ISA judgment a negative development

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Suara Rakyat Malaysia (Suaram) expresses its grave disappointment and serious concern over the Federal Court judgment today which overturned a RM2.5 million award to former Internal Security Act (ISA) detainee Abdul Malek Husin following an appeal by the Malaysian government.

The Federal court reversed a High Court decision and upheld a Court of Appeal ruling to overturn the High Court decision in his suit against the government. The Federal Court thus ruled that Malek Husin will not receive the damages awarded to him by the High Court and ordered him instead to pay RM20,000 in costs. It’s a total setback for the former detainee and for others Malaysians. He was detained without trial for 57 days under the ISA; he was tortured, beaten up and now has to pay costs amounting to RM20,000. Something is really wrong with our judges and the judiciary system in Malaysia!

Suaram is of the view that the judgement sets a negative bench mark on human rights development in Malaysia as the court refuse to even hear a fundamental question pertaining to Article 5 of the Federal Constitution as it went on to reject the leave application citing Court of Judicature Act.

Suaram feels that courts failed to exercise its jurisdiction to address fundamental constitutional rights and civil liberties by choosing to adopt technical grounds per se.

The judgement reaffirms the current worsening culture of impunity and torture by further granting a RM20,000 against a public interest litigant seeking justice over his rights and fundamental liberties that were purportedly violated by the most notorious undemocratic law of the nation.

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The message sent by the courts is that the only mechanism available to make police actions accountable is laden with the risk of reverse punishment in the form of costs.

Suaram views that all public interest litigation should not burden litigants with costs or the fear of costs in their bid to obtain a legal remedy over their Constitutional rights and freedom.

The Federal Court not only refused to hear a question of fundamental rights enshrined in the Federal Constitution but it also went on to punish the person for raising it. The judgment is the biggest blow to our judicial integrity since the controversial Lingam Tape and the controversial appointment of Umno-linked lawyer Tan Sri Zaki Azmi as the Chief Justice of Malaya.

Court rules in favour of human rights violators!

Suaram also views this as another dire attempt by the government to defend the indefensible ISA, which allows detention without trial. It is a known fact that all ISA detainees are subjected to severe psychological torture and put in solitary confinement during their 60 days detention. Detention without trial for such a long period without any access to lawyers, family and the outside world is itself a cruel treatment of detainees.

Many amongst them, like Malek Husin, have been subjected to physical torture while in detention.

Malaysia accepts torture?

The Federal Court judgment today, rejecting the findings of the High Court that Abdul Malek was indeed tortured while in detention, did nothing more than reaffirm the acceptance of torture in the country not only by the Malaysian government – which has  to date refused to ratify the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) – but also by the Malaysian judiciary.

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Suaram strongly urges the Malaysian government to immediately ratify the CAT. Suaram finds no reason for the government’s refusal to do so…

Abolish the ISA!

The absence of judicial checks and balances in ISA detentions has also exacerbated the abuse of power by the police who can get away with impunity. Malaysia cannot call itself a democratic country when there is such a law that permits detention without trial and gross violations of human rights.

Suaram reiterates its demand that the government abolishes the ISA, frees all detainees or accords them a fair trial. Suaram stands strongly against any law that provides for detention without trial.

Last but not least, Suaram reaffirms that it will build on the struggles, sacrifices and perseverance of the numerous courageous ex-ISA detainees and their families who have stood up against the draconian law. With the support of the people, Suaram will continue the struggle until the ISA is finally abolished.

Nalini, E.

Suaram Coordinator

12 August 2010

Background

Abdul Malek Husin was arrested on the night of 25 September 1998 after addressing a demonstration earlier that afternoon in Masjid Negara. He accused the police of severely assaulting him, physically and mentally.

In the past trial, Malek Husin told the court that he was slapped by the respondent, Borhan bin Haji Daud, when he was arrested. Then he was stripped naked and blindfolded during the interrogation period. He was physically assaulted for about 60 times, beaten-up and hit hard on the head until he passed out. He was also forced to swallow liquid with terrible stench, which he deemed to be urine. His interrogators also threatened to inject him with the HIV/Aids virus.

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Malek Husin filed his suit civil suit in March 1999, naming special branch officer Borhan Daud, the then police chief Abdul Rahim Noor and the government as respondents. On 18 October 2007, then Kuala Lumpur High Court judge Mohd Hishamudin Mohd Yunus ruled that Malek Husin’s detention during the Reformasi demonstrations in 1998 was made in bad faith under Article 5 of the Federal Constitution. Malek was awarded RM 2.5 million in damages.

On 25 March, the Court of Appeal convened by a panel of three judges, reversed the High Court decision and ruled that Malek Husin’s detention was lawful and rejected his allegations of torture while in custody. The Court of Appeal thus ruled that Malek Husin will not receive the damages awarded to him by the High Court and ordered Malek Husin instead to pay RM50,000 in costs.

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