Media Statement – 24/10/2024
GISBH should not be considered an ‘organized criminal group’ like Triads and crime gangs that commit serious offences of violence, murder, etc.
Charge them for child abuse, AMLA offences which has been alleged in the media, if there is sufficient proof. No to pre-conviction punishments.
MADPET (Malaysians Against Death Penalty and Torture) is most concerned that GISB Holdings Sdn Bhd (GISBH), a company, has now been considered an ‘organized criminal group’ by Malaysia.
We believe that it is best and reasonable that ‘organized criminal groups’ be limited to Triads and criminal gangs that engage in serious crimes of violence, extortion, murder, etc. It is not right and dangerous to define it broadly as crimes committed by more than one of any Penal Code offences. Is GISBH now an ‘‘organized criminal group’ in Malaysia?
On 23/10/2024, GISBH chief executive officer Datuk Nasiruddin Mohd Ali, his wife together others, total being thirteen men and nine women, were charged Selayang Sessions Court on Wednesday (23/10/12024) under Section 130V (1) of the Penal Code, for being members of organized crime gang. The said Section 130V(1) reads, “(1) Whoever is a member of an organized criminal group shall be punished with imprisonment for a term of not less than five years and not more than twenty years.’
The Penal Code, in Sec 130U now says that "organized criminal group" means a group of two or more persons, acting in concert with the aim of committing one or more serious offences, in order to obtain, directly or indirectly, a material benefit, power or influence;’ Serious offences was previously defined in that law as ‘…any offence punishable with imprisonment for a term of ten years or more…’ but that definition was deleted by Penal Code (Amendment) Act 2014, where the amending provision read, ‘The Code is amended in section 130U by deleting the definition of “serious offence”.’
This means that today that if anyone commits any crime, however small, with another or more risks the possibility of being charged as a member of an ‘organized crime gang’ under Section 130V of the Penal Code, and since that Chapter VIB Organized Crime of the Penal Code is listed as Security offence in the First Schedule in Security Offences (Special Measures) Act 2012(SOSMA), then SOSMA applies.
Thus, 2 persons or more engaged in a consensual act of Sodomy, theft, murder, illegal assembly or any crimes whatsoever are at risk of being charged for organized criminal group crimes, and SOSMA will apply. The other crimes listed under this Chapter VIB include assisting, harboring, consorting, etc.
MADPET (Malaysians Against Death Penalty and Torture) is unhappy with this situation, as the 2014 re-definition of term ‘organized criminal groups’ is just too broad, and can easily be abused by the government of the day. This term should be restricted to triad groups, mafia like groups and criminal gangs that commit serious criminal offences involving violence or extortion.
‘…As of last year, 72 active criminal organisations that posed a significant threat to national security were operating in the country, said former director of the Federal Police Crime Investigation Department (CID) Datuk Seri Abd Jalil Hassan…’Sun, 9/12/2023 ‘Malaysia Crime Prevention Foundation (MCPF) senior vice-chairman Datuk Seri Ayub Yaakob said criminal activities by gangs present a significant concern to communities. “Their activities encompass extortion, money laundering, drug trafficking, robberies and prostitution. “Such criminal activities undermine community well-being and jeopardize public safety…’ Should the company GISBH justly be considered a ‘criminal organization’?
Not Police Only, But An Independent Body To Decide Whether A Group Is A ‘Organized Crime Gang’
GISBH, in our opinion does not fall into this category. We also need to look at the process how a group is defined as a ‘organized crime gang’ in Malaysia. It certainly should not be done by the police alone, but possibly some independent body that would possibly include parliamentarians.
When any group is listed as ‘organized crime gang’, their crimes will not only be SOSMA offences, but they also risk becoming victims of the Detention Without Trial laws like Prevention of Crime Act 1959(POCA)
Prevention Of Crime (Amendment of First and Second Schedule) Order 2014 changed ‘2. Persons who belong to any group, body, gang or association of five or more persons who associate for purposes which include the commission of offences involving violence or extortion.’, by substituting for the words "involving violence or extortion" the words "under the Penal Code"; Now, it reads ‘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.’
To prevent abuse and miscarriage of justice, more so after the 2014 amendments to the Penal Code and POCA diluted the definition organized crime, so much so that it can now apply to anyone who committed any crime with another or more persons, MADPET calls for an independent body to decide whether a particular group or groups of persons ought to be considered a ‘organized crime gang’ or NOT.
GISBH – From Child Abuse, ‘Deviant Islam’, AMLA Offences, … Now ‘Organized Crime Gang’?
Malaysians are waiting for those in GISBH to be charged, tried and convicted with the offences that led to the ‘crackdown’ on GIBSH being child abuse, child offences, offences against under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Act 2001 (AMLA Act) that justified freezing of accounts; and other crimes. Given the impression that GISBH investigation have been long carried out, one wonders why there is a delay in prosecution and trial?
Pre-Conviction Punishment Must Be Abolished
SOSMA is draconian legislations, where amongst others Parliament ousted judicial functions to decide on Bail, which means those charged with SOSMA listed offences will languish in detention until the end of trial, and grave injustice to those who ultimately is found not guilty. This pre-conviction mandatory detention is a form of pre-conviction punishment of the still presumed innocent person must be abolished.
If Charged, Prosecution Is Ready To Start Trial And Prove Prima Facie Case
The 22 were charged at the Sessions Court, but only the High Court has the jurisdiction to try any SOSMA cases, and as such, they must be immediately brought before the High Court and charged, and their trial should be expedited and completed soonest, as they are denied Bail by law. It is disturbing that they have yet to be charged at the High Court, and oddly the Session Court fixed a mention date on December 23, and the question is WHY? (Bernama, 23/10/2024)
Justice Harun reminded us that the legal principle in Malaysia ‘…is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice...’ [Public Prosecutor V. Tan Kim San [1980] CLJU 66[1980].
This means that the prosecution is already ready to start the trial, and prove a prima facie case against all 22, and as such there is no reason to delay the trial. Delay will imply that prosecution is not yet ready, which means the 22 have wrongly been charged, and this is unacceptable.
Expedite Trials Of All In Detention Pending Conviction – About 30,000?
MADPET calls for all criminal trials of those who are in detention pending conviction, who have been denied BAIL, must be expedited and finished fast, preferably not later than 6 months from the date they have been charged. If the prosecution charges anyone, they, the prosecution, must already ready to proceed with trial.
In mid-2021, about 41.7% of those in Malaysian prisons had not yet been tried, convicted and sentenced, according to World Prison Brief, which obtains information from Malaysian government sources. If there are about 75,000 people in Malaysian prison, that will mean about 40% (or 30,000) are inmates who have not yet been tried, convicted or sentenced.
Unlike the 1MDB case, which led to legal actions being taken in many different countries, we do not see similar reaction in the many other countries where GIBSH, its subsidiaries and related companies are currently operating.
As the GISBH is also allegedly a case of Islamic deviants, one wonders whether Muslim police or law enforcement officers are able to act independently when it comes to investigation of the other crimes not religious crimes, or is it better that the investigations are led by officers who are not Muslims to ensure a more professional investigation. Religion and other prejudices are known to impact investigation and prosecution.
MADPET calls for the amendment of law to re-define strictly the meaning ‘organized criminal groups’ to restrict it to Triad or criminal gangs that commit serious criminal offences involving violence or extortion. Organized criminal groups, just like Terrorist groups, must be determined and listed in law by preferably an independent body, not just law enforcement agencies.
MADPET reiterate the call for the repeal of SOSMA, and, in the interim period SOSMA be amended to allow the Court to determine the question of Bail. Now, Parliament has ousted the court’s powers to determine the question of Bail;
MADPET calls that all criminal trial, where the accused are in pre-conviction detention by reason of unavailability of bail, not being able to pay in advance the Bail amount by reason of poverty, etc. or to provide the needed surety, etc. be expedited and completed soonest not later than 6 months. This is needed to prevent gross miscarriage of justice, more so when the courts, after trial, finds them not guilty. In Malaysia, no law that provides compensation for these persons who had to unnecessarily languish in prison until the end of their trial.
In the case of the GISBH 22, MADPET calls for them to be immediately charged in the High Court, and the trial speedily commenced by the Prosecution, to end no later than within 6 months. We do not want the innocent to suffer ‘pre-conviction’ punishment.
“The police investigate, the judges deliver the sentence. Before a sentence is passed, suspects should not be punished beforehand,” PM Anwar Ibrahim was quoted as saying at the 25th Suhakam anniversary. (Malay Mail, 9/9/2024). Now, pre-conviction detention is also pre-conviction punishment before the judges deliver their sentences.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
Note: A friend drew my attention that in 2014 amendment of the Penal Code, that when the definition of serious offences was deleted in section 130U, a new section 52B was inserted
52B. Serious offence
The words "serious offence" denote an offence punishable with imprisonment for a term of ten years or more.'.
However, noting that section 130U was a specific interpretation provision for CHAPTER VIB ORGANIZED CRIME, one wonders whether the new section 52B definition will also apply to this Chapter - we need to wait for the Courts to make a finding one way or the other to be sure.
See also
Yusoff Rawther - Languishing in Detention Since 12/9/2024? No High Court Judge used Revisionary Power? DPP/AG not DNAAed? Lawyer files new application, not for Revision?
BERNAMA, 23/10/2024
“Wrong to consider GISBH an ‘organised criminal group’ in the likes of triads, crime gangs”
GISBH CEO, wife, Abuya’s son, others charged with organised crime activity
KUALA LUMPUR, Oct 23 — GISB Holdings Sdn Bhd (GISBH) chief executive officer Datuk Nasiruddin Mohd Ali, and his wife, Azura Md Yusof, were charged today at the Selayang Sessions Court with being part of an organised crime group.
National news agency Bernama reported that the son of of Al-Arqam founder Ashaari Muhammad, Mohammad Adib At-Tarmimi, was also charged.
Others also charged with the offence include: Mohd Shukri Mohd Noor, Muhammad Afdaluddin Latif, Mohamad Sayuti Omar, Mohd Fazil Md Jasin, Mohd Dhirar Fakhrur Razi, Mokhtar Tajuddin, Muhammad Fajrul Islam Khalid, Abu Ubaidah Ahmad Shukri, Shuhaimi Mohamed, Hasnan Abd Hamid, Muhammad Zahid Azhar @ Nadzri, Khalilatul-Zalifah Mohammad Jamil, Nur Jannah Omar, Hamimah Yakub, Asmat @ Asmanira Muhammad Ramly, Nurul Jannah Idris, Siti Salmiah Ismail, Siti Hajar Ismail, and Mahani Kasim.
The thirteen men and nine women indicated they understood the charges after they were read separately before Judge Lailatul Zuraida Harron @ Harun.
No plea was recorded as the Security Offences (Special Measures) Act 2012 (Sosma) was invoked, meaning the case falls under the jurisdiction of the High Court.
All 22 are accused of committing the offence at a GISBH premises in Bandar Country Homes, Rawang, between October 2020 and Sept 11, 2024.
The accused, aged between 27 and 72, were charged under Section 130V(1) of the Penal Code, which is punishable by imprisonment of between five and 20 years, upon conviction.
Lawyer Datuk Rosli Kamaruddin later asked the judge if bail applications would be made in her court or the High Court, to which she said the latter.
However, she said the accused were entitled to medical attention if needed.
Linked to the banned Al-Arqam sect, GISBH is at the heart of a national child sexual abuse and human trafficking scandal that has horrified the country. - Malay Mail, 23/10/2024
Recalling ‘black eye’ in 1998, PM Anwar backs protection for detainees to prevent lock-up abuses, says willing to join Suhakam checks
KUALA LUMPUR, Sept 9 — Prime Minister Datuk Seri Anwar Ibrahim today said his government is fully committed to resolving custodial abuses and deaths in Malaysia.
He said his personal experience 26 years ago has shown him the necessity to ensure there is adequate protection for all detainees from potential abuses.
“When people talk about concerns regarding abuse and deaths in lockups, there’s no need to convince me because I know how it feels, and we feel it seems helpless when you’re assaulted to near death in the lockup,” he was quoted by Bernama as saying at the 25th anniversary celebration of the Human Rights Commission of Malaysia (Suhakam) here this evening.
The 77-year-old recalled his experience at being beaten while in police custody in 1998 when he was deputy prime minister and detained for suspected corruption and sodomy, which resulted in the widely reported “black eye” incident.
Anwar said Datuk Seri Mohd Hishamudin Md Yunus – the current Suhakam chairman – was among several people who stepped forward to defend him back then.
“We need to support all efforts necessary to protect the suspect or convict in the lockup, and I’m pleased to say that both the home minister and Inspector-General of Police support the idea.
“(But) their concern and also my concern is that not everyone who comes out with cuts, injuries or even dies in the lockup is necessarily due to police abuse. That is why we need proper procedures and protection,” he was quoted as saying.
He said various measures have been put in place to ensure detainees’ rights, including abolishing the Internal Security Act 1960 and mandatory death sentences, although these steps have caused some concern in society.
Anwar also said he is willing to join Suhakam’s visits to police lockups to check on the conditions of the detainees.
“The police investigate, the judges deliver the sentence. Before a sentence is passed, suspects should not be punished beforehand,” he was quoted as saying.
Other dignitaries present at Suhakam’s anniversary
celebration included Minister in the Prime Minister’s Department (Law
and Institutional Reform) Datuk Seri Azalina Othman Said. - Malay Mail, 9/9/2024
30,000 ‘innocent’ people languish in Malaysia’s overcrowded prisons – Madpet
In mid-2021, about 41.7% of those in Malaysian prisons had not yet been tried, convicted and sentenced, according to World Prison Brief, which obtains information from Malaysian government sources.
They are called pre-trial detainees or remand prisoners, and this means they are innocent, as stated in Article 11(1) of the Universal Declaration of Human Rights, which reads:
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.
The Malaysian Prison Department disclosed on 3 February that Malaysian prisons are packed to overflowing. It said the number of inmates in prisons nationwide exceeds its current maximum capacity of 4,200 by 36%.
This rate is based on international regulations. “Measures to reduce congestion will continue with the cooperation of various agencies that will also focus on reducing the number of remand prisoners,” the department said in a statement.
In October 2022 Prison Department director general Nordin Muhamad revealed there were 82,539 prison inmates. Of that number, 76,336 were in prison while 6,203 had been placed in community rehabilitation programmes.
Prison overcrowding would be resolved if the majority of these pre-trial or remand detainees are released on bail pending the end of trial. Most of these are the poor, who simply cannot afford bail.
Denial of bail for serious crimes like murder may be justifiable.
Statutory denial of bail by laws like for all Security Offences (Special Measures) Act (Sosma)-listed offences must also end.
Let judges decide on bail. [Those charged with] lesser offences not resulting in death or grievous bodily harm should be entitled to bail.
30,000 ‘innocent’ in prisons
If there are about 75,000 people in prison, that will mean about 40% (or 30,000) are inmates who have not yet been tried, convicted or sentenced.
Poverty is one of the key reasons why those not yet tried and found guilty are in prison. They simply cannot afford to post bail, as they have no acquaintance or family member who are rich enough and willing to place the bail sum, which could be thousands of ringgit, in court.
The surety who places the bail money simply would not be able to use this money until the trial is over. Many poor people simply cannot afford to post bail if it means they will not be able to have access to it even in times of need.
Consider the rich like Deputy Prime Minister Zahid Hamidi, who is out on RM2m bail while his criminal trial proceeds. But many among the poor simply cannot even raise the bail amount, let alone find sureties willing to post bail sums amounting to thousands of ringgit.
In Thailand, with the passing of the Justice Fund Act, BE 2558 (2015), legal assistance is now provided by the government and made available to low-income people so that they can have a proper legal defence in court and can be released immediately on bail while awaiting their trials to end.
Between 1 October 2021 and 31 March 2022, the fund has approved THB190m to help low-income people related to lawsuits against them … helped 1,425 people fight legal cases in court … also provided money to help 473 people offer financial guarantee for release on bail.
Malaysians Against Death Penalty and Torture (Madpet) calls on Malaysia to consider and set up a similar fund that will give the poor access to money that can be used for bail so that they no longer need to languish in prison until the court decides, after trial, whether they are guilty.
Expedite trials of 30,000 detainees
Remember that these are people who did not plead guilty and who demanded trial. If they are to be remanded until the end of their trial, these trials must be expedited and targeted to end within three months or sooner – noting that after trial, they may be found to be not guilty.
As it is, Malaysia still does not have a criminal compensation act that will compensate the innocent victims for the detention and suffering they endured until the court finds them not guilty.
When the innocent plead guilty…
It must be acknowledged that many innocent people, especially the poor, plead guilty so they can serve their sentence and move on with their life. The reason could be poverty and the fact that if they do not plead guilty, they would still end up as pre-trial or remand detainees in prison for an undefined period – for no one knows when their trial will proceed and end.
It is sad that many may be in prison for a term longer that the sentence that might be imposed if they had pleaded guilty fast. There is a loss of faith in the criminal administration of justice.
As trials are delayed, many innocent pre-trial or remand detainees in prison may still end up pleading guilty, because of delays in trial. They choose to abandon their quest for justice, which they had hoped to get from a fair trial.
The problem thus may be with the courts – the inadequacy of judges and courts to ensure speedy trial.
Madpet calls for an increase in the number of judges and courts so that we can speedily reduce the pre-trial or remand detainees in prison to at least fewer than 5% of total prison inmates.
Programmes to reduce the prison population in Malaysia to date seem to affect only the convicted serving their sentence, not the pre-trial or remand detainees in prison.
The initiatives implemented since 2008 – such as the parole system, compulsory attendance orders, resident reintegration programmes, licenced prisoner releases and community rehabilitation programmes could reduce overcrowding in prisons across the country – are really for the prisoners who are already convicted and serving their sentence.
Provide lawyers to all detainees
The Malaysian government did not provide legal aid for suspects and accused in criminal cases until about 2012, and thus the Malaysian Bar, with its own funds and lawyers, filled this gap.
Only since 2012, through the National Legal Aid Foundation scheme, did the government step in to provide financial payments for lawyers providing legal aid for criminal matters.
However, foreigners are generally still excluded, and they can only rely on the Malaysian Bar’s legal aid lawyers or lawyers who come in on their own to act pro-bono or with minimal fees.
Noting that many of the pre-trial or remand detainees in prison today are foreigners, Madpet calls on the Malaysian government to provide legal aid lawyers for all, as this will also help expedite and ensure a fair trial.
The major problem with the overcrowding in prisons is the large percentage of pre-trial or remand detainees, and Malaysia must urgently expedite trials and take steps to reduce the number of pre-trial or remand detainees.
Maybe the courts should review the bail amounts and conditions of all pre-trial or remand detainees, and the government should assist, even financially, to ensure that no innocent person languishes in prison before they are tried, convicted and sentenced.
After all, even Najib Razak, after conviction, was allowed out on bail, until the end of his final Federal Court appeal.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet) - ALIRAN Website
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