The date 27 October should be recognised as the Malaysian day for the abolition of laws that allow detention without trial.
In 1987 on this day, Operation Lalang happened: about 106 people, including human rights defenders, women activists, politicians, workers’ rights activists, members of religious groups and others were arrested and detained without trial under a law that allowed detention without trial, the Internal Security Act 1960 (ISA).
ISA repealed but detention without trial lives on
In July 2012, the ISA was repealed. The Emergency (Public Order and Crimes Prevention) Ordinance 1969, another draconian law that allowed detention without trial is also gone. However, the Dangerous Drugs (Special Preventive Measures) Act 1985 remained as the only law that allowed detention without trial.
There was hope that soon all other remaining laws that allowed detention without trial would also be repealed, but this did not happen. A new law that allowed detention without trial – the Prevention of Terrorism Act 2015 (Pota) – was enacted. Then the Prevention of Crime Act 1959 (Poca) was amended to include detention without trial for a wide scope of alleged crimes.
No longer about ‘national security’ – but expanded to cover many crimes
The scope of preventive detention laws was expanded, and today these laws can be used even against those alleged to have committed any of the Penal Code offences, including murder, robbery, theft and rape. These laws can be used against traffickers of dangerous drugs, including those who live wholly or in part on the proceeds of drug trafficking; traffickers in persons, including persons who live wholly or in part on the proceeds of trafficking in persons; those involved in the organisation and promotion of unlawful gaming; smugglers of migrants, including those who live wholly or in part on the proceeds of smuggling of migrants; those who recruit or agree to recruit another person to be a member of an unlawful society or a gang or to participate in the commission of an offence; and those who engage in the commission or support of terrorist acts under the Penal Code.
As such, the two persons convicted of the murder of Altantuya Shaariibuu could have also been subjected to laws that allow detention without trial, but fortunately they were accorded their right to a fair trial.
Who gets subjected to detention without trial and who gets charged and tried amounts to discrimination and is a violation of Article 8(1) of the Federal Constitution, which states: “All persons are equal before the law and entitled to the equal protection of the law.”
The reasons why one becomes a victim of laws that allow detention without trial cannot be reviewed or challenged in court. This means that an innocent person can be wrongly suspected by the administration of a crime and can be detained without trial for up to two years, and the detention can be extended thereafter indefinitely for two years at a time.
Besides detention, victims of these laws that allow detention without trial can be subjected to restriction orders or supervisory orders that remove their freedom of movement, association and other activities. All these can be done to victims of these laws without their being accorded the right to defend themselves – in denial of the right to a fair trial. Worse is their inability to challenge the reasons and orders in court.
Even a convicted criminal can walk free until their appeals
Even a convicted criminal like former Prime Minister Najib Razak has the right to two appeals in court and in the meantime is free to walk around freely and remain a member of Parliament.
On the other hand, victims of laws that allow detention without trial are denied their freedoms and rights, without even being tried and convicted in court. This injustice must end.
Laws that allow detention without trial even remove judicial discretion during remand proceedings, as magistrates have no choice but to allow remand as provided by these laws.
Victims of these laws are denied the right to fair trial: they do not have the right to defend themselves at all.
Possible protection for or preferential treatment of ‘criminals’
Those who commit murder, robbery, drug trafficking and a range of offences could escape trial and convictions resulting in long prison sentences and even death if laws that allow detention without trial are used; those who did commit crimes could end up being released in a couple of years. A murderer could be free in two years, whereas if tried and convicted, he or she would have been sentenced to death.
A trial is open to the public, and the reasons not to charge may be because there may be something that the government may want to hide from the public. As such, laws that allow detention without trial can be abused to protect other criminals and even their bosses or those who instructed them to commit crime.
These laws promote incompetence
If laws that allow detention without trial are used, then the police or the prosecution simply do not have to work hard to find evidence to prove someone is really guilty. Would simply subjecting one to laws that allow detention without trial mean criminal investigation files are closed? This may mean that the innocent may languish in detention, whilst the truly guilty may still be free out there.
It is certainly not for the police or the government to decide who is guilty and who is not. That is the role and duty of judges and courts after a fair trial. Never forget the presumption of innocence until proven guilty after a fair trial before independent judges.
How many victims? What are their alleged crimes?
Malaysia is not transparent in disclosing the number of current victims of laws that allow detention without trial and the nature of the allegations that have them victims of these laws.
The victims may not be prominent politicians or personalities, but all Malaysians ought to be concerned about this large group of victims of laws that allow detention without trial who are denied even their fundamental right to a fair trial.
Malaysians Against Death Penalty and Torture (Madpet) reiterates the call for the immediate abolition of all laws that allow detention without trial. Everyone should be accorded the right to a fair trial.
Madpet also calls for the immediate and unconditional release of all those currently detained or restricted under these laws.
Madpet urges political parties or coalitions to take a clear stand for the abolition of all laws that allow detention without trial. A clear party position prevents U-turns when they come to power.
Madpet proposes longer periods of remand for certain serious ‘national security’ crimes to enable the police and law enforcement to complete their investigations and for an immediate moratorium on the use of laws that allow detention without trial, pending their abolition.
Madpet urges the government to provide immediately quarterly reports on the number of victims of the different laws that allow detention without trial – whether the victims are detained, restricted or under other orders.
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)