Examining Detention Without Trial

In our society today, unlawful detention has become the new order of the day; it has gone so far to the extent that it is being supported by some laws in the constitution, these laws which the majority of the society considers as unjust, because it is being abused by the executive. I am going to talk about detention without trial in Malaysia and the various preventive detention Acts and its effects on the society.

Firstly, Detention without trial which is also known as preventive administrative detention is an act of forcing any form of restriction and condition being implied on a person’s liberty without the consent of the judiciary. This means the person’s fundamental liberties such as freedom of speech, movement and expression will be restricted; it is a punishment [1] by the executive. According to Act5 (4) of the federal constitution, “where a person is arrested and not released he shall without unreasonable delay, and in any case within 24 hours (excluding the time of necessary journey) be produced before a Magistrate and shall not be further detained in custody without the magistrate’s authority.” [2] In contrary to Act5 (4) there are four laws which supports a person being detained for more than 24 hours without being given a right for an open trial, these laws include; the Internal Security Act 1960 (ISA), the Emergency (public Order and Prevention Crime) Ordinance 1969(E (POPC) O, the Dangerous Drugs (Special Preventive Measures) Act 1985 (DD (SPM) A) and the Restricted Residence Act 1933; which the grounds for restriction is not clearly stated [3] . Although, the Emergency and the Dangerous drug Act are also effective, but the major Act which is effective is the ISA. According to the Internal Security Act, the police can arrest and detain a person for a period not exceeding sixty days and the person will not be given a right to an open trial. Throughout the period of sixty days in detention, friends, family or the person’s lawyer will not be allowed to have any contact with person; and the person will be put through both mental and physical tribulations and different interrogations. After the detention for sixty days, the person will be given the right for his/her case to be examined by an Advisory Board [4] , the result of what the Board examined in the case will be submitted to the minister for acknowledgment. If the minister supports the detention order, he has the power to even extend the period of detention to two years without any intervention of the judiciary; however there are a lot of cases where the person is detained for more than two years.

In Malaysia, the Internal Security Act which is popularly known as the ISA is the most popular and feared Act which supports detention without trial. The ISA was first established in Malaysia as an emergency Act for anti-terrorism and to maintain national security. It was enacted in 1960 under the Article 149 of the Malaysia constitution. According to Section 73 (1) of the ISA Act, “Any police officer may without warrant of arrest and detain pending enquires any person in respect of whom he has reason to believe (a) that there are grounds which will justify his detention under Section 8 (b) that he acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to economic life thereof.” [5] The main aim for the creation of this section was specifically for the “communist insurgents;” [6] to maintain national security peace, however, a lot of people like student leaders, labor activist, academicians, bloggers, NGO activists, political activist and others have been arrested and detained under the ISA Act of which their grounds of arrest does not satisfy the criteria of Section 73(1). The ISA Act is now an antithesis of the rule of law; the government is using it as a ground for silencing political oppositions and to control public life and the civil society. A typical example of this is the case of some leaders and distinguished members of Sabah opposition party, (parti Bersatu Sabah) in 1990 who were arrested during Operation Talkak. Another case happened in 1987 involving 106 people of whom Lim Kit Siang (leader of the opposition), Dr Chandra Muaffar (a human right activist) and many others were detained for almost two years by the ISA, they were accused of being involved in activities considered to be “Prejudicial to the security of Malaysia.” In 1998 the ISA was also used to arrest the deputy prime minister Anwar Ibrahim and six other political supporters [7] , because Anwar was the major leader of opposition to Mahathir and was sentenced to 15 years imprisonment however, he was released in 2004.

Different stories have been testified by a lot of detainees about the bad experiences they go through during detention despite the protest by different human right watch to stop the subjection of detainees to torture. The UN has tried different times to ban them torturing the detainees but it is being ignored. Most of the ISA detainees are usually kept in the Kamunting Detention Centre, Perak. Most of the time detainees served with similar offences are usually put together. Detainees are only allowed visitation of one person per week for half an hour. Mat Sah bin Mohammed Satray is one of the innocent Malaysians who were victims of detention without trial. He was detained on 17 April 2002; he was accused of being involved in activities that are a threat to the Malaysian national security. After his release, he talked about the cruel experience, ill treatment and physical abuse he was subjected to during his detention. He said “I was flung hard on the cement floor and they pressed their knees on the back of my neck until I felt immense pain, and until my left cheek was pressed against the dirty cement floor. I was pulled back up and pushed roughly into the prayer hall and handcuffed…My right ribs were flung hard on the floor until I felt short of breath and my cheek was on the floor. After that I was ordered to rise and the handcuffs were moved from the back to the front. I was ordered to sit cross-legged facing the wall and my head was hit against the wall.” [8]

After talking about the ISA which is the major act which supports detention without trial, there are also two other preventive detention laws which I would like to talk about; the Emergency Ordinance and the Dangerous Drugs Act. The Emergency Ordinance (EO) which was enacted on May 16, 1969; it was created to maintain peace after the May 13 1969 racial riot. Since then, the ordinance has been used to detain suspected criminals which the police have insufficient evidence that they committed the crime. The suspected criminals sometimes are detained for years without being taken to the court for a trial and this contradicts the criminal justice system of Malaysia which states a person is innocent until proven guilty. Sometimes when the detainees file for habeas corpus [9] and the court orders their release, the detainees can still be rearrested on the same grounds. Ivy Josiah, a member of the royal commission, once said “The EO is a lazy way for the police to lock up criminal suspects. The police are not properly equipped and trained. It’s a combination of laziness, lack of supervision, and shoddy investigations.” This statement is very true because the police can use the EO has an excuse not to investigate a criminal offence and just arrest any individual who they suspect to be involved in criminal activities. The Emergency Ordinance just like the ISA does not allow the detainees to have any contact with their family or a lawyer within the sixty days detention and they are also tortured and interrogated. The detainees arrested under the EO are usually kept in the Simpang Renggam detention centre which testimonies of people who have been there say the detainees are exposed to inhuman conditions; the detention centre is unhygienic and overcrowded, and although the government claims that the detainees in the camp are there for them to be rehabilitated from a crime life [10] . Out of all the people the police suspected to be criminals, some of them are very innocent, by arresting them without letting them be tried in court is spoiling their criminal record, and this prevents them from getting good jobs when they are released; this can lead to them going back to criminal ways which they were not doing before since they can’t get a good job to fend for themselves and this will result to an increase in crime rate. Many human right watch have protested against the EO and have pleaded with the government to make all criminal case whatsoever heard in the court; it is supposed to be the court’s decision to say a person is guilty or innocent.

The Dangerous Drug act (DDA) was created as a preventive measure to stop drug trafficking. In 30th May 1985, the law was amended by the parliament to include detention without trial for also 60 days. Now the DDA is being abused and it is used to detain people without giving them the opportunity to a fair trial and when the people are released they can still be arrested under the same act. This can be seen in the case of Khaeryll Benjamin Ibrahim an actor who was arrested under the grounds of the DDA after being freed by a magistrate court with bailed charge of RM2000 paid by his mother, he was rearrested immediately after he was released and there was no grounds said for his arrest even his lawyers were not allowed to see him. This is clear case of an abuse of the judicial power by the government and police. Under the DDA just like the other preventive Acts, the detainee will also face traumatic experiences during his sixty days detention and also the home minister has the right to sign extra two years detention order to the person. [11] Laws like the DDA violate the fundamental human right of a person. These laws contradict the rule of law which Malaysia claims to practice; because a person liberty is terminated under the DDA.

The big question is should all these preventive detention Acts be abolished or continued? Although there are many criticism against all of them more than those who support the Act, but there are still some organizations that are in support of them for example, the Badan Bertindak Perpaduan Melayu (Malay Unity Action Body); an organization who fight to protect the constitution of Malaysia. The president of the organization Osman Abu Bakar once said “The ISA is still relevant in the long term. It only needs to be reviewed and amended to suit the current situation.” Some other organizations who support the ISA are the Putra Association of Penang and the Al-Ehsan Organisation of Malysia whose leader is Mohd Ridzwan Sulaiman [12] , this organization is in support of the all these Acts they believe it was created for the security of the people and to maintain peace in the nation. They believe that these Acts should not be totally abolished they should just be amended to be fairer and they should not be abused and used as a way of eliminating political opponents or silencing public opinion.

On the other hand, there are also a lot of organizations who want all the preventive detention Acts to be abolished. One of the biggest local organizations against these Acts is the Suara Rakyat Malaysia (SUARAM), another organization is Gerakan Mansuhkan ISA (GMI) Movement. There are also other international organizations that are against the administrative detention laws, organizations such as the World Organization against Torture (OMCT) also, the International Federation for human right (FIDH) and many more. All these Organizations have done a lot of protest for the abolition of these preventive detention Acts. Recently, a rally was organized by the OMCT and SUARAM on the 1 August 2010 at Sogo Shopping complex in Jalan Tuanku Abdul Rahaman to protest against detention without trial. The rally was repressed by the police up to 589 people including 44 minors who were arrested for taking part in illegal activities. In the past, the government has always repressed most of the rally held by these organizations depriving them of their right of expression. [13] Although, there are cases were these organizations have won for example the case of Badrul Zaman PS Mohammed who was detained by the ISA in 1994 for issuing fake permits and passport to foreign workers, when his case was tried he was found innocent and he was awarded RM3.3 million for wrongful detention. However, in general the ISA always prevail over the popular public opinion [14] .

In conclusion, all the Administrative detention Acts are just necessary evils to the Malaysia society, because it is unpleasant and unlawful to the majority people in the society, also it is needed by the society to maintain national security. In my opinion I don’t believe these Acts should be abolished, I believe these Acts should be amended to suit the society, and the government should try and listen to the public opinion. The inhuman exposure the detainees face should be stopped; there are other better ways to rehabilitate offenders. Since Malaysia is said to be a democratic state and democracy isn’t just about voting the fundamental human right of citizens should not be restricted in a democratic state. So, therefore the Acts should be amended in a way that the human rights of individuals can be expressed and it should not be used as a way to eliminate political opponents.