Repeal laws that allow detention without trial; immediately release all detainees

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Image: themalaymailonline.com

Malaysians Against Death Penalty and Torture (Madpet) is shocked by a news report (Malay Mail, 19 October 2019) entitled “Home minister: Malaysian militant linked to 9/11 won’t be freed next month”.

The report refers to one Yazid Sufaat, a 55-year-old biochemist, allegedly a Malaysian militant linked to the 11 September 2001 attacks in the United States, who is now in detention in Simpang Renggam under the Prevention of Terrorism Act 2015 (Pota), a detention-without-trial law.

Detention-without-trial laws allow for the arrest and detention of persons without trial for a period of two years, which can be extended indefinitely two years at a time.

These detainees have never been tried, found guilty and convicted by court and as such have been denied the fundamental right to a fair trial.

Worse, any person arrested, detained and/or restricted under such detention-without-trial laws cannot even challenge the alleged reasons used by the police or the government in court. There is no judicial review that allows detainees to challenge the alleged reasons used for their detention.

An example of this is seen in Section 15B(1) Poca, which states: “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,…” The only thing subject to judicial review are matters of procedural compliance like is he being detained by virtue of an order by the Board.

In short, an innocent man can so easily be wrongly arrested, detained or restricted without any avenue to clear his name and prove his innocence. The name and reputation of a person and his family can also be tarnished without there seemingly being no means legally to challenge it.

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The Najib administration abolished two detention-without-trial laws, namely the Internal Security Act 1960 (ISA) and the Emergency (Public Order And Prevention. Of Crime) Ordinance 1969.

But, following that, through amendments, the government broadened the scope of the Prevention of Crimes Act 1949 (Poca) to now enable it to be used for, among other things, any Penal Code offences and other crimes. Detention without trial was also brought in to Poca by amendment.

Then, there was the passing of a new detention-without-trial law, the Prevention of Terrorism Act 2015 (Pota).

All detention-without-trial laws are unjust and a violation of the fundamental human right to a fair trial. It violates the presumption of innocence until proven guilty.

Yazid Sufaat apparently has been a victim of detention-without-trial, not once but several times. In 2013 he was charged in court but there seems to be uncertainty whether there was a trial or not.

Did the court find Yazid Sufaat not guilty?

From a perusal of court judgments, it suggests that Yazid Sufaat was arrested on 7 February 2013 and charged in court under Section 130G (inciting, promoting or soliciting property for the commission of terrorist acts).

At the High Court, he was successful in challenging the charge. There was an appeal to the Court of Appeal by the prosecution and the appeals court allowed the appeal on 24 January 2014, and said, amongst others things “…order that the respondents’ case be remitted to the High Court, Shah Alam for the said court to set the dates for trial….’ ([2014] 2 CLJ 670) – Current Law Journal].

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As such, the trial should reasonably have proceeded at the High Court, and if he was found guilty by the court, he would have been sentenced to imprisonment, as the law says a person convicted “shall be punished with imprisonment for a term which may extend to thirty years, and shall also be liable to fine”.

As such, why is Yazid now being detained under the detention-without-law Pota? If he was found guilty by the High Court, he would simply be in prison serving out his prison sentence.

Did the High Court, after the trial find Yazid not guilty and as such the government simply resorted to using a detention-without-trial law, hence avoiding a fair trial?

There are many others who have been or continue to be victims of draconian detention-without-trial laws in Malaysia. Many of them may be arrested, detained or restricted without being accorded a fair trial, on allegations made by the police and the government which could also be false or baseless.

Police/minister’s belief irrelevant: only court decides on guilt or innocence

Police have arrested many suspects, and many have been released without ever being charged. Many have also been charged in court, only for the court, after trial, to find them not guilty.

To prevent wrongful deprivation of rights and liberties by the police or government, independent courts serve as a necessary safeguard to prevent miscarriage of justice. Courts only should decide on guilt or innocence – not the police, some board, the home minister or the government.

Past arrests and detentions under detention-without-trial laws should never be considered ‘criminal records’ or proof that these are bad people. Only convictions by court after a fair trial is proof. Remember that Lim Kit Siang, Hadi Awang and Mat Sabu were all detained under detention-without trial laws – the ISA, and it is certainly wrong to say that they have a criminal record.

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Good peoples’ representatives and parties must call for abolition of detention without trial

There is a belief that some politicians and political parties may no longer be pushing as hard as they did before for the abolition of detention-without-trial laws simply because none of their leaders or members has fallen prey to such laws.

It could also be because the past Barisan Nasional government included in some detention-without-trial laws the provision which states: “No person shall be arrested and detained under this section solely for his political belief or political activity” – Section 4(2A) Poca. This provision may have resulted in some politicians and their parties being less concerned about the abolition of detention-without-trial laws. The people are still at risk and many have fallen and are still victims of these draconian detention-without-trial laws.

Therefore, Madpet

  • calls for the immediate and unconditional release of Yazid Sufaat and all others currently being detained or restricted under the detention-without-trial laws including Pota, Poca and the Dangerous Drugs (Special Preventive Measures) Act 1985
  • calls on the government to charge and accord the right to a fair trial all persons who allegedly committed any crimes, including crimes concerning terrorism
  • calls on Malaysia to immediately repeal all detention-without-trial laws
  • call on the Malaysian media to be conscious about reporting the truth, and not simply propagate police/government suspicions or beliefs as being the truth, remembering always that a person is to be presumed innocent until proven and found guilty in a fair trial by the court
  • calls on Malaysia to uphold human rights and justice

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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