Zaid Ibrahim - Detention Without Trial in Malaysia: the ISA and other oppressive emergency laws

Detention Without Trial in Malaysia: the ISA and other oppressive emergency laws
Dato' Zaid Ibrahim
Apr 4, 2011
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This speech was delivered at Amnesty International, London, in conjuction with the 50th anniversary of Malaysia's Internal Security Act - organized by The Solicitors International Human Rights Group and the Abolish ISA Movement UK - on April 2nd 2011.
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The Internal Security Act, the ISA, is a source of constant consternation for Malaysian society. It is a piece of legislation that has succeeded in instilling fear into the hearts of every one of our citizens. So much so that parents no longer use the threat of the boogeyman to get their children to behave but rather the home minister and the ISA enforcer that will come and get them in the middle of the night.

When he took over as Prime Minister in 2009, Dato’ Seri Najib Tun Razak delivered a speech that was full of hope and of inspiration to many Malaysians. He promised to reach out to all parts of Malaysia; to all of those in our national discourse. He assured us that in pursuing our national agenda no one will be left behind. He also gave his solemn pledge that the Government will conduct a comprehensive review of the Internal Security Act and that the Home Ministry will announce the details shortly.

It is has been 30 months since and we are yet to see any progress of the promised review. I call on the PM to keep his word and to review the ISA and other oppresive “detention without trial laws” found in Malaysia. The Prime Minister will not compromise the security of the country by doing so; and no right thinking Malaysian would want our security to be compromised. On the contrary, the repeal and review of such laws will make our law enforcement more effective; as the Police will no longer able to detain first and decide later what to do with the individual detained. They will become more vigilant and more professional in the exercise of their work. At the same time it will lend credence to the pledge given by the PM to make Malaysia a developed economy and country. There is no developed nation in the world that has preventive detention laws as wide and as oppressive as those in Malaysia.

Preventive detention is detention without trial. The individual is punished without the benefit of an open trial before a court of law. Not only does it violates every known human rights principle, including the very basis of the legal system, that one is presumed to be innocent until proven guilty, itis also just plain cruel and unjust to do this to another human being. In Malaysia, it is more pernicious because the courts have been excluded since 1988 from exercising judicial review of the detention and the reasons given by the detaining authority.

We have enough laws to deal with subversives and those threatening public order under the Penal Code. If we have to incorporate new anti-terrorism laws to deal with terrorists, by all means do so. But he must be prepared to seriously repeal the archaic provisions we now have that allows for detention without trial; and no recourse to the courts.

Malaysia is in what appears to be a permanent state of emergency. We are still living under four emergency proclamations:
- the 1964 proclamation as a result of the confrontation with Indonesia,
- the 1966 Sarawak proclamation following a constitutional standoff,\
- the 1969 May 13 proclamation, and
- the 1977 Kelantan proclamation following a political crisis.

These four legislations in the country allow for detention without trial. The detention is usually for 60 days and the Home Minister can extend the detention for another 2 years. This 2 year extension can go on indefinitely. And no court of law can review the order of detention. Even though there is an Advisory panel that reviews the detention from time to time, this panel is far from independent and part of the Prime Minister’s office so the opinion of the Police and Home Minister will hold sway. The independence of the advisory Panel as envisaged under the Constitution was nullified by administrative orders and political expediency.

Let us look at these laws briefly. The Restricted Residence Act of 1933 was used by the colonial administrators to deal with gang fights and underworld activities at a time when Malaya was without an adequate police force. This was so the Police could detain such gangsters in a certain area where they can be monitored and their activities curbed. Today, the Government takes pride in having a Police Force second to none; so why do they need to use this legislation? A thorough investigation and successful prosecution will be a better option. There have been many serious allegations against the Police for involving themselves in gaming and other unlawful lucrative activities; and that corruption and abuse of power by police personnel are rampant. Who can forget, in 2008, when a Deputy Minister in the PM’s department accused the Inspector General of Police of being connected with underworld warlords. There was no response at all from the Police. A repeal of such instrument of abuse like the Restricted Residence Act will be a positive development for the Police force.

Another law that allows for detention without trial is the Dangerous Drugs (Special Preventive Measures) Act 1985. Yes, drugs kill and everything must be done to curb this menace. But why detention without trial? If it is for the purpose of facilitating investigation; then why do we need long indefinite periods of detention? And why must the court be excluded from knowing the basis of detention that we need to exclude judicial review? This legislation can also be abused in many ways. Drugs is big business. So illegal big business will tempt those corrupt elements in the Police force with incentives in exchange for prosecution. If a nominal detention is the way out for these criminals then they will have no qualms in bribing the police.

Another legislation that allows for detention is The Emergency (Public Order and Prevention of Crime Ordinance) 1969. Because Malaysia is still under Emergency Rule, laws meant to deal with racial riots of 1969 are still being used against ordinary Malaysians who are only protesting about a book or the price of food stuff. The PM must look ahead and learn to trust the people of Malaysia. He must revoke the Four Proclamations of Emergency that still subsist today. The people are with you to see the country going forward. They may have different views. They may even be misguided in some ways. But they are not trouble makers; probably wanting to express themselves in ways common to others in many parts of the world. The world is changing and there is no comfort to say that our country is different. The people want just laws; and they will reward the PM with real support where he can govern with consent of the people rather than by fear.

Finally, the detention laws that most people know of is the ISA. This outrageous charge not only violates a person’s right to be presumed innocent until proven guilty but permits incarceration upon the flimsiest accusation of someone just planning to commit a crime.

The ISA should be abolished outright as amendments have already been made to it on 18 separate occasions, and each time increasing its severity, for example extending the period of detention from 28 days to 60 days. Section 73, which previously required a detainee to be produced before a magistrate within 24 hours has been amended to now to provide the police with extensive powers of arrest without warrant.

According to the International Bar Association, the most draconian of the ISA amendments was the addition of Sections 8B and 8C in 1989, which expressly ousted the power of the court to review the decision of the Home Minister for ordering a detention up to two years and renewable repeatedly for an indefinite length of time. As provided in the foregoing amendments, even the right of habeas corpus has been specifically excluded from review.

The ISA is not necessary anymore. There is no insurrection or guerilla war in the country, and there is no uprising of any kind.

The ISA must be repealed.

But that does not mean we do not require protective laws. Unfortunately, the world we live in demands certain safeguards. The government should introduce a proper anti-terrorism act in its place. It should be fair and lawful. For the point of such laws are to protect the public without sacrificing our humanity.

The PM is a knowledgeable person and well read. He must know what ISA was meant to do and the country no longer needs such laws. Those Ministers in the Cabinet would have advised the PM differently perhaps. They have made sweeping statements alluding to the likes of America, UK and even Australia as countries which have detention laws. What they omit to mention are three simple facts. The detention is applicable only against suspected terrorists; they are for a limited period of up to 28 days on some countries and a lot less in Canada and Australia and that the Courts are available to challenge such detention. Malaysia, which has no history of terrorist attacks; should be following the practices of these countries.

Ladies and gentlemen. Lasting political transformation requires us to take a giant step away from the past. We need to evolve. Laws like the ISA, while possibly reflecting the best wisdom of the times, have no place in a modern and civilized society. Our Prime Minister has a tremendous opportunity. To start on a clean slate. To abandon those fears of the past and set the foundations for a new Malaysia. Because we do not need these draconian laws to govern our state. Because oppressing our people will only serve to erode our democracy.

Dato’ Zaid Ibrahim

Al-Fatihah: Aminul Rasyid Amzah (Justice Delayed is Justice Denied)

Al-Fatihah: Aminul Rasyid Amzah
16 May, 2011By Khairul Idzwan
Loyar Burok

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It has been a year since Aminul Rasyid Amzah was killed by the police. Until today, there is no official apology from the police and the case is still in court, where the accused has been called to enter his defence, as a prima facie case has been established against him. But still, justice delayed is justice denied.
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I was not at the scene of the incident, so I can not tell the truth behind the incident. However, I would like to give my personal opinion on the manner in which the police did the shooting.

This is not the first time the police shot suspects to death, as suspects who are under a remand order can also died in lock-ups. Remember Kugan Ananthan and Gunasegaran Rajasundram? Or should I remind you with two deaths at the premise of the police’s "brother", the MACC? Teoh Beng Hock and Ahmad Sarbani? To make things straight, I have nothing against the police or the authorities. I know they have a huge responsibility to ensure that Malaysians live peacefully. But not everything can be settled through shooting or killing, especially when the shooting causes the death of suspects.

In this particular incident, the reason for the police shooting is questionable. I don’t think the police needed to fire multiple shots in the first place. The boy was wrong for driving without a valid licence and snuck out from his house in the middle of the night without his parents’ permission. But can that be a justification for the shooting? Moreover, if I were in his shoes, maybe I would do the same. Just imagine, being chased by several people in motorcycles and accidentally knocking a car. Then, suddenly being chased by police patrol cars. Any "Ali, Ah Chong and Muthu" aged 15 would probably panic in such a situation.

The police had reasonable suspicion to arrest him. Section 24 of the Police Act provides that "if any police officer has reasonable grounds to suspect that a vehicle is being used in the commission of any offence, he may stop and detain the person" [Section 24(1)(b)]. Section 24(3) of the same Act further adds that "if the person fails to obey any reasonable signal of the police officer to stop the vehicle, the person is guilty of an offence and can be arrested without a warrant."

So, in my opinion, when the car had stopped, the police should have first told the boy to surrender. In some newspapers, they reported that the police shot the boy when he tried to run over the police while reversing the car. My personal opinion is that the statement is quite absurd. Based on several photos I have found in blogs, it is impossible for the car to go forward. So, logically, the police will go to the side of the car and not to the back of the car if they wanted to check the condition of the boy.

And some newspapers reported that the police found a long parang in the car. Is it just a cover up to justify the shooting? Nobody will ever know.

Nevertheless, the mother revealed another fact to reporters. The boy had already died before the car went over the side of the road and hit a house. This means that while asking the car to stop, the police had already shot the boy to death. I think this is intolerable. The police should not start firing at the car if they know that, by shooting it, they may cause death to the persons inside the car.

According to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life [Article 9]. Article 10 further adds that the officials must identify themselves as such and give a clear warning on their intent to use firearms, with sufficient time for the warning to be observed unless by doing so, it will unduly place the law enforcement officials at risk, or would create a risk of death or serious harm to other persons.
The point here is, the use of firearms can only be justified if it is strictly unavoidable.

Even in criminal law, the defence of self-defence can only be invoked if he is in imminent danger, with no other means to save himself from that danger. In an English case, Rashford (2005) All ER 192, the question in that case was whether the defendant feared that he was in immediate danger from which he had no other means of escape; if the violence he used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence. The keyword here, besides imminent danger, is the proportionality of the attack.

Thus, did the police fire a warning shot before firing at the boy’s car, and subsequently at the boy? Next, did the boy fire back or use other means to attack the police and put the police in imminent danger?

The police have many powers in order to prevent crimes, but that does not includes shooting a suspect to death. According to Article 11 of the Universal Declaration of Human Rights, 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. This means that a person should be considered innocent until it can be proven that he is guilty. If a person is accused of a crime, he should always have the right to defend himself. Nobody has the right to condemn him and punish him for something he has not done.

So, is there any proof to show that the boy is guilty? Even under Article 11 of the UDHR, he is innocent until he is proven guilty. The police must also remember that a suspect is not necessarily guilty. The word suspect itself shows that the suspect is not yet guilty but that it is just suspected that he may have committed a crime.

A fatal shot will cause death to the suspect. If the suspect is dead, how can the police tender evidence to show that he is guilty? How can the investigation continue when the suspect himself is dead?

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Khairul Idzwan read law in UiTM and is now chambering. He misses his law school days. He blogs at http://kairulizwan.wordpress.com.
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