by Charles Hector, for and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
In mid-2021, about 41.7 per cent of persons in Malaysian prisons are yet to be tried, convicted and sentenced, according to World Prison Brief, which obtained information from Malaysian government sources.
They are called ‘Pre-trial detainees/remand prisoners’, and this means they are innocent.
As stated in Article 11(1) 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 prisons on 3 February that the inmates in Malaysian prisons are packed to overflowing. The department said the number of inmates in prisons nationwide exceeds its current maximum capacity of 4,200 by 36 per cent. 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,”(Malay Mail, 3/2/2023)
In October 2022, Prison Department director-general Nordin Muhamad revealed that there were a total of 82,539 prison inmates and of that number, 76,336 were in prison, while 6,203 had been placed in the community rehabilitation programmes. (11/10/2022, FMT)
Prison overcrowding will be resolved if the majority of these per-trial/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 SOSMA listed offences must also end, and let judges decided on bail. Lesser offences not resulting in death or grievous bodily harm should be entitled to bail.
About 30,000 innocent persons in Malaysian Prisons
If there are 75,000 in prison, that will mean that about 40 per cent (or 30,000) are inmates that have yet to be tried, convicted and sentenced.
Poverty is one of key reasons, why they are yet to be tried and found guilty and are kept in prison. They simply cannot afford to post bail, as they have no acquaintance or family member that is rich enough and willing to place the bail sum that 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, and many a poor simply cannot afford to post bail, if it means that they will not be able to have access to them even in times of need.
The rich, like the Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi is out on a RM2 million bail whilst his criminal trial proceeds, but many a poor person simply cannot even raise the bail amount, let alone fine sureties willing to post bail sums of thousands of Ringgit.
In Thailand, with the passing of the Justice Fund Act, B.E. 2558 (2015), there is now legal assistance provided by the government made available to low-income people so that they can have proper legal defence in court and could be released immediately on bail whilst awaiting their trial to end.
Between 1 October 2021 and 31 March 2022, this fund approved THB190 million 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 …’(Nation, 15/4/2022)
MADPET (Malaysians Against Death Penalty and Torture) calls on Malaysia to consider and set up a similar fund that will give the poor access to monies 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 or not.
Expedite Trials of the about 30,000 pre-trial/remand detainees
Remember that these are persons that did not plead guilty and demanded trial. If they are to be remanded until end of trial, these trials must be expedited and targeted to end within 3 months or sooner – noting that after trial, they may be found not guilty. As it is now, Malaysia still does not have a Criminal Compensation Act, that will compensate the innocent victims for the detention and suffering endured until the court finds them not guilty.
Gross injustice when the innocent ends up being convicted/sentenced
It must be acknowledged that many innocent persons, especially the poor, do plead guilty so that 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 will still end up as pre-trial/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 than the sentence imposed if they plead guilty fast. There is a loss of faith in the criminal administration of justice.
As trials are delayed, many innocent pre-trial/remand detainees in prison may still end up pleading guilty, because of delays in the 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 of judges and courts, so that we can speedily reduce the pre-trial/remand detainees in prison to at least less than 5 per centum of the total prison inmate population.
Programs to reduce the prison population in Malaysia to date seems to impact only the convicted serving their sentence, not the pre-trial/remand detainees in prison.
The initiatives implemented since 2008, such as the parole system, compulsory attendance order, resident reintegration programme, licenced prisoner release, community rehabilitation programmes and several other programmes could reduce overcrowding in prisons across the country, are really for the prisoners, already convicted serving their sentence.
Provide lawyers to all pre-trial/remand 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 Yayasan Bantuan Guaman Kebangsaan(National Legal Aid Foundation, “YBGK”) 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 still rely on the Malaysian Bar 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/remand detainees in prison today are foreigners, MADPET calls on the Malaysian government to provide legal aid lawyers for all, as this is also to help expedite and ensure a fair trial.
The major problem with the overcrowding in prisons is the large percentage of pre-trial/remand detainees, and on an urgent basis, Malaysia must expedite trials, and take steps to reduce the number of pre-trial/remand detainees.
Maybe, courts should review the bail amounts and conditions of all pre-trial/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. Even former Malaysian Prime Minister Najib Razak was allowed out on bail after his conviction until the end of the final Federal Court appeal.
