Malaysians Against Death Penalty and Torture (Madpet) is appalled with the discrimination in the administration of justice, overcrowding of Malaysian prisons and lock-up conditions as recently again disclosed by Lim Guan Eng after he spent the night in a lock-up.
Lock-up and prison reforms
Lim Guan Eng was reported saying, “I had to change to the SPRM [Malaysian Anti-Corruption Commission] orange T-shirt and slept on the wooden floor in the small lock-up (no pillow, no mattress)” (Malaysiakini, 8 August 2020).
It seems that he may be alone in the lock-up during his detention, but the norm is far worse when many are detained together in a single lock-up.
The conditions these suspects, not even accused persons, face in some of these lock-ups whilst under remand may be far worse even when compared to conditions of prison cells, which houses the convicted. Prison cells, for example, have beds, but this is not the case for lock-ups.
Repeated calls for reforms and improvement of Malaysian lock-ups and prison conditions, have yet to be addressed by the government, be it the past Barisan Nasional government, the Pakatan Harapan-plus government or even the present Perikatan Nasional government.
Discrimination of victims of the administration of criminal justice must end
Lim Guan Eng highlighted the differential treatment by the authorities compared to the treatment accorded to other prominent persons like the former Prime Minister, Najib Razak.
Special treatment accorded to some politicians or personalities, however, is not the issue, but the discrimination against others in Malaysia, who during investigation are forced to spend days in remand, staying in lock-ups which are sub-standard detention places compared to international standards and best practices.
When some of the recent politicians and prominent personalities are being investigated, many are not even remanded, which means they do not have to spend days in police lock-ups, suffering not just deprivation of freedoms but also being subjected to poor living conditions in police lock-ups.
No remand is needed for the police or enforcement agencies to complete their investigations. Persons suspected of crimes can simply be asked to turn up at particular times for the purpose of investigations. If, and only if, they refuse to corporate, will there be any justification for remand – requiring them to be detained and kept in police lock-ups during investigations.
Malaysian Prisons Department deputy director general (security and correctional) Alzafry Mohamed Alnassif Mohamed Adahan was recently reported as saying that there are currently “68,000 prison inmates are currently housed in 42 prisons nationwide” and that this “‘number exceeded the prescribed capacity of 52,000…. The number consists of 54,508 locals and 14,095 foreigners. Occupancy is increasing and if you follow the trend, the number will not decrease,’ he said” (Sun Daily, 8 August 2020).
The then-minister responsible under the previous PH government, Liew Vui Keong, also talked about prison overcrowding. “Speaking on the severity of prison overcrowding here, Liew noted that one prison made prisoners sleep in shifts to mitigate….This was due to lack of beds for a 10-person cell housing 20 prisoners, forcing them to take turns with 10 to stand while the other 10 sleep, he said” (Malay Mail, 9 March 2019). At times, it was said that “Malaysia could only accommodate a maximum of 45,000 prisoners, but said the current number of prisoners has reached over 66,000”.
Besides, the issue of human rights violations, the other concern is the financial implications for Malaysians. In 2019, the then-minister said that the “daily cost for a prisoner ranges from RM38 to RM41″…. This means that the minimum daily cost involved for the 65,222 prisoners would be at least over RM2.4 million”. Likewise, Malaysians will be paying when persons are remanded in lock-ups for the purpose of investigations.
According to the World Prison Brief, which claims data obtained from the Malaysian government, many persons detained in Malaysian prisons are not persons already convicted and serving out their sentence. “In 2015, for example, there were a total of 51,602 persons in Malaysian prisons, and about 25.8% (13,000) of them were remand pre-trial prisoners.” These pre-trial detainees would include those poor that cannot afford bail and others who were denied bail, which would include those charged with one of the many offences listed under Security Offences (Special Measures) Act (Sosma).
Pre-conviction detention and delayed trials can cause the innocent to plead guilty
Pre-conviction detention or punishment is unjust, a violation of human rights. 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.”
Punishment should best come only after one is convicted and sentenced by court after a fair trial.
Pre-conviction detention, with an uncertainty of when the trial will end, may even cause many an innocent person to simply plead guilty, for then, they can be certain when they will be freed to resume normal life.
After all, unlike the ‘richer’ accused [who have] the possibility of an agreement with the prosecution to discontinue criminal proceedings if they return the fruit of their crime and/or part of it, this possibility is almost non-existent for ordinary accused.
Compensation for the innocent for the detention suffered and other consequences
Malaysia needs a law that provides for compensation to innocent victims of the criminal justice system, who are ultimately found not guilty and to those remanded who are never even charged. They justly must be compensated for the deprivation of liberty, loss of income and other negative consequences of detention. Thailand today has an act which addresses this – the Damages for the Injured Person and. Compensation and Expense for the Accused in Criminal Case Act, BE 2544.
Such laws may also deter abuse of powers by law enforcers and may reduce unnecessary remand or other pre-conviction detentions.
Therefore, Madpet calls for:
- an end to discrimination of the victims of the administration of justice system in Malaysia
- an improvement and reform of lock-up and prison conditions to be in compliance with international standards and best practice
- an end to the practice of remanding suspects for the purpose of investigations, except for very serious crimes and for justified reasons of the fear of [suspects] absconding
- the immediate release of all prisoners, who have yet to be tried and convicted, except for those who have committed very serious crimes and/or have a high justifiable flight risk
- speedy trials for all the yet-to-be convicted in Malaysian prisons, which should end not later than six months
- Malaysia to introduce laws that will provide for just compensations to those who have been deprived of their freedoms and rights, by reason of detention and otherwise, who are ultimately not convicted and/or found to be not guilty, and/or those that have not been even charged after spending days in remand;
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)