Abolish Poca, other detention without trial laws

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We, the 36 undersigned civil society organisations, trade unions and groups,are perturbed to hear that 142 juveniles have been arrested under the Prevention of Crime Act, a law that allows the detention of people without trial.

This was revealed by the Deputy Prime Minister of Malaysia, Ahmad Zahid Hamidi, in a parliamentary written reply dated 31 October 2017 (Malaysian Insight, 7 November 2017).

We are shocked about the continued existence of detention without trial laws in Malaysia, including the Prevention of Crimes Act 1959 (Poca), the Prevention of Terrorism Act 2015 (Pota) and the Dangerous Drugs (Special Preventive Measures) Act 1985, that allow for individuals to be arrested, detained and/or restricted without even being accorded the right to challenge the reasons of their incarceration and/or restriction in court. The fundamental right to a fair trial is denied.

If 142 juveniles were victims of this detention without trial  law, then one wonders whether thousands of individuals are currently being detained/restricted under Poca and other detention without trial laws.

The fundamental problem with these detention without trial laws in Malaysia is that the victim cannot even challenge even the reasons for his arrest, detention and/or restriction in a court of law. Without the ability to go for a judicial review challenging the reasons used for detention/restriction, the judiciary is effectively barred from ensuring that the executive is not abusing its power and/or that no innocent person is being unjustly denied his or her constitutionally guaranteed rights and liberties.

Detention without trial allows for an individual to be detained and/or restricted indefinitely according to the whims and fancies of the government, be it a minister or some appointed board.

A person who has been arrested, detained and/or restricted under these draconian detention without trial laws is also denied the fundamental right to a fair trial. The state could also deny the rights or liberties of the innocent. The principle that everyone should be presumed innocent until proven guilty in a court of law must be respected.

When Malaysia finally got rid of the infamous Internal Security Act 1960 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, there was hope that all other laws that allow for detention without trial would also soon be repealed.

However, the opposite happened and the ability of the state to continue using detention without trial laws was enhanced by the amendments of the Prevention of Crimes Act 1959 (Poca) and the introduction of the new Prevention of Terrorism Act 2012.

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An amendment to Poca, which came into effect on 2 April 2014, introduced a new Part IVA, that introduced detention without trial. The board could now issue a “detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime”.

Previously, when Poca was used, within 24 hours after arrest when the victim is brought before the magistrate for a remand application, a statement in writing, signed by a police officer not below the rank of assistant superintendent, stating that there are grounds for believing that the name of that person should be entered on the register was required before a magistrate could grant a 14-day remand.

But after April 2014, all that is required is a statement of a police officer of merely the rank of inspector. Hence, rather than having greater safeguards against possible abuse, it was made easier by requiring just a lower-ranked inspector’s statement. The remand period was also extended to 21 days.

Poca, which was originally enacted to be used for organised crime members, triads or gangs involv,ed in crimes involving “violence or extortion” was amended to cover all offences in the Penal Code. Originally it was to be used for gangs of five or more individuals, but that was amended to two or more individuals. That means that Poca can now be used for even a person who committed a crime with another, even if the crime was theft or some other lesser crime. The right to a fair trial now could easily be denied to many more people.

The Poca amendment, which came into force in May 2014, allowed for the act to be used also for an even wider range of people including drug traffickers (including those living on the proceeds of drug trafficking), human traffickers (including those living on the proceeds of human trafficking), those involved in unlawful gaming, smugglers of migrants (including those living on the proceeds of migrant smuggling), and recruiters of members of gangs or individuals to participate in some crime.

A subsequent amendment in 2015 added “Persons who engage in the commission or support of terrorist acts under the Penal Code”.

READ MORE:  Abolish detention without trial, respect right to fair trial

An interesting amendment to Poca that came into effect on 1 September 2015 was section 4(2A) which stated that “no person shall be arrested and detained under this section solely for his political belief or political activity”.

The new section 4(5) goes on to explain “political belief or political activity” as meaning “engaging in a lawful activity through –

(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by-

(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;

(b) the expression of an opinion directed towards any government in Malaysia; or
(c) the pursuit of a course of action directed towards any government in Malaysia”.

This may give the impression that Poca will not be used against politicians (and possibly even civil society personalities) for actions directed against the government.

It however does not protect civil society or human rights defenders if their actions and/or expression of opinion is directed against some  perpetrator of injustice, not being “any government”, or if they are alleged of committing some other crime. We recall that Poca was used in July 2016 in the case of R Sri Sanjeevan, Malaysian Crime Watch Task Force (MyWatch) chairman – a civil society organisation.

This amendment, however, may have the effect of reducing the interest or concern of political parties about Poca and such detention without trial laws.

The victims of such detention without trial laws may now be mostly common people, who are being detained and/or restricted for years without even being accorded a fair trial.

The number of victims of such detention without trial laws are also unknown, as most such information in Malaysia is usually known when the government makes a reply to a parliamentary question. The recent information about the number of juvenile victims of Poca was because of such a question raised by an Opposition parliamentarian.

Now, whenever a person is suspected of a crime involving two or more individuals, Poca can simply be used as it is so much easier and requires no comprehensive investigation or gathering of evidence that would have been required if one was to be charged and tried in court.

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In a fair trial, the prosecution needs to prove that a person is guilty beyond reasonable doubt. The guilt or innocence of a person must be determined by an independent judge in court, and the belief of the police, prosecution or government that a person is guilty is inadequate. A trial also gives the right to the accused persons to defend themselves, and the courts will decide after considering all evidence and facts of the case.

Therefore, we call for:

  • the immediate repeal of all detention without trial laws, including the Prevention of Crimes Act 1959 (Poca), the Prevention of Terrorism Act 2015 (Pota) and the Dangerous Drugs (Special Preventive Measures) Act 1985;
  • the immediate and unconditional release of all those currently being detained and/or restricted under these detention withouttTrial laws;
  • the immediate disclosure of the numbers of people being detained under these detention without trial laws, and the reasons being used to justify their detention/restriction;
  • compensation and/or damages to be paid to all victims of detention without trial laws for the loss of their rights and liberties;

Charles Hector

for and on behalf the 36 groups, organisations and unions listed below:

  1. Aliran
  2. Association of Human Rights Defenders and Promoters – HRDP, Myanmar
  3. Asia Pacific Solidarity Coalition (Apsoc)
  4. Atrahdom Guatemala
  5. Awam
  6. Australians Against Capital Punishment (AACP)
  7. Bersih 2.0
  8. Centre for Prisoners’ Rights, Japan
  9. Christian Development Alternative (CDA), Bangladesh
  10. Civil Rights Committee of KLSCAH
  11. Democratic Commission for Human Development, Pakistan
  12. Indonesian Legal Roundtable
  13. Institute for Development of Alternative Living (Ideal)
  14. Japan Innocence and Death Penalty Information Centre
  15. Legal Awareness Watch (Law), Pakistan
  16. Malaysians Against Death Penalty and Torture (Madpet)
  17. Malaysian Physicians for Social Responsibility
  18. Malaysia Youth & Student Democratic Movement (Dema)
  19. National Union of Transport Equipment and Allied Industries Workers (NUTEAIW)
  20. North South Initiative
  21. National Union of Flight Attendants Malaysia (Nufam)
  22. Odhikar, Bangladesh
  23. Parti Rakyat Malaysia (PRM)
  24. Persatuan Komuniti Prihatin Selangor and KL
  25. Philippine Alliance of Human Rights Advocates
  26. Society for the Promotion of Human Rights, Malaysia (Proham)
  27. Sahabat Rakyat 人民之友
  28. Sawit Watch, Indonesian Social NGO
  29. Saya Anak Bangsa Malaysia (SABM)
  30. Sosialis Alternatif (Committee for Workers International-Malaysia)
  31. Suara Rakyat Malaysia (Suaram)
  32. Teoh Beng Hock Trust for Democracy
  33. Think Centre, Singapore
  34. Workers Assistance Center, Inc., Philippines
  35. Workers Hub For Change (WH4C)
  36. Yaung Chi Oo Workers Association (YCOWA)

Additional endorsements:

  • Asia Centre
  • Human Rights and Democracy Media Centre “SHAMS”
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