On 27 October, the Malaysian Day for the Abolition of Detention Without Trial Laws, we recall the infamous abuse of laws that allow detention without trial in Malaysia.
On 27 October 1987, about 106 people from all walks of life, including human rights defenders, politicians (like Mohamad Sabu, Khalid Samad, Lim Guan Eng, Lim Kit Siang and the late Karpal Singh), academics, workers’ rights activists, women human rights defenders and others were arrested and detained under the Internal Security Act 1960.
ISA abolished but…
The of these laws that allow for detention without trial – the ISA and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 – have since been abolished in around 2012, thanks to public protests and a campaign.
However, one law that allows for detention without trial remains to this day -the Dangerous Drugs Act (Special Preventive Measures) 1985.
But after the abolition of the two draconian Laws that allow for detention without trial, Malaysia enacted a new law that allows for detention without trial law, the Prevention of Terrorism Act 2015 (Pota), while the Prevention of Crime Act 1959 (Poca) was amended to become a law that allows for detention without trial.
The scope of laws that allow for detention without trial now in Malaysia is now so much broader, and allows the administration to arrest and then detain indefinitely or impose restrictions indefinitely on anyone, without according them the fundamental right to a fair trial. Hence, the victims are innocent persons who have not been convicted. As such, it is in violation of the legal principle of presumption of innocence until proven guilty.
One must not be swayed by the names of any given law that allows for detention without trial, as they can all be used against anyone, irrespective of whether they are involved in terrorism, serious crime or drug offences.
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After all, there is no way to verify what the police or government alleges, as victims are not accorded a trial, and they cannot even apply for a judicial review to confirm the validity of the ‘reasons’ given by the authorities to take action under any specific law that allow for detention without trial.
Right to fair trial denied
Article 11(1) of the Universal Declaration of Human Rights states:
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.
In Malaysia, the police or other law enforcement can arrest people as suspects who may have committed a crime and can only detain them for no longer than 24 hours for the purpose of an investigation only.
Article 5(4) of the Federal Constitution states:
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…
The reason for this is that it is foolish to blindly trust the police or the government; hence the need for a remand application and order by the magistrate for any further detention beyond 24 hours.
The suspect has a right to be heard at remand hearings, and the magistrate determines whether there really is a need for any further detention for the purpose of investigation, not any other purpose.
The magistrate determines whether the law is being complied with by the police, that there is no torture or any other wrongdoing by the police.
If satisfied of the need for further remand, then and only then will the magistrate give a remand order, and today:
(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or
(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application…” (Section 117(2) of the Criminal Procedure Code)
Magistrates’ role usurped
However, under laws that allow for detention without trial like Poca for example, when [a suspect is] brought before the magistrate, there is no real remand hearing, and the right of the suspect to be heard is denied.
Section 4(1)(a) of Poca states that [the magistrate should] “on production of a statement in writing signed by a police officer not below the rank of Inspector stating that there are grounds for believing that the name of that person should be entered on the Register, remand the person in police custody for a period of twenty-one days”.
After 21 days, to extend remand for another 38 days, all that is required is the production of [under Section 4(2)]:
(i) a statement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to justify the holding of an inquiry” and
(ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is intended to hold an inquiry…
Judicial authority and the discretion of the magistrate in remand application hearings are removed. So there can be no consideration as to whether the police have abused their powers or broken laws and whether further detention is really needed at all.
The magistrate has no choice on production of police statements of belief but to order remand for 21 days. Even in the face of obvious evidence of torture or abuse, the magistrate can do nothing about it.
Judicial review denied
In criminal matters, after the remand, the suspect will be charged in court and accorded a fair trial before an independent judge. But under laws that allow for detention without trial, there is no charge and no trial.
After a criminal trial, if dissatisfied, you may appeal to higher courts, and in Malaysia, there is a right to two appeals – but under laws that allow for detention without trial, there is no trial and no right to two appeals.
With laws that allow for detention without trial, the decision is made by a board or minister not courts and judges.
In fact, laws that allow for detention without trial do specifically deny you the right to challenge the reasons the government uses to detain or restrict you. You can only challenge the procedure – whether the steps taken as required by law that lead to the board’s decision were complied with.
Section 15B(1) states:
(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.
This is absurd as, in Malaysia, generally all ministers’ and even the prime minister’s decisions are subject to judicial review. So there is no [reason] why the decisions of the board or minister under laws that allow for detention without trial are excluded [from review]?
Habeas corpus denied
Article 5(2) of the Federal Constitution states:
Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.
This is commonly known as the habeas corpus application, but the laws that allow for detention without trial do not allow any such application, which is in clear violation of the Article 5(2) constitutional guarantee.
Inconsistent with just principles
In short, detention without trial conflicts with the standards, norms and principles of the administration of criminal justice in Malaysia.
Thus, anyone, even the innocent, can be arrested, detained and even restricted for as long as the government decides without any fair trial, right of appeal or any recourse to court to challenge the reasons for his or her loss of liberty.
Easy for police…
Laws that allow for detention without trial do not require the police or the prosecutor to even obtain evidence or sufficient evidence to prove to the board, minister or court that a person has committed a crime beyond reasonable doubt.
Are our police or prosecution not competent enough to go to court and prove that [the suspect] is guilty of a crime?
‘Punishment’ for ‘non-criminal’ acts
In fact, there seem to be no need to even state the specific offence, under laws that allow for detention without trial, that one is being ‘punished’ for.
Hence, is it not in violation of the principle that no one can be arrested, detained or ‘punished’ for something that is not even a legally recognised criminal offence in Malaysia?
This violates Article 7(1) of the Federal Constitution, which states:
No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
An offence must be clear and precise and stipulate the sentence if convicted. It cannot be vague and general.
No definite period of ‘punishment
In the administration of criminal justice, upon conviction, one is sentenced to a definite period of imprisonment or other punishment.
But with laws that allow for detention without trial, there is nothing definite about the period of detention or restrictions, for they are indefinite.
In terms of detention, “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.”
Another example is police supervision orders, where again it can be “any period not exceeding five years if the Board is satisfied that it is necessary and may renew any such order for a further period not exceeding five years at a time”.
Hence, for detention without trial, the loss of liberty, due to detention and other restrictions, is not definite … and goes on so long as deemed necessary. This is a serious injustice, more so for those denied a fair trial and who have never been found guilty by court. A person is a victim – not a convicted criminal when laws that allow for detention without trial are used.
Laws that allow for detention without trial are a tool of oppression of unjust governments that allow them to arrest, detain and restrict anyone, without the right to a fair trial, and without the ability to go for a judicial review.
The question now is whether this current Pakatan Harapan-led government of Prime Minister Anwar Ibrahim is a government that is committed to justice and the rule of law [and whether it] will speedily repeal laws that allow for detention without trial.
It is true that prominent politicians, human rights defenders and individuals have not become victims of these laws that allow for detention without trial for some time.
But the fact is that many in Malaysia continue to be victims of this draconian law. In March 2023 the minister revealed that 132 were detained under Poca, but no disclosure was made of the numbers detained under Pota or the Dangerous Drugs (Special Preventive Measures) Act. Neither was there disclosure of how many were confined like the people of Gaza to a town or district, or those under other restrictions or conditions under laws that allow for detention without trial.
So, is the government committed to justice for all? Or will it simply be a hypocrite and retain these draconian laws? It is sad that some MPs and politicians today absurdly believe that laws that allow for detention without trial and other draconian laws are still needed for the police to curb crime.
Malaysians Against Death Penalty and Torture (Madpet) reiterates the call for the abolition of all laws that allow for detention without trial, including Pota, Poca and the the Dangerous Drugs (Special Preventive Measures) Act.
Madpet calls for the immediate and unconditional release of all victims of laws that allow for detention without trial who are currently detained, restricted and under police supervision. If they have really committed any criminal offence, then charge them in court and accord them a fair trial.
Madpet also calls for the repeal of the draconian Security Offences (Special Measures) Act 2012 (Sosma), which is not a law that allows for detention without trial, as those arrested for Sosma-listed offences will be charged and tried in court.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)