Abolish Poca and all detention without trial laws

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We, the 36 undersigned civil society organisations, trade unions and groups, are appalled to hear about the case of Siti Noor Aishah Atam, a 29-year-old Malaysian woman, who was arrested for the alleged possession of 12 books, detained, tried and acquitted by court, and thereafter re-arrested and detained under the Prevention Of Crime Act 1959 (Poca).

We are shocked that Siti Noor Aishah, despite being acquitted and released by the court, which also denied the prosecution’s application to continue to detain her under the Security Offences (Special Measures) Act 2012 (Sosma) pending appeal, was re-arrested and detained, and has now been imposed with restriction orders, which included being fitted with an electronic monitoring device.

The case is one of the very few cases of victims of Poca which had gone to trial – for most victims of Poca and other detention without trial laws never get the opportunity to get a trial.

There are now more than a thousand victims of Poca, Pota and other detention without trial laws, who have been or are now still detained without trial and/or subjected to restriction orders, without any opportunity to even challenge the alleged reasons for their detention or restrictions.

A gross injustice is being done to them, as many like Siti Noor Aishah Atam would more than likely be innocent. These victims have certainly never been proven guilty. As at 30 September 2015, 975 people have been detained under Poca (Malaysiakini, 29 November 2016).

Without the right to judicial review, including habeas corpus application, the risk and possibility that the innocent are all being now denied their liberty and rights is totally unacceptable. It is a denial of their fundamental human rights, including the right to “a fair and public hearing by an independent and impartial tribunal” (Article 10, Universal Declaration of Human Rights).

Article 11(1) of the declaration states 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”.

Case of Siti Noor Aishah Binti Atam

Siti Noor Aishah, who was arrested on 22 March 2016, has been a victim of Sosma and now continues to be a victim of Pota.

On 22 March 2016, Siti Noor Aishah, a University of Malaya Masters of Usuluddin (Islamic Studies) student, was arrested for allegedly having in her possession books on Jemaah Islamiyah, Islamic State and Al Qaeda at her residence at Lot 1241, Jalan Lapangan Terbang Sura, Dungun, Terengganu at 12.25pm – an offence under the Penal Code.

On 19 April 2016, she was charged in the Magistrate’s Court in Kemaman, Trengganu under Section 130JB (1)(a) of the Penal Code which states that:

READ MORE:  Repeal Sosma - recognise right to a fair trial, rule of law

whoever- (a) has possession, custody or control of; or (b) provides, displays, distributes or sells, any item associated with any terrorist group or the commission of a terrorist act shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item.

The case was then transferred to the High Court in Kuala Lumpur.

On 25 July 2016, she pleaded not guilty and claimed trial at the High Court.

On 29 September 2016, Judicial Commissioner Mohamad Shariff Abu Samah, at the close of the prosecution’s case, acquitted and released her, without requiring Siti Noor Aishah to enter her defence as the court found that the prosecution had failed to prove a prima facie case against the accussed [“… pihak pendakwaan telah gagal untuk membuktikan suatu kes Prima facie terhadap OKT…” (extract from the court judgment)].

The judge, amongst other things, said in his judgment:

Apalah ertinya pemilikan buku-buku tersebut yang dikatakan mempunyai kaitan dan unsur-unsur pengganas menjadi suatu kesalahan keatas sesiapa yang memiliki buku-buku tersebut, walhal pihak Kementerian Dalam Negeri gagal menjalankan fungsi sebenarnya untuk mengharamkan dan seterusnya menghapuskan buku-buku… (What is the meaning when possession of the said books said to have links and elements of terrorism is an offence against those found in possession of such books, when the Ministry of Home Affairs fails to even ban and thereafter destroy such books).

It was also reported that the court, after acquitting Siti Noor Aishah, also rejected the deputy public prosecutor’s application to continue to detain Siti Nor Aishah in prison pursuant to section 30(1) of the Security Offences (Special Measures) Act 2012 (Sosma) whilst waiting for the appeal to be filed by the prosecution against the decision to acquit (Bernama/Sinar Harian, 29 September 2016).

It was recently reported in the media (Malaysiakini, 29 November 2016), that Siti Nor Aishah was thereafter arrested and detained under Poca until Saturday, 26 November 2016), and has now been fitted with an electronic monitoring device, and asked to report every Friday at the police station in Bukit Aman for eight weeks.

She is also most likely subjected to restriction orders (or police supervision orders) under Pota – which could include inhibitions with regard to movement, restrictions as to the people she can communicate with, and even restrictions with regard access to the internet and social media.

Sosma

This law provides for the uses of ‘special measures’ in security offences cases.

After arrest, for the purpose of investigation, the police can normally hold a suspect for 24 hours, and if more time is required, the police need apply to a magistrate for further remand in a hearing where the suspect can also be represented by a lawyer. The magistrate will consider the reasons advanced and the submissions and thereafter, if justified, may allow further remand for a specific number of days. If further remand is needed after that, the police will have to apply again to the magistrate, and the maximum number of days of remand permitted is 14 days.

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But when the police resort to Sosma, there is no more the need to apply to the magistrate for further remand beyond 24 hours, and as such there is no more judicial intervention, which acts as a necessary check and balance to prevent abuse of detention powers by the police. Sosma only requires the authority of a police officer of the rank of superintendent or above to be able to detain a suspect for up to 28 days.

In Siti’s case, this provision of Sosma was most likely used, as she was only brought to court to be charged on 19 April 2016, which is certainly more than the usual 14 days. Sosma was also used recently in the case of human rights defender Maria Chin.

In the trial, it was also disclosed by the prosecutor in the judgment that SOSMA was also used for the purposes of investigation, and it was also used during the trial. Sosma allows the use of evidence which in normal trials would not be admissible by reason of requirements in the Evidence Act and the Criminal Procedure Code.

Poca

Poca is a detentdon without trial law, like the former Internal Security Act, which allows for administrative detention and/or restrictions to be imposed on a person. The Act also denies victims of Poca the ability to challenge the reasons and/or justification for the said detention/restriction/police supervision orders in a court of law.

The ousting of the court’s ability to review the reasons of the government for arresting, detaining and/or imposing restrictions only encourages abuse and injustice against the innocent.

The use of Poca to detain and now impose restrictions on Siti Nor Aishah’s rights and freedoms, especially after the High Court had heard her case and acquitted her is wrong.

Additionally, given the fact that the court denied the application by the prosecution to continue to detain her until the appeal against her acquittal, we are of the opinion that the subsequent use of Poca to arrest and detain her may amount to contempt of court and certainly a gross disrespect of the court.

READ MORE:  Repeal Sosma; ensure justice for all Sosma victims

The Poca amendments in 2014 and 2015 extended its use from just persons involved in triad gangs to now also include persons allegedly involved in drug trafficking, people trafficking, smuggling of migrants and even terrorism offences. It also covers crimes committed by three or more people.

It must also be highlighted that Poca clearly states that detention under Poca “shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention”. That means that a person detained on the basis of some allegation can at a later date also find himself again being charged in court for a crime based on the same allegations.

Poca, Pota and other laws that allows for detention/restrictions without trial clearly violate human rights, and they must be abolished.

Therefore, we:

  • call for the immediate and unconditional release of Siti Noor Aishah Atam from any detention or restriction (police supervision) orders under Poca or any such detention without trial laws;
  • call for the immediate and unconditional release of all persons currently being detained/restricted under Poca or any such detention without trial laws;
  • call for the repeal of Poca, Pota and any such detention without trial laws;
  • call for the repeal of Sosma.

Charles Hector
For and on behalf of the 36 undersigned civil society organisations, trade unions and groups

Aliran
Ajar Timor-Leste
Association of Domestic Home and Maquila Workers. Atrahdom-Guatemala
Association of Human Rights Defenders and Promoters – HRDP, Myanmar
Banglar Manabadhikar Suraksha Mancha (Masum), India
Bersih
Centre for Prisoners’ Rights, Japan
Centre for Alliance of Labor and Human Rights (Centra), Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign(CCC)
Community Development Centre (CDC)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
Institute for Development of Alternative Living (Ideal)
Japan Innocence and Death Penalty Information Centre
Jaringan Rakyat Tertindas (Jerit)
Jaringan Kampung Orang Asli Semenanjung (JKOASM)
Kesatuan Kebangsaan Anak Kapal Kabin Malaysia/National Union of Flight Attendants Malaysia (Nufam)
Malaysians Against Death Penalty and Torture (Madpet)
Malaysian Physicians for Social Responsibility
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW), Malaysia
North South Initiative
Odhikar, Bangladesh
Oriental Hearts and Mind Study Institute (OHMSI), Malaysia
Pemuda Persatuan Hokkien Selangor & KL
Persatuan Komuniti Prihatin Selangor & KL (Prihatin)
Persatuan Sahabat Wanita Selangor
Philipping Alliance of Human Rights Advocates (Pahra)
Programme Against Custodial Torture & Impunity, India
Proham (Society for the Promotion of Human Rights, Malaysia)
Pusat Komas
Saya Anak Bangsa Malaysia (SABM)
Suara Rakyat Malaysia (Suaram)
Tenaganita
Workers Hub For Change (WH4C)
Women’s Centre for Change, Penang (WCC)
Yayasan Lintas Nusa Batam, Indonesia

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