Madpet urges that all these ‘suspects’ arrested be accorded all rights normally accorded to those arrested, detained and subjected to criminal justice system.
Malaysians Against Death Penalty and T (Madpet) is concerned about what is happening to the many suspects who have been arrested/detained for alleged involvement in ‘terrorist’ and/or criminal activities, including the 15 who have just been arrested in connection with the explosion at the front porch of Movida, a nightspot in IOI Boulevard in Puchong, on 28 June 2016, which resulted in eight people being injured (The Star, 4 July 2016).
In March 2016, it was also reported that “more than 160 people suspected of having ties to Isis have been detained in Malaysia in the past two years” (The Guardian, 25 March 2016).
As such, Malaysia must disclose how many are presently being detained without trial, how many are being subjected to without-trial ‘restriction orders’ or similar orders, how many such persons have been charged in court, and how many have been released.
Madpet notes that Malaysia disappointingly amended and/or enacted new laws in 2014 and 2015 that allows for detention without trial, whereby a person without being accorded the right to a fair trial, can be subjected to administrative detention orders “for a period not exceeding two years, which can thereafter be renewed for a further period not exceeding two years at a time”, for any number of times.
The amendments to the Prevention of Crime Act 1959 (Poca), which came into force on 2 April 2014, and the enactment of the Prevention of Terrorism Act 2015 (Pota), which came into force on 1 September 2015, both allow for detention without trial.
Judicial review is a necessary check and balance in government. This allows the judiciary to review the lawfulness, fairness and reasonableness of a decision or action of the legislative and/or executive branches of government.
What is worse is that people detained under such detention without trial orders do not even have the right to challenge the alleged reasons/justifications of the authorities who made the detention and/or restriction order in a court law through a judicial review.
Besides detention orders, there are also provisions for ’without trial’ restriction and/or police supervision orders. These restriction orders could be “for a period not exceeding five years, which can thereafter be renewed for a further period not exceeding five years at a time”. These orders violate one’s human rights and freedoms – movement, communication, association, access to information/internet, etc.
These detention and/or restriction orders are made, without even having first the need to prove that a person is guilty beyond reasonable doubt in a fair trial. Like the detention orders, one cannot seek a judicial review to challenge the reasons or grounds for these restriction orders.
Article 10 of the Universal Declaration of Human Rights (UDHR) 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.’
Article 11(1) goes on to state that “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”.
Hence the detaining of persons or the imposition of restrictions to one’s freedoms and/or libertie s without according the person his/her right to a fair trial is a gross violation of one’s basic human rights and may also further be considered to be wrongful ‘arbitrary detention’ (Article 9, UDHR).
It could possibly be even a violation of Article 12, which states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation”.
A fair trial is the best way of separating the guilty from the innocent and protecting against injustice. It also prevents governments from abusing their power. The failure to charge and prosecute in open court also raises the concern that there really is no sufficient evidence, if any, to prove the person guilty.
It also encourages a lackadaisical attitude amongst the police and law enforcement authorities, as there is really now no obligation to carry out a comprehensive investigation or to find sufficient admissible evidence to prove the guilt or innocence of a suspect, when they can always easily resort to these ‘without trial’ options.
Given the fact that the reasons for these detention and/or restriction orders cannot be reviewed in court, it makes it extremely dangerous that there may be miscarriage of justice and innocent persons may be subjected to wrongful detention, wrongful deprivation or their freedoms and liberties, and wrongful tarnishment of their honour and/or reputation.
Speedy investigation and action by the police and/or government is always commendable, but if there is going to be a denial of human rights including the right to a fair trial, there is always the risk that the guilty may still be out there whilst the innocent suffer the consequence of a miscarriage of justice.
Madpet urges that all these ‘suspects’ arrested be accorded all rights normally accorded to those arrested, detained and subjected to criminal justice system in Malaysia which includes the right to consult and be defended by a legal practitioner of their choice, and the right to a fair trial;
Madpet calls for the immediate and unconditional release of all those currently being detained under detention without trial laws; and
Madpet also calls for the immediate repeal of all such detention without trial laws including Pota.
for and on behalf of
Malaysians Against Death Penalty and Torture)