Malaysians Against Death Penalty and Torture (Madpet) is most concerned when Malaysia’s new government, through the home affairs minister, in his reply to a parliamentary question dated 15 August 2018, tells us that this government plans to continue to use draconian laws like the Security Offences (Special Measures) Act 2012 (Sosma) and the Prevention of Crime Act 1959 (Poca).
“Kerajaan akan terus menguatkuasakan undang-undang untuk memelihara keselamatan negara…” (Goverment will continue to enforce laws to preserve national security…) were the words used in the response contained in the reply by the Ministry of Home Affairs to a parliamentary question about Poca and Sosma by Member of Parliament Maria Chin Abdullah on 15 August.
The government reply also stated that a review was being done to see if the use of such laws are in compliance (or consistent) with human rights norms [“…untuk melihat sama ada pengunaan akta-akta ini selari dengan norma-norma hak asasi manusia…”].
It is most disappointing when the Malaysian government takes such a stance, and really, there is no justification to procrastinate or delay the repealing of these and other anti-human rights laws.
The correct position is to now to impose an immediate moratorium pending repeal of all such laws – no one else in Malaysia should be made victims of Sosma, Poca, detention without trial laws, the Sedition Act and other such bad laws.
Is the use of these laws in line with human rights norms?
It is a bad joke or a foolish proposition for this new government to even suggest a review to find out whether Poca and other laws that allow detention without trial are consistent with human rights norms. It has been the stance taken by the Human Rights Commission of Malaysia, the Malaysian Bar, civil society and human rights groups and even the then opposition parties and their leaders for many years.
Poca and detention without trial laws violate human rights
Detention without trial laws clearly violate human rights.
Article 10 of the Universal Declaration of Human Rights clearly states: “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.”
Detention without trial laws deny the right to a fair trial and allow the government to detain and/or restrict persons indefinitely without trial.
Article 11(1) states: “(1) 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.”
Article 9 states: “No one shall be subjected to arbitrary arrest, detention or exile.”
Poca and detention without trial laws enable the police (or the government of the day) to subject persons to “arbitrary arrest, detention or exile”. There is no need for any trial or even any court order.
Worse, detention without trial laws can be used against a person for any alleged reason, which may also be ‘fake’ or false, and the victim cannot even challenge the alleged reasons used to justify the arrest, detention or restrictions through a judicial review.
The judiciary’s power to ensure that there is no wrongdoing on the part of the executive is curtailed – the courts cannot make sure whether an innocent person has been wrongly detained or restricted for a wrong or false reason.
Poca was amended, amongst others, in 2014, and now it is so wide that it can be used against almost anyone, which really may not matter because the law itself prevents a challenge against the reason for which it was used.
Today, after these amendments, even former Prime Minister Najib Razak could be arrested and detained under Poca, which now can also be used even in cases where allegedly “two or more persons who associate for purposes which include the commission of offences under the Penal Code…” It now covers all offences under the Penal Code – no longer just crimes “involving violence or extortion”.
Sosma violates human rights and even denies a fair trial
Sosma, which may be the replacement of the Essential (Security Cases) Regulations 1975, allows the police to override the existing provisions in our Criminal Procedure Code and the Evidence Act, which are there primarily to ensure justice is done and human rights respected.
The Malaysian Federal Constitution in Article 5(4), states amongst others: “(4) 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…”
But if the police rely on Sosma, the police are no longer required to bring the person arrested before a magistrate within 24 hours. The police can simply continue to detain the ‘suspect’ for up to 28 days.
Now, the Criminal Procedure Code also sets the maximum period of remand for the purpose of investigation at 14 days. But if Sosma is used, there is no need to even bring the suspect before a magistrate or get a remand order from a magistrate, and the suspect can simply be detained for up to 28 days.
The requirement to bring the suspect before a magistrate and the requirement of a remand order by a magistrate is a necessary check and balance to prevent abuse of police powers including torture.
There have been way too many allegations of torture and even deaths in police custody. There were 110 lock-up deaths from 2010 to 2016 in Malaysia. A Malaysian Bar statement dated 23 April 2018 stated: “The Malaysian Bar is appalled that two more men have died while in police custody, within the space of merely a few weeks.”
The requirement to produce a suspect before a magistrate within 24 hours and the need for an application to the magistrate for further remand orders, gives the magistrate the opportunity to ensure no police wrongdoings, and that these further detentions are really needed for investigation purposes and not for some other wrong or illegal objectives, including maybe the torture of suspects.
If Sosma is relied on when a person is charged in court, bail will be denied, meaning the accused innocent person will have to stay in prison until his or her trial is over. Even if the court finds the accused not guilty, using Sosma, the prosecution could still ask that the accused continue to be detained until the subsequent appeals are done and disposed off.
If Sosma is used during a trial, normal evidence and criminal procedural requirements can also be ignored. What is not admissible in normal criminal trials could become admissible if Sosma is used. These evidence and procedural requirements are there to ensure a fair trial and that justice is done.
Sosma can only be used for security offences, which now includes that vague newly introduced draconian offences as a result of the previous regime criminalising all forms of “activity detrimental to parliamentary democracy” (Section 124B-J of the Penal Code) which is also under Chapter VI – Offences Against The State.
In November 2016, Maria Chin Abdullah, the then Bersih 2.0 chairperson herself, was arrested and detained under Section 124C of the Penal Code, which prohibits the attempt to commit activities detrimental to parliamentary democracy. Sosma was used here (Malay Mail, 20 November 2016).
Failure to answer the question – disclose all answers on parliamentary website
In this parliamentary reply, the government also revealed that until July 2018, 592 individuals (510 Malaysians 10 foreigners) were detained under Sosma, of which 102 Malaysians and 58 foreigners have been convicted, and 408 Malaysians and 22 foreigners are remand detainees (tahanan reman).
Was Maria Chin one of these “remand detainees”? By convicted, one assumes that they have been tried in court and convicted. Does “remand detainees” mean that they, like Maria Chin, were released and never charged, or does it also include those who have been charged in court and denied bail? The government really ought to provide clearer answers.
MP Maria Chin’s question about the age breakdown of the victims of Sosma and Poca were never even answered.
With regard to Poca, the answer was that until July 2018, there were 535 being detained under Poca – 448 Malaysians and 87 foreigners. Again, there was no age breakdown, and no indication of the number of adults and the number of juveniles, which was also asked by Maria Chin.
Malaysians were lucky that Maria shared the question and the answer she received, but sadly, we will never know the questions and government answers from so many of our other MPs and senators.
The Hansard is a verbatim record of what happens in the Dewan Rakyat, but as there is no time to answer all the listed oral questions, many answers are provided later in written form. There are also the questions of MPs at every parliamentary session seeking written responses.
Transparency demands that all these questions and government answers now are available on the parliamentary website, which can be accessed by everyone.
Confusion about commitment to repeal Sosma, Poca and bad laws
Recently, Mohd Azis Jamman, the still Deputy Home Minister, was reported as saying, “In my opinion, the law is good…” He was referring to Sosma, Poca and Pota, adding, “However, the law has been abused in the past for political reasons, thus the ministry has set up a special committee to review it along with other laws, such as Prevention of Terrorism Act (Pota) and Prevention of Crime Act (Poca)…” (The Star, 7 August 2018).
Taken together, what was stated by the deputy home minister and the home minister’s reply to Maria Chin suggests that Malaysians may have something to worry about. Will this new government simply keep and continue to use these draconian laws such as Sosma, Poca and other detention without trial laws just like the past Umno-BN government?
Government of many past victims of unjust laws must do the right thing
This PH-led government is a government of many past victims of detention without trial laws and unjust laws. As such, many Malaysians expected a speedy abolition of Poca, detention without trial laws, Sosma, the Sedition Act and other unjust laws – or at the very least a pronouncement that such laws will no longer be used.
Over 100 days have passed, and we have not yet seen the many hundreds, possibly thousands, of people currently being detained without trial under detention without trial laws such as Poca, Pota and the Dangerous Drugs (Special Preventive Measures) Act being released unconditionally. We have also not seen the possibly thousands currently being subject to Restriction Orders being liberated from their restrictions.
Madpet calls on the Malaysian government to immediate clarify and reaffirm its commitment to speedily repeal Poca, all detention without trial laws, and Sosma.
Madpet also calls on the government to immediately stop the use of these and other draconian laws pending their repeal.
Madpet also calls on the Malaysian government to immediately release all those currently being detained or restricted under detention without trial laws and Sosma.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).