MADPET(Malaysians Against Death Penalty and Torture) is most concerned when Malaysia’s new government, vide the Home Affairs Minister, in his Reply to a Parliamentary question dated 15/8/2018, tells us that this government plans to continue to use draconian laws like SOSMA [Security Offences (Special Measures) Act 2012] and POCA [Prevention of Crime Act 1959].
‘'...Kerajaan akan terus menguatkuasakan undang-undang untuk memelihara keselamatan negara....(Goverment will continue to enforce laws to preserve national security...), was the words used in the response contained in the reply by the Menteri Dalam Negeri to a Parliamentary Question by Member of Parliament Maria Chin bin Abdullah dated 15/8/2018 who asked about POCA and SOSMA.
The government reply also did state that a review was being done to see if the usage of such laws are in compliance (or consistent) with human rights norms. [‘…untuk melihat sama ada pengunaan akta-akta ini selari dengan norma-norma hak asasi manusia…’]
It is most disappointing when the Malaysian government takes such a stance, and really, there is no justification to procrastinate or delay the repealing of these and other anti-human rights laws.
The correct position is to now impose an immediate moratorium pending repeal of all such laws – no one else in Malaysia should be made victims of SOSMA, POCA and other Detention Without Trial laws, Sedition Act and such bad laws.
Is the usage of these laws in line with human rights norm?
It is a ‘bad’ joke or a foolish proposition for this NEW government to even suggest a review to find out whether POCA and such Detention without Trial laws are consistent with human rights norms. It has been the stance taken by the Malaysian Human Rights Commission (SUHAKAM), Malaysian Bar, Civil Society and Human Rights Groups, and even the then Opposition Parties and their leaders for many years.
POCA and Detention without Trial (DWT) Laws violates Human Rights
Detention without Trial (DWT) laws clearly violates Human Rights.
Article 10 of the Universal Declaration of Human Rights (UDHR) clearly states that, ‘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.’ DWT laws deny the right to a fair trial, and allow the government to detain and/or restrict persons indefinitely without trial.
Article 11(1) states, ‘(1) 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.’
POCA and such DWT laws enable the police (or the government of the day) to subject persons to ‘…arbitrary arrest, detention or exile’. There is no need for any trial, or even any court order. Worse still, is that DWT laws can be used against a person for any alleged reason, which may also be ‘fake’ or false, and the victim cannot even challenge the said alleged reasons used to justify the arrest, detention and/or restrictions by way of judicial review. The judiciary’s power to ensure that there is no wrongdoing on the part of the Executive is curtailed – the courts cannot make sure whether an innocent person has been wrongly detained and/or restricted for a wrong or false reason.
POCA, was amended, amongst others in 2014, and now it is so wide that it can be used against almost anyone, which really may not matter because the law itself prevents a challenge of the very reason for which it was used.
Today, after these amendments, even former Prime Minister Najib could be arrested and detained under POCA, which now can also be used even in cases where allegedly ‘…two or more persons who associate for purposes which include the commission of offences under the Penal Code..’ – it now covers all offences under the Penal Code – no anymore just crimes "involving violence or extortion".
SOSMA violates Human Rights and even denies a fair trial
SOSMA, which may be the replacement of the Essential (Security cases) Regulations 1975 (ESCAR), allows the police to override the existing provisions in our Criminal Procedure Code and the Evidence Act, that really are there primarily to ensure justice be done and human rights respected.
Our Malaysian Federal Constitution in Article 5(4), states amongst others, ‘…(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority…’.
However, if the police rely on SOSMA, 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.
Now, the Criminal Procedure Code also sets the maximum period of remand for the purpose of investigation is 14 days, but if SOSMA is used, then no need to even bring the suspect before a Magistrate or get remand orders from a Magistrate, and one can simply be detained for up to 28 days.
The bringing before a magistrate, and the requirement of a remand order by a Magistrate is a necessary ‘check and balance’ to prevent police abuse of their powers including torture. There have been way too many allegations of torture and even deaths in police custody. There were 110 lock up deaths from 2010 until 2016 in Malaysia. In a Bar statement dated 23/4/2018, it was stated that, ‘The Malaysian Bar is appalled that two more men have died while in police custody, within the space of merely a few weeks.’.
The need to bring before a Magistrate within 24 hours and the need for application to the Magistrate for further remand orders, gives the Magistrate the opportunity to ensure no police wrongdoings, and that these further detentions are really needed for investigation purposes and not for some other ‘wrong’ or illegal objectives, including maybe the ‘torture’ of suspects.
If SOSMA is relied on when a person is charged in court, bail will be denied, meaning the accused innocent person will have to stay in prison until his/her trial is over. Even if the court finds him/her not guilty, using SOSMA, the prosecution could still ask that he/she continued to be detained until the subsequent appeals are done and disposed off.
If SOSMA, is used during trial, normal Evidential and Criminal Procedural requirements can also be ignored. What is not admissible in normal criminal trials could become admissible if SOSMA is used. These evidential and procedural requirements are there to ensure a fair trial, and that justice is done.
SOSMA can only be used for security offences, which now includes that vague newly introduced draconian offences by past regime criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B-J Penal Code) which is also under Chapter VI – Offences Against The State.
In November 2016, Maria Chin Abdullah(then Bersih 2.0 chairman) herself, was arrested and detained under Section 124C of the Penal Code that prohibits the attempt to commit activities detrimental to parliamentary democracy. SOSMA was used here..(Malay Mail, 20/11/2016)
Failure To Answer The Question – Disclose All Answers On Parliamentary Website
In this Parliamentary Reply, the government also did reveal that until July 2018, 592 persons were detained under SOSMA (510 Malaysians 10 foreigners), of which 102 Malaysian and 58 foreigners have been convicted, and 408 Malaysians and 22 foreigners are remand detainees (tahanan reman).
Is Maria Chin one of these ‘remand detainees’? By convicted, one assumes that they have been tried in court and convicted. Does ‘remand detainees’ mean that they, like Maria Chin, were released and never charged, or does it also include those who have been charged in court and denied bail? The government really ought to provide clearer answers.
MP Maria Chin’s question about the age breakdown of the victims of SOSMA and POCA were never even answered.
With regards to POCA, the answer was that until July 2018, there are 535 being detained under POCA - 448 Malaysians 87 foreigners. Again, there was no age breakdown, and no indication of the number of adults and the number of juveniles, which was also asked by Maria Chin.
Malaysians were lucky that MP Maria Chin shared the question and answer she received, but sadly we will never know the questions and government answers from so many of our other MPs/Senators.
The Hansard is a verbatim record of what happens in the Dewan Rakyat, but as there is no time to answer all the listed oral questions, many answers are provided later in written form. There are also the questions of MPs at every parliamentary session seeking written responses.
Transparency really demands that all these questions and government’s answers now are available at the Parliamentary website, which can be accessed by everyone.
Confusion about commitment to repeal SOSMA, POCA and Bad Laws
Several days ago, it was also reported in the media that Datuk Mohd Azis Jamman, the still Deputy Home Minister, who said ‘"…In my opinion, the law is good…’. He was referring to the SOSMA, POCA and POTA, which he said "However, the law has been abused in the past for political reasons, thus the ministry has set up a special committee to review it along with other laws, such as Prevention of Terrorism Act (Pota) and Prevention of Crime Act (Poca)…’(Star, 7/8/2018)
Taken together, what was stated by the Deputy Home Minister and the Home Minister’s Reply to Maria Chin, Malaysians may really have something to worry about – Will this new government simply keep and continue to use these draconian laws like SOSMA, POCA and other Detention without Trial Laws just like the past UMNO-BN government?
Government Of Many Past Victims Of Unjust Laws Must Do The Right Thing
This Pakatan Harapan led government is a government of many past victims of DWT laws and unjust laws. As such, many Malaysians expected speedy abolition of POCA and Detention Without Trial laws, SOSMA, Sedition Act and other unjust laws, or at the very least a pronouncement that such laws will no longer be used.
Over 100 days have passed, and we have not yet seen the many hundreds, possibly thousands, of persons currently being detained without trial under the Detention Without Trial laws like Prevention of Crimes Act, Prevention of Terrorism Act and the Dangerous Drugs (Special Preventive Measures) Act being released unconditionally. We have also not seen the possibly thousands currently being under Restriction Orders, being liberated of their restrictions.
MADPET calls on the Malaysian government to immediate clarify and reaffirm their commitment to speedily repeal POCA and all Detention Without Trial laws, and SOSMA.
MADPET also calls on the government to immediately stop the usage of these and other draconian laws pending its repeal.
MADPET also calls on the Malaysian government to immediately release all those currently being detained and/or restricted under Detention Without Trial Laws, and also SOSMA.