Media Statement – 27/10/2022
Vote Parties/Candidates in GE15 that are committed to abolishing Detention Without Trial(DWT) laws, thus restoring the Right To Fair Trial, and the ability of Judiciary to check abuses of Executive
27th October is Malaysia’s Abolish Detention Without Trial Day, commemorates the draconian Operation Lallang crackdown on 27th October 1987 that saw about 106 persons arrested and detained under the detention without trial law, then being the Internal Security Act 1960. Of the 106, there were human rights defenders including women rights defenders, politicians, academics and others. The Home Ministry also then withdrew the printing and publishing licenses of the Star, Sin Chew Jit Poh and Watan, which was restored almost 5 months later on about 22/3/1988.
The victims then included politicians like Lim Kit Siang(DAP), Lim Guan Eng(DAP), Muhamad Sabu(Amanah) , Ibrahim Ali(PUTRA), Khaled Abu Samad(Amanah), the late P. Patto, the late Karpal Singh and others. Anwar Ibrahim, the leader of PKR was also twice a victim of the ISA, in 1974 and again in 1998. What is disappointing is that many of these, who today are still party leaders, seems to have abandoned their and their party’s commitment to abolish DWT laws. How many Malaysian political parties are for the abolition of DWT laws? This must be made clear in GE15 Manifestos of the various parties/coalitions.
MADPET (Malaysians Against Death Penalty and Torture) reiterates the call for the abolition of ALL detention without trial laws, and state that all persons who are suspected of committing a crime shall be accorded the right to a fair trial, the ability to defend themselves and most importantly be subject to the presumption of innocence until proven guilty must always apply.
Vote Those Who Will Abolish DWT Laws and restore Right to a Fair Trial
All political parties and other independent candidates contesting in the upcoming General Elections(GE15) must make clear a CLEAR commitment to abolish DWT laws, and MADPET calls on Malaysian voters to not vote parties or candidates that want to retain DWT laws, which is a violation of the right to a Fair Trial, and the presumption of innocence until proven guilty.
DWT Laws – Removes Right of Redress of victims for Government Wrongdoing, and BARs Judiciary’s check and balance function
One draconian feature of Malaysia’s DWT laws, is that persons arrested, detained or restricted under this laws have no right in law to challenge the reasons used by the police and the executive. The Malaysian Courts also do not have the right to review the reasons used, and this is unacceptable.
Section 15(1) of the amendment Prevention of Crimes Act 1949 (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.’ Hence, no right to question the REASON the law used, just whether procedure was complied with.
The meaning of judicial review included ‘ (a) an application for any of the prerogative orders of mandamus, prohibition and certiorari; (b) an application for a declaration or an injunction; (ba) a writ of habeas corpus; and (c) any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act. This means that even an innocent person arrested, detained or restricted cannot even later sue to be compensated for wrongful arrest, detention and/or restrictions to his freedoms.
This is also a violation of the Article 5(2) of the Federal Constitution, ‘Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.’. DWT laws deny people this constitutional right, when we cannot ask the court to review the reasons used for detention and/or restrictions.
Similar provisions appear in other DWT laws – which means that the Administration (the Executive), without fear of Judicial oversight and/or intervention, can do as it pleases against any persons in Malaysia, and that is what makes such laws draconian and ought to be abolished.
Remember detentions can be for a period of 2 years maximum, with the ability to extend indefinitely 2 years at a time. Same too is with DWT law ‘restrictions’ after release from detention which could include even meeting certain people, leaving home after some time, not being able to leave certain area and maybe also not being able to contest in elections.
Whilst at present, we may not have prominent personalities under these DWT laws, but many in Malaysia may have been victimized by these laws, or are still being victim of these laws, be it under detention of restrictions.
Sad if Political Parties React if only members/friends become victims
It is a sad state of affairs that even political parties seems not concerned about the victims of these draconian DWT laws, unless one of their leaders or members become victim of these DWT law. They should really be concerned about all victims, who also are denied the right to fair trial, and more so even the right to be compensated for wrongdoings of the authorities.
Possible Abuse of DWT laws for self-interest or wrong reasons.
Now the police, the administration (including the Minister/Board) and/or the Executive can simply arrest, detain and restrict anyone even for some ‘FAKE’ reason. Without Judicial Review, the Courts are BARRED to even determine whether the reason is justified, true or totally false – hence the much-needed check and balance in a democracy is excluded when it comes to DWT laws. It means the police, Minister and executive can do as it pleases, and there will be no remedy for the victim of these government wrong-doings.
The police, Minister or the government can even arrest, detained and restrict a person, he believes may be suspected of having an affair with his wife or for some other ‘personal reasons’ using existing DWT laws, using some possibly fake reason, that cannot be exposed or challenged in court.
Person/s who commit murder or other crimes, where the law provides sentences on conviction, can also escape conviction and sentencing under the law. They can now be arrested under DWT laws, and be walking free a few years later – and, it makes people angry to see such criminals ‘escape’ the punishment provided by law. A murderer, if tried and convicted will be sentenced to death, and one wonders how many were not investigated, charged, tried and sentenced, when the police/State decided to opt to use DWT laws instead.
There is also the possibility of use of DWT laws to protect criminals from prosecution, trials, conviction and sentences provided by law. DWT laws could also be used against potential witnesses of crimes committed by politicians and others.
After ISA’s repeal, the scope of crimes where DWT laws can be used expanded beyond ‘national security’
Malaysia, under the then 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 a wider scope of detention without trial by the amendment Prevention of Crimes Act 1949 (POCA) and a new detention without trial law - Prevention of Terrorism Act 2015 (POTA).
Previously DWT laws was generally confined to matters of national security, and arms related gang activities – but today, it has expanded, for example for POCA today, one new stated category is ‘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.’. So if any crime committed by 2 or more persons, including corruption, murder, theft, rape, kidnaping, or abuse of powers, a DWT law can be used.
The government must disclose the number of persons under DWT laws, under detention and under restriction, and for what government suspected reason. How many persons suspected of criminal conspiracy, corruption, murder, sexual offences, theft and the other offences are under DWT laws?
Suspicion or belief in guilt by the police, Minister or the different DWT law Boards is IRRELEVANT as far as criminal offences are concerned, as what is important at the end of the day is that the Courts are convinced of the alleged guilt of any criminal.
Hence, the continued use of DWT laws to avoid the Rule of Law requirements and the right to a fair trial indicates a bad government.
How many are now under detention? How many are under restriction orders? Is it justified, or is it simply an abuse of power where the innocent may end up victims with no right of redress?
MADPET calls on the Malaysian voter to reject candidates and political parties during GE15 that do not commit to the abolition of Detention Without Trial (DWT) laws, in favour of restoring the Rule of Law, the right to a fair trial to all, and adhering to presumption of innocence until tried and convicted in a court.
MADPET calls on political parties/coalitions and candidates contesting in the upcoming GE15 to clearly state their position on DWT laws, which will also be a declaration of the principles and values they are committed to.
MADPET reiterates our call for the immediate repeal of all DWT laws, including the Prevention of Crimes Act 1949 (POCA), Prevention of Terrorism Act 2015 (POTA) and Dangerous Drugs (Special Preventive Measures) Act 1985. If they are truly guilty, then they will be found guilty, convicted and sentenced by the Malaysian Courts according to law.
MADPET also calls for the immediate and unconditional release of all persons currently detained and/or restricted under DWT laws in Malaysia.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
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