Thursday, December 06, 2018

PH,do not be like BN - Restore Moratorium On Use Of Draconian Laws And Immediately Release Those Detained Without Trial (MADPET)

Media Statement:- 6/12/2018


Pakatan Harapan risk becoming like previous government after coming into power? 

MADPET (Malaysians Against Death Penalty and Torture) is shocked with the announcement that the government is lifting the moratorium of the use of draconian laws like Sedition Act 1948, Section 233 of the Communications and Multimedia Act 1998 (CMA); Security Offences (Special Measures)  Act 2012 (SOSMA); the Prevention of Terrorism Act (POTA) and the Prevention of Crime Act 1959 (POCA). Amongst the Pakatan Harapan election promises was the abolition of these draconian laws, and in October 2018, the announcement of the Cabinet decision to impose a moratorium on application of these laws pending abolition/amendment was hopeful. We hoped we will finally be rid of the bad laws but now the government backtracks and says it will use these laws.

The Communications and Multimedia Minister Gobind Singh Deo was reported saying, that "The use of this act (in the moratorium) will continue for now. The proposed amendments are still in process, and will be announced when the government is ready to formulate a new policy,"(New Straits Times, 3/12/2018).

Administrative Power To Detain People Without Judicial Oversight Is Unjust

To prevent police and government abuse of power, the law provides that a person arrested shall be brought before a Magistrate for a remand application, if the police need to detain a suspect for more than 24 hours. During this application, the Magistrate will consider the police’s reasons, and the arguments of the suspect (and/or his/her lawyer), and then decide justly whether to refuse the police application, or to grant the said remand application. If the remand application is granted, then the Magistrate will grant a remand order for a fixed number of days. If the police after the expiry of this remand period, they can come again and apply for further remand but the maximum shall generally not be more than 14 days from the date of arrest.

If SOSMA, POCA and/or POTA is used, then this check and balance provided by the Magistrate to prevent abuse of powers and miscarriage of justice by the police, enforcement agencies and/or government, brought about by prolonged and unnecessary detention of suspects, is avoided. 

If SOSMA is used, then there is no more the requirement for the police to bring the person arrested before the Magistrate within 24 hours. The police can simply continue to detain the ‘suspect’ for up to 28 days. 

If POCA and POTA are relied on, the need to produce before a Magistrate within 24 hours is still there, but if POCA is going to be used, then they can get a remand order for 21 days. 

Magistrate’s ability to evaluate the reasonableness of further remand and for how long is completely removed by the police using SOSMA, POCA and/or POTA.

Depriving the Innocent Of Employment And Income Is Wrong

For workers, this prolonged detention in remand, means possible loss of employment. Workers may have to utilize their limited annual leave, and when that is over, some employers may allow for unpaid leave but others may simply dismiss the worker. 

For the self-employed or in small business, this detention results in a loss of income which will seriously impact the well-being of their families and dependents, even children. Malaysia, at the moment, still do not have a criminal compensation scheme that would compensate detention of the innocent, being those that ultimately are not charged in court and/or found guilty after a fair trial.

Denied Fait Trial and subjected to administrative detention/restriction

For the Detention Without Trial laws like POCA and POTA, it is even more unjust – as the reasons used for the Detention/Restrictions imposed still cannot be challenged in court. It is most disappointing that this new Pakatan Harapan government, who has so many leaders, who had been in the past personally been victims, or a family members of victims of such draconian Detention Without Trial laws, today takes the position that these laws can be still used.

The PH government should have immediately released all in Detention/Restriction under Detention Without Trial Laws but sadly, the government has been silent. Repealing such laws was a promise but then we have heard little about this.

Sufficient Laws Available Without Having to Resort to Draconian Unjust Laws

Following the incident at a temple in Selangor, which saw many arrests, the PH government seem to have abandoned its principles, and is resorting to use that very same bad laws that they wanted to get rid of.

There are sufficient laws available in Malaysia, and as such there is really no need to resort to these draconian laws, which we all know is unjust, and ought to be speedily repealed.

MADPET is disappointed with the procrastination of the Pakatan Harapan government in repealing these bad laws and/or provisions in law. The principle that no one should be presumed guilty until they have been tried and convicted after a fair trial, is something the government must never forget and always practice. 

MADPET urges the Malaysian government to be strong and committed to justice, and re-impose the moratorium on the usage of these draconian laws including the Sedition Act 1948, Section 263,  233 and such vague provisions of the Communications and Multimedia Act 1998 (CMA); Security Offences (Special Measures)  Act 2012 (SOSMA); The Prevention of Terrorism Act (POTA) and the Prevention of Crime Act 1959 (POCA);

MADPET calls on the government of Malaysia to immediately repeal all bad draconian laws, given that almost 7 months have passed since the new government came into being;

MADPET calls on the Attorney General to expedite the preparation of the required Bills for the repeal of draconian laws, and to advice the Prime Minister and the Cabinet to not backtrack or use these bad laws pending repeal; 

MADPET calls for the immediate and unconditional release of all those currently still being detained and/or restricted under Detention Without Trial laws;

MADPET urges the government to not use SOSMA or the Detention Without Trial laws, which oust the ability and powers of the Magistrate and/or Courts to effectively ensure that the police and/or government do not abuse their powers, especially in the detention of mere suspects, not even accused persons, for long durations;

MADPET urges the government to demonstrate care for families especially children, whose parent suffers the risk of loss of employment and/or income due to detention for a long period. The government should ensure suspects in prolonged detention do not lose their employment, and possibly ensure that they be fully paid by employers during such police and/or government detention;

MADPET urges the government to enact a law that provides for compensation for loss of liberty, for persons detained who never are charged and/or convicted. It is wrong to deny an innocent person their liberty and means of earning and not compensate them.

MADPET urges the government to adhere to its promises to uphold the cause of justice, human rights and the rule of law;

Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

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