Media Statement – 20/12/2016
Immediately Release Siti Noor Aishah Atam from Restrictions
Under Prevention Of Crime Act 1959 (POCA)
Abolish POCA and All Detention Without Trial Laws and the Security Offences
(Special Measures) Act 2012
We, the 37 undersigned
civil society organisations, trade unions
and groups, are appalled to hear about the case of Siti Noor Aishah Atam, 29 year old Malaysian
woman, who was arrested for the alleged possession of 12 books, detained, tried
and acquitted by court, and thereafter re-arrested and detained under Prevention Of Crime Act 1959 (POCA). We are shocked that
Siti Noor Aishah, despite being acquitted and released by Court, which also
denied the prosecution’s application to continue to detain her under the Security Offences (Special Measures) Act 2012(SOSMA)
pending appeal, was re-arrested and detained, and have now been imposed with
Restriction Orders, which included being fitted with an electronic monitoring
device (EMD).
The case, one of
the very few cases of victims POCA which
had gone to trial, for most victims of POCA and other detention without trial
laws never get the opportunity to get a trial. There are now more than a
thousand victims of POCA, POTA and other detention without trial laws, who have
been or are now still detained without trial and/or subjected to Restriction
Orders, without any opportunity to even challenge the alleged reasons for their
Detention or Restrictions, a gross injustice is being done to them, as many of
whom like Siti Noor Aishah Atam would more than likely be innocent. These
victims have certainly never been proven guilty. As at Sept 30, 2015, 975
people have been detained under Poca(Malaysiakini, 29/11/2016)
Without the
right to judicial review, including habeas corpus application, the risk and
possibility that the innocent are all being now denied their liberty and rights
is totally unacceptable. It is a denial of the fundamental human rights,
including the right to ‘a fair and public hearing by an independent
and impartial tribunal’ (Article 10, Universal
Declaration of Human Rights). Article 11(1) of the UDHR also states that
‘Everyone charged with a penal 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.’
CASE OF SITI NOOR AISHAH BINTI ATAM
Siti Noor Aishah,
who was arrested on 22/3/2016, have been a victim of SOSMA, and now continues
to be a victim of POCA.
On March 22,
2016, Siti Noor Aishah , a University of Malaya Masters of Usuluddin (Islamic
Studies) student, was arrested for allegedly having in her possession, books on
Jemaah Islamiyah (JI), Islamic State (IS) and Al Qaeda (AQ) at her residence at
Lot 1241, Jalan Lapangan Terbang Sura, Dungun, Terengganu at 12.25pm, an
offence the Penal Code.
On April 19,2016,
she was charged in the Magistrate Court
in Kemaman, Trengganu under Section 130JB(1)(a) of the Penal Code which states
that ‘whoever- (a) has possession,
custody or control of; or (b) provides,
displays, distributes or sells, any item associated with any terrorist group or
the commission of a terrorist act shall be punished with imprisonment for a
term not exceeding seven years, or with fine, and shall also be liable to
forfeiture of any such item.’ The case was then transferred to the High Court
in Kuala Lumpur.
On July 25,2016,
she pleaded not guilty and claimed trial at the High Court.
On 29/9/2016,
Judicial Commissioner Datuk Mohamad Shariff Abu Samah, at the close of
prosecution’s case, the judge acquitted and released her, without requiring
Siti Noor Aishah to enter her defence as the court found that the prosecution
had failed to prove a prima facie case against the accussed [‘… pihak
pendakwaan telah gagal
untuk membuktikan suatu kes
Prima facie terhadap
OKT…’ (extract
from the Court Judgment)]
The Judge, amongst
others, in his judgment said, ‘…Apalah
ertinya pemilikan buku-buku tersebut yang dikatakan mempunyai kaitan
dan unsur-unsur pengganas
menjadi suatu kesalahan keatas
sesiapa yang memiliki
buku-buku tersebut, walhal pihak
Kementerian Dalam Negeri
gagal menjalankan fungsi sebenarnya untuk
mengharamkan dan seterusnya menghapuskan buku-buku…’ (What is the meaning when possession of the said
books said to have links and elements of terrorism is an offence against those
found in possession of such books, when the Ministry of Home Affairs fails to
even ban and thereafter destroy such books.)
It was also reported
that the Court, after acquitting Siti Noor Aishah, also rejected the
application of Deputy Public Prosecutor to continue to detain Siti Nor Aishah
in prison pursuant to section 30(1) Security Offences (Special Measures) Act
2012 (SOSMA) whilst waiting for the appeal to be filed by the prosecution against
the decision to acquit. (Bernama
– Sinar Harian, 29/9/2016)
It was recently reported in the
media (Malaysiakini, 29/11/2016), that Siti Nor
Aishah was thereafter arrested and detained under the Prevention of Crime Act
1959(POCA) until Saturday(26/11/2016), and has now been fitted with an
electronic monitoring device (EMD), and asked to report every Friday at the
police station in Bukit Aman for 8 weeks. She is also most likely subjected to
a Restriction Orders(or Police Supervision Orders) under POTA – which could
include inhibitions with regard to movement, restrictions as to the people she
can communicate with, and even restrictions with regard access to the internet
and social media.
Security Offences (Special
Measures) Act 2012(SOSMA)
This law provides for the
uses of ‘special measures’ in security offences cases. After arrest, for the
purpose of investigation, the police can normally hold a suspect for 24 hours,
and if more time is required, the police need apply to a Magistrate for further
remand in a hearing where the suspect can also be represented by a lawyer. The
Magistrate will consider the reasons advanced and the submissions, and
thereafter, if justified, may allow further remand for a specific number of
days. If further remand is needed after that, the police will have to apply
again to the Magistrate, and the maximum number of days of remand permitted is
14 days.
However, when the police
resort to SOSMA, there is no more the need to apply to the Magistrate for
further remand beyond 24 hours, and as such there is no more judicial
intervention, which acts as a necessary check and balance to prevent abuse of
detention powers by the police. SOSMA only requires the authority of a police
officer of the rank of Superintendent or above, to be able to detain a suspect
for up to 28 days. In Siti’s case, this provision of SOSMA was most likely
used, as she was only brought to court to be charged on 19/4/2016, which is
certainly more usual 14 days. SOSMA was also used recently in case of Human
Rights Defender Maria Chin.
In the trial, it was also
disclosed by the prosecutor in the Judgment, that SOSMA was also used for the
purposes of investigation, and it was also used during the trial. SOSMA allows
the use of evidence, which in normal trials would not be admissible by reason
of requirements in the Evidence Act and
the Criminal Procedure Code.
PREVENTION OF CRIME ACT 1959(POCA)
POCA is a
Detention Without Trial law, like the former Internal Security Act(ISA), which
allows for Administrative Detention and/or Restrictions to be imposed on a
person. The Act also denies victims of POCA the ability to challenge the
reasons and/or justification for the said Detentions/Restrictions/Police
Supervision Orders in a court of law. The ousting of the Courts ability to
review the reasons of the government for arresting, detaining and/or imposing
restrictions only encourages abuse, and injustice against the innocent.
The use of POCA
to detain, and now impose restrictions on rights and freedoms of Siti Nor
Aishah, especially after the High Court had heard her case, and acquitted her
is wrong.
Additionally, given
the fact that the court denied the application by prosecution to continue to detain
her until the appeal against her acquittal, we are of the opinion that the subsequent
use of POCA to arrest and detain her may amount to contempt of court, and
certainly a gross disrespect of the court.
The POCA amendments
in 2014 and 2015 extended its usage was extended from just persons involved in
triad gangs, to now also include persons allegedly involved in drug
trafficking, trafficking of human persons, smuggling of migrants and even
terrorism offences. It also covers crimes committed by 3 or more persons.
It must also be
highlighted, that POCA clearly states that the detention under POCA ‘...shall be without prejudice to the taking of any criminal
proceeding against that person, whether during or after the period of his
detention...’ That means that a person detained on the basis of some
allegation, can at a later date also find himself again being charged in court
for a crime based on the same allegations.
POCA, the Prevention Of Terrorism Act 2015(POTA) and other laws that
allows for detention/restrictions without trial
clearly violates human rights, and it must be abolished.
THEREFORE, WE
CALL for the immediate and
unconditional release of Siti Noor Aishah Atam from any Detention or Restriction(Police
Supervision) orders under Prevention Of Crime Act
1959(POCA) or any such Detention Without Trial laws;
CALL for the immediate and
unconditional release of all persons currently being detained/restricted under Prevention Of Crime Act 1959(POCA) or any such Detention
Without Trial laws;
CALL for the repeal of
Prevention Of Crime Act 1959(POCA), Prevention Of Terrorism Act 2015(POTA) any such Detention Without Trial laws;
CALL for the repeal of
Security Offences (Special Measures) Act 2012(SOSMA)
Charles Hector
For and on behalf of the 37
undersigned civil society organisations, trade unions and groups
ALIRAN
AJAR Timor-Leste
Association of
Domestic Home and Maquila Workers. ATRAHDOM- Guatemala
Association of Human Rights Defenders
and Promoters- HRDP, Myanmar
Banglar Manabadhikar Suraksha
Mancha(MASUM), India
BERSIH
Center for Prisoners' Rights, Japan
Center for Alliance of Labor and Human
Rights (CENTRA), Cambodia
Christian Development Alternative (CDA),
Bangladesh
Clean Clothes Campaign(CCC)
Community Development Centre (CDC)
Electronic Industry Employees Union (EIEU) Southern
Region, Peninsular Malaysia
IDEAL (Institute for Development of
Alternative Living)
Japan Innocence and Death Penalty
Information Center
JERIT (Jaringan Rakyat Tertindas)
JKOASM (Jaringan Kampung Orang Asli
Semenanjung)
Kesatuan Kebangsaan Anak Kapal Kabin
Malaysia(NUFAM)/National Union of Flight Attendants Malaysia
MADPET(Malaysians Against Death Penalty
and Torture)
Malaysian Physicians for Social
Responsibility
National Union of Transport Equipment
& Allied Industries Workers (NUTEAIW), Malaysia
North South Initiative
Odhikar, Bangladesh
OHMSI (Oriental Hearts and Mind Study Institute),
Malaysia
Pemuda Persatuan Hokkien Selangor & KL
Persatuan Komuniti Prihatin Selangor & KL
(PRIHATIN)
Persatuan Sahabat Wanita Selangor
Philipping Alliance of Human Rights
Advocates or PAHRA
Programme Against
Custodial Torture & Impunity, India
PROHAM - Society for the Promotion of
Human Rights, Malaysia
Pusat Komas
Saya Anak Bangsa Malaysia(SABM)
SUARAM(Suara Rakyat Malaysia)
Tenaganita
WH4C (Workers Hub For Change)
Women's Centre for Change, Penang (WCC)
Yayasan LINTAS NUSA Batam _ Indonesia
Kuala Lumpur and Selangor Chinese Assembly Hall's (KLSCAH) Civil
Rights Committee
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