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
Whereas:
(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Order and Crimes Prevention) Ordinance 1969 have been repealed.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which came into force on 31 July 2012 vide section 32(1), and repealed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1969 was also repealed in 2013.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the now repealed draconian ISA, there shall be no judicial review with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. . . .’ (Bernama — Sinar 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.
SOSMA — A New ESCAR
(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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