bills tabled and discussed are usually found in the Parliament website  English and Bahasa Malaysia - but these new Bill and that Bill to repeal ISA, etc is all not there

Security Offence Bill 'repressive', PKR veep

4:37PM Apr 11, 2012

 

 

The Security Offences (Special Measures) Bill 2012 is “repressive” and “a danger to fundamental liberties”, warned PKR vice-president N Surendran.

Surendran, a legal practitioner, argued that this was because the Bill was based Article 149 of the Federal Constitution, which he deemed obsolete.

Article 149 relates to legislations against “subversion, action prejudicial to public order”.

“We are appalled that the Bill is created under the provisions of the draconian Article 149 of the constitution.

“Article 149 is oppressive, unjust and no longer necessary in modern Malaysia; it should have been repealed along with the Internal Security Act (ISA) 1960,” said Surendran.

Open to abuse

On the 28 day detention period allowed under the Bill, Surendran argued that this can give rise to arbitrary detention which is against the rule of law.

He said the 28 day detention period could not be challenged in court and this can be abused by the authorities to detain anyone who opposed them, including rally participants, supporters and political leaders.

“The extraordinary powers provided for under the Bill are unnecessary and harsh. There are existing criminal laws under Chapter 6A of the Penal Code that are adequate to deal with the threat of terrorism.

“The proviso that no one shall be detained for political reasons is no comfort to the rakyat, as the power to detain remains with the police,” he said in a statement today.

The new Bill is slated to replace the ISA - a notorious law that has been used against dissidents in the past - and is focussed on combatting terrorism.

Going back to outdated practices

Meanwhile, Puchong MP Gobind Singh Deo warned that the new law provides no legal safeguards against possible mental or physical abuse for those detained during those 28 days, since it cannot be challenged in court.

Gobind, who heads DAP’s legal bureau, also said the Bill intends to reintroduce the “concept of confession”, which has been done away with in most criminal proceedings because confessions can be extracted under duress.

“So, to revert back to an outdated practice would be highly questionable, especially where there will be no access to court during the first 28 days of detention during which time severe pressure would be brought to bear upon a suspect.

“What we have is essentially a trade-off. Take away ministerial power to detain without trial for two years and introduce new rules making it easier to secure convictions for offences carrying the heaviest of penalties.

“Whilst I must make it clear that we in the DAP support all efforts to preserve the safety of our nation, including efforts to combat terrorism, we must ensure that all laws enacted for such purposes are not in themselves arbitrary or oppressive and meet with all those legal standards which apply, so as to be effective ultimately,” he said.
Anwar: More laws need to go

Meanwhile, PKR de facto leader Anwar Ibrahim said that the Najib administration must abolish other repressive laws such as the Printing Presses and Publications Act 1984, laws restricting unions and laws which curb freedom of assembly.

“I repeat, Najib must seek to end all repressive laws, and with no reservations immediately,” said Anwar in statement today.

He noted that the repeal of the ISA, which will be completed once the Security Offences (Special Measures) 2012 Bill is gazetted, has long been championed by civil society movements and the Pakatan Rakyat.

“We celebrate this move, to end a history of detaining people for their political beliefs. I have been, as many of my colleagues in PKR and Pakatan Rakyat, detained under the ISA.

“It must not be forgotten that Malaysia’s civil society, led by movements like GMI (Abolish ISA Movement) and Suara Rakyat Malaysia (Suaram), have long opposed the ISA.

“The damage it has done over the decades to thousands of Malaysians and their families will remain a scar. The world should not forget the lives ISA has ruined,” said Anwar. - Malaysiakini, 11/4/2012, Security Offence Bill 'repressive', PKR veep

Anti-ISA proponents must also pay attention to Penal Code amendments

Anti-ISA Detention without trial advocates must also pay attention to the amendments being done to the Penal Code.

Attention must be paid to phrases being used, like  “activity detrimental to parliamentary democracy” - what does this really mean? Would the calling for people to publicly protest and take part in BERSIH, HIMPUNAN HIJAU rallies etc be considered '“activity detrimental to parliamentary democracy”?

Disseminating 'false information' - what does this cover? 

Too wide definitions in law, without detailed explanation, can easily be abused by the government, prosecutors and police - so we really need some of these terms clarified, failing which our rights as citizens and people in Malaysia may be withered away...

Amended Penal Code covers print, electronic media

G Vinod | April 10, 2012

The changes would empower the authorities to detain anyone 'who go against parliamentary democracy'.

KUALA LUMPUR: The government tabled several amendments to the Penal Code that may stir the the ire of civil rights movements in the country.

In the bill tabled by Minister in the Prime Minister’s Department Nazri Abdul Aziz today, the government introduced new sections to the Penal Code, ranging from 124B to 124N to deal with offences that used to be dealt with under the Internal Security Act 1960 (Act 82) but with modifications.

The modifications would empower the authorities to take action not only against individuals but also the print and the electronic media practitioners.

Sections 124B and 124C state that anyone who is involved in an “activity detrimental to parliamentary democracy” can be imprisoned for a term that may extend to 20 years while those attempting to do so can be imprisoned up to 15 years.

However, the sections make no mention of what constitutes an offence under parliamentary democracy and who makes the decision on whether an individual has acted against the state.

Sections 124D and 125D of the bill state that anyone who prints, publicises, sells, issues, circulates, reproduces or possesses any document or publication detrimental to parliamentary democracy can be imprisoned for a term that may extend to 15 years.

Section 124H states that anyone who incites violence or disobedience to law, through publication or electronic media, can be punished up to five years.

Section 124I of the proposed amendment would allow the authorities to punish anyone who disseminates false information up to five years, be it via publication or electronic means.

The government is set to table the the Bill for a second reading next Monday.

When asked on the matter, Home Minister Hishammuddin Hussein refused to comment, saying it was premature to discuss the details of the amendments.- Free Malaysia Today, 10/4/2012, Amended Penal Code covers print, electronic media

Bill for Act to replace ISA tabled but still not available to public at Parliament Website

Well, a visit to the Malaysian Parliament's website will show you that this Bill (or Rang Undang-Undang) has yet to be uploaded, and as such Malaysians are yet again denied the opportunity to see exactly the Bill that is being tabled in the Parliament. Without this, how can we even give our comments and opinions about this Bill, let alone to our MPs and the various parties represented in Parliament. I do hope that this BN government will not try to speedily pass this Bill and make it an Act of Parliament maybe even before they end their sitting in a few days time. This is certainly not democracy - for people need time to study Bills, express their opnions and forward their comments to government and all other concerned persons...

 Law to replace ISA tabled in Parliament today

S Pathmawathy 11:07AM Apr 10, 2012

A new preventive detention law was tabled in Parliament today to replace the draconian Internal Security Act (ISA) 1960, with indefinite detention replaced with a maximum 28-day detention period.

The Security Offences (Special Measures) Bill, meant to address long-held criticism over the 52-year-old ISA, was tabled by Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz for first reading today and slotted for debates next week.

Major points against the ISA are that it allows arbitrary arrest and indefinite detention.

The Bill seeks to provide special measures relating to security offences for the purpose of maintaining public order and security specifically to tackle threats by a person or a substantial body.

The threat highlighted in the Bill are as follows:

1) To cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;

2) To excite disaffection against the Yang di-Pertuan Agong;

3) Which is prejudicial to public order in, or the security of, the federation or any part thereof; or

4) To procure the alteration, otherwise than by lawful means, of anything established by law.

The Bill also states that no individuals can be arrested and detained solely for his political belief or political activity, in contrast to the ISA which was used extensively in 1987 to quell and arrest prominent opposition leaders.

Under the new law, a police officer is still given the rights to arrest and detain any persons, without warrant, if there is reason to believe the individual has been involved in security offences.

However, the individual arrested has to be informed of the grounds of the arrest by the police officer soon after.

The person arrested may be detained for a period of 24 hours for the purpose of investigations, but the detention period may be extended for a period of not more than 28 days, by a police offer of/or above the rank of superintendent of police.

Nevertheless, if the police officer finds that no further detention is necessary  but the individual still needs to assist investigations, upon submitting a report to the public prosecutor, an application may be made to the Sessions Court to allow for an electronic monitoring device to be attached to the individual, for up to 21 days.

Investigation officers are required to submit their investigation papers to the public prosecutor a week before the detention period expires.

The Bill will affect one’s rights enshrined under Article 5 and Article 9 of the federal constitution which ensure personal liberty and freedom of movement, as well as Section 117 of the Criminal Procedure Code (CPC).

The ISA was mooted during the administration of prime minister Tunku Abdul Rahman, who said then that it was meant primarily to target the communist insurgency of the period.

Prime Minister Najib Abdul Razak, in announcing the abolition during his speech on the eve of Malaysia Day last Sept 15, said this would pave the way for greater civil liberties and democratic reforms.

The anti-ISA coalition Gerakan Mansuhkan ISA (GMI) led a march to Parliament yesterday complaining of the government’s silence over the repeal of the ISA and that no public consultation on the new laws has been conducted. - Malaysiakini, 10/4/2012, Law to replace ISA tabled in Parliament today

A blow for Freedom of Peaceful Assembly/Expression and anti-ISA struggle

A most disappointing judgment of the court, and a great blow to the Freedom of Peaceful Assembly and protest in Malaysia.

Well, really the Federal Constitution provides for this Freedom - but our laws take it away when it says that this freedom cannot be exercised without the permission of the police. And if you do apply, the giving of the permission normally is delayed - and even if given, the conditions imposed are draconian. I remember some time back when I heard that when an opposition party applied for the police permission to hold a political dinner gathering, permission was allegedly granted on condition that there be no political speeches. In any event, why should we ask police for permission. I believe that requiring the informing of the police of such a protest for the purpose can come guarantee that this right of peaceful assembly is exercised without interference from 3rd parties, or obstructions to traffic flows, etc..., it may be OK - but in Malaysia, the police is given the almost absolute power in determining whether we can exercise this right of peaceful assembly.

There is a new law (maybe still not law) governing Peaceful Assembly, and the government allege that it will do away with police permissions, etc - but this is only if the protests are held at designated areas. Unfortunately, I did not see any list of designated areas, and if they say it can be done only in closed-door environments, including stadiums - it really defeats the purpose of freedom of assembly and protest, which must be done in a public area because the object of such protests is to convince members of the public about the cause, concern or issue - what is the use of like minded people already convinced of an issue coming in a room gathering, shouting slogans and carrying banners...

What is worse is that this was an anti-ISA protest - and even this BN government has declared that they will be repealing this most draconian law (which of course is yet to happen if it ever does) 

Given the BN's alleged position now on peaceful assembly and the ISA, the right thing that they should have done is withdraw the charges earlier and not proceed with this trial....but they chose not to, and that is indicative that our government really is not for 'freedom of peaceful assembly' or even the abolition of the ISA and other Detention Without Trial laws...

16 anti-ISA protesters guilty of illegal assembly

Hafiz Yatim 11:31AM Feb 22, 2012

Sixteen people who were arrested three years ago for protesting against the Internal Security Act were found guilty of illegal assembly by a sessions court in Kuala Lumpur today.

Eleven of the 16 whp were present in court today were sentenced to a day's jail and fined RM2,000 each, or a week's jail in default, by sessions judge Ainul Shahrin Mohamad.

The sentencing of two others who could not be present in court today and three others who were absent and had arrest warrants issued against them, will be delivered on March 21.

Judge Ainul ruled that the charge against the 16 had been proven beyond reasonable doubt and the accused failed to create doubts on the prosecution case.

The 16 people were on Aug 3, 2009, charged with illegal assembly under the Penal Code. Alternatively, they were charged with illegal assembly under the Police Act 1967.

They were arrested between 9am and 1.30pm on Aug 1, 2009, in the vicinity of Masjid Negara and Jalan Tunku Abdul Rahman, Kuala Lumpur.

Three of the accused were not present in court and judge Ainul issued warrants of arrest against them.

The 16 are Nordin Mohamad, Hayati Abdul Samad, Salmah Ismail, Norlaila Othman, Nashita Mohd Noor, Rashini, Hasbullah Pit, Wan Muhamad Jazlan Razali, Mohd Petri Mohd Yassin, Syaza Muaz Shaharudin, Mohd Sukri Mohd Sirat, Mohamd Sukeri Muhammad, Mohd Sallehuddin Yusop, Zulsifli Kama Kutty, Mohd Fazlzy Mohd Ismail and Norazam Sakib.

The two  “absent with reason” are Hayati and Syaza, who had informed the court of their inability to attend. Hayati's mother died early this morning, while Syaza is attending to her mother who is seriously ill.

The offence of illegal assembly is punishable with a jail term of six months and a fine.

DPP Yusaini Ameer Abdul Karim prosecuted.

Among the MPs present during the hearing were PKR vice-president Nurul Izzah Anwar (Lembah Pantai) and Tian Chua (Batu). Selangor PKR government information chief Badrul Amin, PSM secretary-general S Arutchelvam and the late Teoh Beng Hock's sister, Lee Lan.- Malaysiakini, 22/2/2012, 16 anti-ISA protesters guilty of illegal assembly

 

September PM says ISA will be repealed - November new arrests under ISA.

They said they are going to repeal the ISA - and pending abolition they should not be using it - but this is Malaysia and we are talking about Barisan Nasional(BN) government and they can say a lot of things ....make promises and then just ignore it. One example is that in September 2009, this government said that the Employment Act will be amended to ensure that all domestic workers will be entitled to one rest day per week - and to date although Bills have been tabled at least 2 times - this promise of rest day for domestic workers is still not there. That is why also I do not believe any of the promises made by the Minister (the BN government) about the proposed amendments - they say they will do this and that ...and at the end of the day will not do..

Now, 13 are being arrested under the ISA - and I am sure that they could have been arrested under the Criminal Procedure Code. Note that in the Penal Code - preparation, incitement, etc to do an offence is also an offence. Thus, so easily can they be arrested, charged and tried. There is no need to use the ISA...

Now, there is another law so very similar to the ISA, i.e. Emergency Public Order and Prevention of Crime Ordinance, a Detention Without Trial law,  which they could so easily use - but why use ISA when the PM already said that this ISA will be repealed? Think about it...

Remember under the detention without trial laws, the police and the government can make any kind of allegation - and the detainee has no way of challenging this in court. So vague allegations can so easily be made - what about a 'White Paper' explaining the arrest and detention under the ISA? This was done before for Ops Lallang - so why not for all usage of DWT laws...

"...Malaysia's Prime Minister Najib Razak opened the door to major political changes in this Southeast Asian nation Thursday by saying the government would abolish a decades-old law that allows for detention without trial and pledging not to hold anybody in custody because of their political beliefs...Instead, the country's draconian Internal Security Act will be replaced by new legislation targeted at detaining terrorists. Mr. Najib also said newspapers and broadcasters would be able to operate indefinitely without renewing their license each year, as is the case now, unless those licenses are revoked...." - Wall Street Journal, 16/9/2011, Malaysian Leader Opens Door for Reforms-Najib Vows to End Harsh Security Law, Political Detentions

Police confirm 13 nabbed under 'to be repealed' ISA

5:03PM Nov 17, 2011

Inspector-general of police Ismail Omar today confirmed news reports that fresh arrests were made under the Internal Security Act 1960, which the government said will be repealed soon.

A total of 13 were taken in under the Act and not 10 or 11 as reported in today's mainstream newspapers, Ismail said in a brief statement.

"Our intelligence reports and investigation detected efforts to revive a militant movement in Sabah," he said.

Ismail added that the 13, consisting of seven Malaysians and six foreigners, were nabbed in an operation from Nov 14 to 16.

"The (individuals) were arrested under Section 73 (1) of the Internal Security Act 1960.

"If not curbed, their actions can threaten and undermine national security," he said.

Militant school teachers?

However, Gerakan Anti-ISA (GMI) in a statement earlier today said its sources claimed that up to 14 people could have been detained.

It listed the names of only 11, including two who appeared to be brothers - Muhd Adnan Umar (a tuition teacher at MJU Centre) and Muhd Abduh Umar (a lorry driver).

Among the others are SMK Kinabutan Islamic studies teacher Mohd Nazri Dollah, SMK Umar-umas teacher Bakar Baba, MJU Tuition Centre teacher Darto Bandu and poultry trader Yusof Saripuddin.

Also on GMI's list are newspaper distributors Faizal Hamma and Joni @ Muadz.

The NGO also said that the next-of-kin were informed a day after the arrests was made. - Malaysiakini, 17/11/2011, Police confirm 13 nabbed under 'to be repealed' ISA

Some responses of civil society:-

AMNESTY INTERNATIONAL
Press Release
17 November 2011

Malaysia: New ISA detentions show U-turn on reform promises

The Malaysian government must halt detentions under the draconian Internal Security Act (ISA), Amnesty International said today, after the authorities said they had used the law to detain 13 people this week.

Police arrested the detainees on 13 and 14 November in Tawau, a town in Sabah in eastern Malaysia. Seven are Malaysian, and the other six are foreign nationals.

The ISA, which allows for indefinite detention without charge or trial, has been used to imprison critics of the government and opposition politicians as well as suspected militants.

The detentions were the first since Prime Minister Najib Razak announced in September that his government would repeal the law and replace it with new security legislation.

“The Malaysian government has made a mockery of its plan to scrap the Internal Security Act by using it to detain people once again,” said Sam Zarifi, Asia Director at Amnesty International.
“Promises to abolish ISA detention are not enough. Prime Minister Najib needs to end it in practice.”


The inspector-general of police, Ismail Omar, today told state news agency Bernama that all 13 detainees are being held under Section 73(1) of the ISA. This provision allows for police to arrest anyone without warrant whom they believe might “act in any manner prejudicial to the security of Malaysia.”


The ISA is also contrary to international human rights standards including the right to be free from arbitrary detention and the rights to due process and a fair trial.

“If the Malaysian police have grounds to suspect these 13 detainees of a legitimate crime, they should charge them or else release them. Locking people up without charge or trial shows flagrant disrespect for the rule of law.”

Press Release : Recent ISA Arrest : Flagrant Hypocrisy of Najib’s Announcement on Malaysia Day

On this year’s Malaysia Day, Prime Minister Najib Razak surprised the nation by announcing that the draconian Internal Security Act 1960 (ISA) will be abolished in the hope of building a nation that “practices functional and inclusive democracy where peace and public order are safeguarded in line with the supremacy of the Constitution, the rule of law and respect for basic human rights”.

The announcement stands in stark contrast to the recent arrest of 11 individuals in Tawau, Sabah who have been accused of terrorism under the ISA despite Prime Minister’s undertaking that the draconian ISA to be abolished.

It is important to be reminded that allegations made against individuals under the ISA remain mere allegations no matter how serious the nature of the said allegations is. These individuals have not been given any opportunity to challenge their detention or the allegations as the ISA allows detention without trial and it denies the basic right of the detainees to be tried in court.

Lawyers For Liberty is appalled to learn the recent arrest under the ISA which clearly manifests flagrant hypocrisy of the announcement made on the historic Malaysia Day by Prime Minister Najib Razak. This recent arrest shows that Najib’s administration continues to commit this legalized injustice despite sitting on the UN Human Rights Council where pledges have been made that Malaysia would uphold the highest standards of human rights before its re-election to the Council in 2010.

The ISA allows detention without trial where the police have the power to arrest a person up to 60 days and the Home Minister may authorize further detention up to 2 years and the period may be further extended indefinitely. This draconian piece of legislation goes against the fundamental principle of the right to trial which has been guaranteed under the Constitution and crystalized in the Universal Declaration of Human Rights.

It is to be noted that there has been a trend to progressively reduce preventive detention powers and the ISA-like anti-terrorism laws do not exist in countries like the UK, Canada and Australia post 9/11.

The UN Working Group on Arbitrary Detention in its report dated 8 February 2011 stated that the ISA is no longer necessary to be in force in Malaysia since the Penal Code has been amended to make terrorism a specific offence.

Lawyers For Liberty condemns the continued use of preventive laws such as the ISA under the pretext of combatting terrorism as it is tantamount to a gross violation of human rights. There are sufficient laws in Malaysia to combat terrorism and it is the duty of the police to carry out effective investigation and intelligence work to fight terrorist activities which can be established under the existing laws and proved in court.

Lawyers For Liberty therefore demands the immediate release of all ISA detainees and the immediate abolition of the draconian ISA.

Lawyers For Liberty

17 November 2011

Immediate Media Release: 17 November 2011

Detention under the ISA: The lies and hypocrisy of the Government Exposed!

Abolish ISA Movement (GMI) and Suara Rakyat Malaysia (SUARAM) condemn the police and the Malaysian government for arresting 11 people from Tawau under the draconian Internal Security Act (ISA). According to our source, the actual number of individuals arrested is most likely 14 persons.

This heinous act is regrettable because it contradicts with the announcement of the Prime Minister of Malaysia on 15 September in respect of the repeal of the ISA. What is the rationale behind the detention? Is the Prime Minister of Malaysia trying to fool the people of Malaysia with his hypocritical attitude? The PM should be ashamed of this arrest!

According to our sources, the allegations against 11 individuals remain unclear and it is believed that they are associated with terrorism. Here are the names of the detained under the ISA on the 14th and 15th day of November 2011 (not official):

No	Name	Occupation
1	Mohd Nazri Bin Dollah	Religious teacher at SMK Kinabutan
2	Yusof Bin Saripuddin	Poultry dealer
3	Muhd Adnan Bin Umar	Teacher at MJU Tuition Centre
4	Muhd Abduh Bin Umar	Lorry driver
5	Adwan	Not Available
6	Faizal Bin Hamma	Newspapers Distributor
7	Joni @ Muadz	Newspapers Distributor
8	Azmi	Not Available
9	Suriadi	Not Available
10	Darto Bin Bandu	Teacher at MJU Tuition Centre
11	Bakar Bin Baba	Teacher at SMK Umas-umas

The arrest was conducted by police officers from the Department of Special Task Force (Operation Counter Terrorism) Bukit Aman headed by DSP Azman bin Omar. Family/next of kin of the individuals arrested were informed a day later that the arrest is under Section 73(1) AKDN 1960 (ISA).[T1] 

Arrest without warrant, without notice or informing spouses and children is too tragic. The conduct of the arrest is comparable to a robbery as the police officers were well-armed and seized several laptops and a sum of cash.

BN Cannot Live Without ISA

The new detentions confirm the doubts among Malaysians with regards to this repeal. Now it is proven that the announcement of the repeal is insincere and merely for Najib's political interests. ISA is a cruel act that allows for detention without trial, which contradicts with fundamental human rights principles.

The UMNO/BN government has indicated that it cannot sustain itself without the ISA. The UMNO/BN-led government requires a political tool to stay in power and create fear among Malaysians. The ongoing use of ISA has given a blow to the BN’s credibility for the next election as it still maintains the habit of cheating people by using the ISA on a confidential basis.

Abolish ISA Now!

We would also like to remind the Prime Minister that over the past few decades, thousands of people were detained without trial under the ISA not for what they did or said, but based on anonymous and often false accusations from third parties. People have been locked up for crimes that were not proven in a court of law and thousands were left to anguish in secret detention cells around the country over an indefinite period of time.

As such, SUARAM and GMI call upon the Prime Minister to abolish the Internal Security Act and release all the detainees while the abolition is pending. We also call upon the government to stop legislating laws which allows detention without trial and to deal the terrorism issues with the existing laws.

Released by

Nalini Elumalai

GMI Secretariat/SUARAM

019 3758912

Syed Ibrahim Syed Noh

Chairman GMI

013 3682067

GERAKAN MANSUHKAN ISA (GMI)

&

SUARA RAKYAT MALAYSIA (SUARAM)

Kenyataan Akhbar: 17 November 2011

Penahanan dibawah ISA: Pembohongan dan Hipokrasi   Kerajaan Terbongkar !

Gerakan Mansuhkan ISA (GMI) dan Suara Rakyat Malaysia (SUARAM) mengutuk tindakan polis dan kerajaan Malaysia kerana menahan 11orang dari Tawau dibawah Akta Keselamatan dalam Negeri (ISA). Angka ini adalah tidak rasmi kerana  ada sumber yang mengatakan angkanya kemungkinan 14 orang.

Tindakan terkutuk ini amat dikesali kerana ianya bercanggah dengan pengumuman Perdana Menteri Malaysia pada 15 September berkenaan dengan pemansuhan ISA. Apakah rasional disebalik penahanan? Adakah Perdana Menteri Malaysia cuba memperdayakan rakyat Malaysia dengan sikap hipokrasi beliau ? PM perlu berasa malu atas penangkapan ini!

Menurut sumber kami, setakat ini tuduhan keatas 11 orang ini masih tidak pasti dan dipercayai kemungkinan mereka dikaitkan dengan keganasan.

Berikut adalah nama-nama yang ditahan dibawah ISA pada 14 dan 15 haribulan November 2011 (Bukan rasmi):

Bil	Senarai Nama	Pekerjaan
1	Mohd Nazri Bin Dollah	Guru Agama SMK Kinabutan
2	Yusof Bin Saripuddin	Peniaga Ayam
3	Muhd Adnan Bin Umar	Guru Pusat Tuisyen MJU
4	Muhd Abduh Bin Umar	Pemandu Lori
5	Adwan
6	Faizal Bin Hamma	Pengedar Akhbar Harian
7	Joni @ Muadz	Pengedar Akhbar Harian
8	Azmi
9	Suriadi
10	Darto Bin Bandu	Guru Pusat Tuisyen MJU
11	Bakar Bin Baba	Guru Smk Umas-Umas

Tangkapan tersebut dilakukan oleh pegawai-pegawai polis dari Jabatan Pasukan Petugas Khas (Operasi Counter Terorism) Bukit Aman diketuai oleh DSP Azman bin Omar. Keluarga / Waris orang yang ditangkap dimaklumkan sehari kemudian yang mereka ditangkap di bawah Seksyen 73 (1) AKDN 1960 (ISA).

Penangkapan tanpa waran, tanpa notis atau dimaklumkan dilakukan di hadapan  isteri dan anak-anak terlalu tragis. Situasi ini dilakukan oleh pihak polis yang lengkap bersenjata dengan cara yang kasar bagai satu rompakan dan dirampas beberapa komputer riba (laptop) dan sejumlah wang tunai.

BN Tidak boleh Hidup Tanpa ISA

Penahanan terbaru ini mengesahkan kesangsian yang terdapat di kalangan rakyat Malaysia berkenaan pemansuhan ini. Kini ianya amat pasti bahawa pengumuman itu hanyalah untuk kepentingan politik Najib dan tidak serius dan jujur dalam memansuhkan akta zalim ini. ISA adalah akta yang zalim dan yang membenarkan penahanan tanpa bicara di mana ianya bercanggah dengan hak asasi manusia.

Kerajaan UMNO/BN memang tidak boleh bertahan tanpa ISA. Kerajaan UMNO/BN ini memerlukan alat politik ini terus berkuasa dan mewujudkan ketakutan di kalangan rakyat Malaysia.Tindakan penggunaan ISA sememangya telah memberikan satu tamparan kepada kerajaan BN dalam pilihan raya akana datang kerana masih menipu rakyat dengan masih menggunakan ISA secara rahsia.

Mansuhkan ISA Sekarang

Kami juga ingin mengingatkan Perdana Menteri bahawa sejak beberapa dekad yang lalu, beribu-ribu orang telah ditahan tanpa bicara di bawah ISA bukan untuk apa yang mereka lakukan atau berkata tetapi berdasarkan tuduhan tanpa bukti  dan sering palsu daripada pihak ketiga. Orang yang telah ditahan bukan untuk jenayah yang mereka lakukan atau dibuktikan di mana-mana mahkamah dan beribu-ribu dibiarkan merana di dalam sel-sel tahanan rahsia di seluruh negara.

Oleh itu, SUARAM dan GMI menyeru Perdana Menteri untuk  mansuhkan ISA dengan segera dan membebaskan semua tahanan. Kami juga menyeru kerajaan untuk menghentikan menggubal undang-undang yang membenarkan penahanan tanpa perbicaraan dan untuk menangani isu-isu keganasan dengan undang-undang  yang sedia ada.

Dikeluarkan oleh,

Nalini Elumalai

GMI Secretariat/SUARAM

019 3758912

Syed Ibrahim Syed Noh

Chairman GMI

013 3682067