Abolish detention without trial, respect right to fair trial

Charles Hector

Published: 27 Oct 2019, 2:43 pm

LETTER | On the occasion of Oct 27, the anniversary of Operation Lallang in 1987, when about 106 persons were arrested and detained under a draconian detention without trial law, we the 16 undersigned organisations and groups call on Malaysia to abolish all existing detention without trial laws, including the Prevention of Crimes Act 1949 (Poca), Prevention of Terrorism Act 2015 (Pota) and Dangerous Drugs (Special Preventive Measures) Act 1985.

In the 1987 Operation Lallang, about 106 persons, including human rights defenders, women activist, politicians, worker rights activist, religious groups and others were arrested and detained without trial under the Detention Without Trial law, Internal Security Act 1960.

The detention without trial law, then and now, does not allow its victims to challenge the alleged reasons for which they have been detained and/or restricted in court, there is no judicial review.

The police arrest and the minister orders the detention/restrictions, whereby now in place of the minister, for Poca and Pota, this power is given to the Prevention of Crime Board and Prevention of Terrorism Board respectively.

Detention orders ad restriction orders could be made indefinitely, two years at a time.

Restriction orders could include being restricted to a particular village/town/district, not being able to leave a place of residence after a certain time and not being able to access the internet. If there is a breach of any of the restrictions, it is a crime punishable by law.

Detention without trial laws repealed but came back stronger

Malaysia, under the previous Barisan Nasional government, repealed the Internal Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of Crime) Ordinance 1969, but thereafter brought in detention without trial by amendment into Poca and enacted a new detention without trial law - the Pota.

Poca, previously a law restricted to triad gangster groups that commit violent crimes, ow had its scope broadened. It now can be used against any persons who are suspected of committing any crime in the Penal Code.

Poca's First Schedule, item 2, today reads: "Persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code."

Poca can also be used against those suspected in terrorism activities, human trafficking, smuggling of persons and even drug trafficking, amongst others.

Torture of detention without trial victims

Under these detention without trial laws - even though there is really no necessity for any confessions or evidence gathering as there will be no trial anyway, and there is no way to challenge in court the reasons for detention - reports of torture has been alleged by victims. Usually, only human rights or political activists are brave enough to do so as many ordinary detainees are just too fearful of further repercussions or retaliation to speak up.

Irene Xavier, social activist, arrested on Oct 31, 1987, said: “I shall always remember how on the ninth day of my detention, I was beaten with a stick. It was the most humiliating experience in my life. I was forced to stand there while an inspector of the Special Branch beat me with a stick to remind me that they were not going to treat women more leniently. I was truly in a state of shock.”

Chow Chee Keong, social activist, arrested on 28 Oct 1987 recounted that an interrogator tried to burn his genitals with a burning rolled-up piece of newspaper. Interrogators pulled his hair, stepped hard on his fingers and toes with their booted feet and whacked his back with rolled-up bundles of newspapers.

Abdul Rahman Hamzah, a former Sarawak State Assemblyman and political secretary to the former Sarawak Chief Minister, was arrested on Sept 20, 1988.

He described how ashtrays were thrown at him and he was beaten and poked with a broom. Abdul Rahman had to do endless strenuous exercises like duck-walking, leap-frogging, crawling on all fours and “swimming” on the floor. All these were aimed at destroying his self-esteem and reducing him to a helpless wreck. If he stopped from exhaustion, they kicked him. A large tin was put over his head and hit hard with a stick. The sound within was deafening and he suffered cuts and bruises all over his head and face. He was also given the notorious “wet treatment”. His face was pushed into a filthy squat-type toilet which was repeatedly flushed.

The incidence of torture of detention without trial victims may be difficult to prove, but the fact that it exists is probable, especially when taking also the consideration of the number of death in police custody and/or death in detention centres.

The Enforcement Agency Integrity Commission (EAIC) after inquiring into the case of Syed Mohd Azlan Syed Mohamed Nur who died in police custody found that police officers had intentionally used violence resulting in the death. They recommended action be taken again these officers for murder.

Recently, it was reported in the Malay Mail that 10 prison warders have been arrested and remanded in connection with the death of a prisoner, who was found dead in his cell, with blunt force trauma wounds to his head and body.

Without fair trial, there's no justification for detention

The fact that one is detained without trial does not mean they cannot be charged and tried in court. As an example, 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."

The fact that we do not hear of such trials and convictions during, or thereafter, their detention without trial makes one question the validity of reasons used for their detentions without trial.

Violation of human rights – The right to a fair trial

Those detained under detention without trial laws are denied their right to a fair trial.

Article 10 of Universal Declaration of Human Rights states: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

Article 11(1) states: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defence."

Article 9 states: "No one shall be subjected to arbitrary arrest, detention or exile."

Victims of detention without trial laws are subjected to arbitrary administrative detention and arbitrary administrative restrictions.

Therefore, we:

Call for the Immediate repeal of all Detention Without Trial Laws, and urge that all persons be accorded the right to a fair trial;
Call for the immediate and unconditional release of all victims of Detention Without Trial; and
Call for Malaysia to respect human rights.

For and on behalf of the following 16 groups:

ALIRAN
EMPOWER Malaysia
Japan Innocence and Death Penalty Research Center
Madpet (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Maruah, Singapore
Marvi Rural Development Organization (MRDO), Pakistan
Odhikar, Bangladesh
Persatuan Komuniti Prihatin Selangor & KL (Prihatin)
Radanar Ayar Association, Myanmar
Sahabat Rakyat
Suaram
Teoh Beng Hock Trust for Democracy
WH4C (Workers Hub For Change)
Banglar Manabadhikar Suraksha Mancha (Masum)
Programme Against Custodial Torture & Impunity (Pacti)

-Malaysiakini, 27/10/2019

# Now, there are 2 more organisations who have joined - see below original statement

Joint Media Statement – 27/10/2019

ABOLISH DETENTION WITHOUT TRIAL RESPECT RIGHT TO FAIR TRIAL

On the occasion of October 27, the anniversary of Operation Lallang in 1987, when about 106 persons were arrested and detained under a draconian Detention Without Trial law, we the 16 undersigned organisations and groups call on Malaysia to abolish all existing Detention Without Trial laws, including the Prevention of Crimes Act 1949 (POCA), Prevention of Terrorism Act 2015(POTA) and Dangerous Drugs (Special Preventive Measures) Act 1985.

In the 1987 Operation Lallang, about 106 persons, including human rights defenders, women activist, politicians, worker rights activist, religious groups and others were arrested and detained without trial under the Detention Without Trial law, the Internal Security Act 1960.

The Detention without Trial law, then and now, does not allow its victims to challenge the alleged reasons for which they have been detained and/or restricted in court – no judicial review.

The police arrest and the Minister orders the Detention/Restrictions, whereby now in place of the Minister, for POCA and POTA, this power is given to the Prevention of Crime Board and Prevention of Terrorism Board respectively.

Detention Orders could be made indefinitely, two years at a time. Likewise Restriction Orders.

Restriction Orders could including being restricted to a particular village/town/district, not being able to leave place of residence after certain time and not being able to access the internet. If there is a breach of any of the restrictions, it is a crime punishable by law.

Some DWT laws repealed but Detention Without Trial came back stronger

Malaysia, under the previous Barisan Nasional government, repealed the Internal Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of Crime) Ordinance 1969, but thereafter brought in Detention Without Trial by amendment into POCA, and enacted a new DWT law being the POTA.

POCA, which was previously a law restricted to triad gangster groups that commit violent crimes, have now had its scope broadened. It now can be used against any persons who is suspected of committing any crime in the Pernal Code. POCA’s First Schedule, item 2 today reads as follows, ‘2. Persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code.’

POCA can also be used against those suspected in terrorism activities, human trafficking, smuggling of persons and even drug trafficking, amongst others.

Torture of DWT victims

Under these Detention Without Trial laws, even though there is really no necessity for any confessions or evidence gathering, as there will be no trial anyway, and there is no way to challenge in court the reasons for detention, reports of torture has been alleged by victims, usually human rights or political activists who are brave to do so, as many an ordinary detainee is just too fearful of further repercussions or retaliation to speak up.

Irene Xavier, social activist, arrested on 31 Oct 1987 - “I shall always remember how on the ninth day of my detention, I was beaten with a stick. It was the most humiliating experience in my life. I was forced to stand there while an inspector of the Special Branch beat me with a stick - to remind me that they were not going to treat women more leniently. I was truly in a state of shock.”

Chow Chee Keong, social activist, arrested on 28 Oct 1987 - An interrogator tried to burn his genitals with a burning rolled-up piece of newspaper. They pulled his hair, stepped hard on his fingers and toes with their booted feet and whacked his back with rolled-up bundles of newspapers.

Abdul Rahman Hamzah, a former Sarawak State Assemblyman and political secretary to the former Sarawak Chief Minister, arrested on 20 Sept 1988 - They threw ashtrays at him and beat and poked at him with a broom. He had to do endless strenuous exercises like duck-walking, leap-frogging, crawling on all fours and “swimming” on the floor. All these were aimed at destroying his self-esteem and reducing him to a helpless wreck. If he stopped from exhaustion, they kicked him. They put a large tin over his head and hit it hard with a stick. The sound within was deafening and he suffered cuts and bruises all over his head and face. He was also given the notorious “wet treatment”. They pushed his face into a filthy squat-type toilet and flushed it repeatedly.

The incidence of torture of Detention Without Trial victims may be difficult to prove, but the fact that it exist is probable, taking also the consideration of the number of death in police custody and/or death in detention centers.

The Enforcement Agency Integrity Commission (EAIC) after inquiring into the case of Syed Mohd Azlan Syed Mohamed Nur, who died in police custody, found that police officers had intentionally used violence resulting in the death. They recommended action be taken again these officers for murder.

Recently, it was reported that 10 prison warders have been arrested and remanded in connection with the death of a prisoner, who was found dead in his cell, with blunt force trauma wounds to his head and body.(Malay Mail, 23/10/2019).

Detention Without Trial But No Fair Trial Thereafter makes justifications used for Detention lame

The fact that one is detained without trial, does not mean they cannot be charged and tried in court. As an example, 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.’

The fact that we do not hear of such trials and convictions, during or thereafter their detention without trial makes one question the validity of reasons used for their detentions without trial.

Violation of Human Rights – The Right to Fair Trial

Those detained under DWT laws are denied their right to a fair trial.

Article 10 of Universal Declaration of Human Rights states, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’

Article 11(1) 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.’

Article 9 states ‘No one shall be subjected to arbitrary arrest, detention or exile.’

Victims of DWT laws are subjected to arbitrary administrative detention, and even arbitrary administrative restrictions.

THEREFORE, we

- Call for the Immediate repeal of all Detention Without Trial Laws, and urge that all persons be accorded the right to a fair trial;

- Call for the immediate and unconditional release of all victims of Detention Without Trial; and

- Call for Malaysia to respect human rights.

Charles Hector

For and on behalf of the 16 groups listed below

ALIRAN

EMPOWER Malaysia

Japan Innocence and Death Penalty Research Center

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility

MARUAH, Singapore

Marvi Rural Development Organization (MRDO), Pakistan

Odhikar, Bangladesh

Persatuan Komuniti Prihatin Selangor & KL (PRIHATIN)

Radanar Ayar Association, Myanmar

Sahabat Rakyat 人民之友 மக்கள் தோழர்கள்

SUARAM

Teoh Beng Hock Trust for Democracy

WH4C (Workers Hub For Change)

Banglar Manabadhikar Suraksha Mancha (MASUM)

Programme Against Custodial Torture & Impunity (PACTI)

Now, 18 including:-
Oriental Hearts & Mind Study Institute – OHMSI
Center for Alliance of Labor and Human Rights (CENTRAL), Cambodia