LETTER | Abolish detention without trial law

LETTER | On Oct 27, we recall the infamous abuse of Detention Without Trial (DWT) laws in Malaysia when exactly 36 years ago today in 1987, 106 people from all walks of life were arrested and detained under the Internal Security Act 1960 (ISA).

Among them were human rights defenders (HRDs), politicians (namely Mohamad Sabu, Khalid Samad, Lim Guan Eng, Lim Kit Siang and the late Karpal Singh), academics, worker rights activists, women HRDs and many others.

Two of these DWT laws - the ISA and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 - have since been abolished around 2012 due to public protests and campaigning, among others.

However, one DWT law remains to this day, which is the Dangerous Drugs Act (Special Preventive Measures) 1985.

Following the abolition of those two draconian DWT laws, Malaysia enacted a new DWT law known as the Prevention of Terrorism Act 2015 (Pota) and the Prevention of Crime Act 1959 (Poca).

The scope of DWT laws in Malaysia is now much broader, allowing the administration to arrest and then detain indefinitely, or even impose restrictions indefinitely on anyone without according to the fundamental right to a fair trial.

Hence, the victims are unconvicted innocent persons, and as such it is in violation of the legal principle of presumption of innocence until proven guilty.

One must not be swayed by the names of any given DWT law, as they all can be used against anyone, irrespective of whether they were involved in terrorism, serious crimes or drug offences.

After all, there is no way to verify what the police or government alleges, as victims are not accorded a trial and they cannot even apply for a judicial review to confirm the validity of the ‘reasons’ given by the authorities to take action under any specific DWT law.

Right to fair trial denied

Article 11(1) United Nations Declaration of Human Rights states that ‘everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’

In Malaysia, the police or other law enforcement can only arrest suspects and detain them for no longer than 24 hours for investigation purposes.

Article 5(4) of the Federal Constitution states, that ‘where a person is arrested and not released he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority…’

The reason for this is that it is foolish to blindly trust the police or the government. Hence, the need for a remand application and order by the magistrate for any further detention beyond 24 hours.

The suspect has a right to be heard at remand hearings and the magistrate determines whether there really is a need for any further detention for the purpose of investigation.

The magistrate also determines whether the police are complying with the law, in which that there is no torture or any other wrongdoing involved.

If satisfied with the need for further remand, then and only then, will the magistrate give a remand order, and now, ‘if the offence being investigated is punishable with imprisonment of less than 14 years, the detention should not be more than four days on the first application and no more than three days on the second application.’

Additionally, ‘if the offence being investigated is punishable with death or imprisonment of 14 years or more, the detention should not be more than seven days on the first application and no more than seven days on the second application…’, states Section 117(2) of the Criminal Procedure Code.

DWT laws usurp the judicial role of the magistrate

However, under DWT laws like Poca for example, when brought before the magistrate, there is no real remand hearing and the right of the suspect to be heard is denied.

Before the magistrate, ‘Section 4(1)(a) of Poca states that ‘…on the production of a statement in writing signed by a police officer, not below the rank of inspector stating that there are grounds for believing that the name of that person should be entered on the Register, remand the person in police custody for a period of 21 days’.

To extend remand for another 38 days after that, all that is required is the production of a written statement signed by the public prosecutor saying that in his opinion, sufficient evidence exists to justify the holding of an inquiry as well as another written statement signed by a police officer not below the rank of assistant superintendent stating that it is intended to hold an inquiry.

Judicial authority and discretion of the magistrate in remand application hearings are removed, so there can be no consideration as to whether the police have abused their powers or broken laws and whether further detention is really needed at all.

The magistrate will then have no choice but to order remand for 21 days. Even in the face of obvious evidence of torture or abuse, the magistrate can do nothing about it.

Right to judicial review denied

In criminal matters, after the remand, the suspect will be charged in court and accorded a fair trial before an independent judge, but in DWT laws, there is no charge and no trial.

After a criminal trial, if dissatisfied, you may appeal to higher courts, and in Malaysia, there is a right of two appeals – but according to DWT laws, no such thing exists.

With DWT laws, the decision is made by a Board or minister, not courts and judges.

In fact, DWT laws specifically deny the right to challenge the reasons the government use to detain or restrict you. You can only challenge the procedure – whether the steps taken as required by law that lead to the Board’s decision were complied with.

It is absurd that in Malaysia, generally all ministers’ and even the prime minister’s decisions are subject to judicial review, so there is no justification for why the decisions of the Board or ministers under DWT laws are excluded.

Right to habeas corpus denied

Article 5(2) Federal Constitution states that ‘where a complaint is made to a High Court or any judge thereof that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court to be released’.

This is commonly known as the habeas corpus application, but the DWT laws do not allow any such application, which is in clear violation of the Article 5(2) constitutional guarantee.

In short, DWT is in conflict with the standards, norms and principles of the administration of criminal justice in Malaysia.

Thus, anyone, even the innocent, can be arrested, detained and even restricted for as long as the government decides without any fair trial, right of appeal or any recourse to court to challenge the reasons for their loss of liberty.

Miscarriage of justice?

DWT laws do not require the police or the prosecutor to even obtain sufficient evidence to prove to the Board, minister or court that a person has committed a crime beyond reasonable doubt.

Are our police not competent enough to go to court and prove that the accused is guilty of a crime?

In fact, there seems to be no need to even state the specific offence one under DWT laws is being ‘punished’ for.

Hence, is it not in violation of the principle that no one can be arrested, detained or ‘punished’ for something that is not even a legally recognised criminal offence in Malaysia?

It violates Article 7(1) Federal Constitution, which states that ‘no person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.’

An offence must be clear and precise, stipulating the sentence if convicted. It cannot be vague and general.

No definite period of ‘punishment’

In the administration of criminal justice, on conviction, one is sentenced to a definite period of imprisonment or other punishment. But, with DWT laws, there is nothing definite about the period of detention or restrictions, for it is indefinite.

In terms of detention, it is ‘a detention order for a period not exceeding two years and may renew for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary’.

Another example is police supervision orders, where again it can be of ‘any period not exceeding five years if the Board is satisfied that it is necessary and may renew for a further period not exceeding five years at a time’.

Hence, for DWT the loss of liberty, by reason of detention and other restrictions is not definite and can go on so long as deemed necessary.

This is a serious injustice, more so for those denied a fair trial and who have never been found guilty by the court. A person is a victim, not a convicted criminal when DWT laws are used.

The DWT laws are a tool of oppression of unjust governments that allows them to arrest, detain and restrict anyone, without the right to a fair trial, and without the ability to go for judicial review.

The question now is whether the current Pakatan Harapan government of Prime Minister Anwar Ibrahim is a government that is committed to justice and the rule of law will speedily repeal detention without trial laws or not.

It is true that prominent politicians, human rights defenders and persons have not become victims of these DWT laws for some time, but the fact is that many people in Malaysia continue to be victims of this draconian law.

In March 2023, a minister revealed that 132 were detained under Poca, but no disclosure of the numbers detained under Pota or the DD(SPM)A.

Neither was there disclosure as to how many were confined like the people of Gaza to a town or district or those under other restrictions of the DWT laws.

So, is the government committed to justice for all, or will it simply be a hypocrite and retain these draconian laws for its own benefit?

It is sad that some MPs and politicians today absurdly believe that DWT laws and other draconian laws are still needed for the police to curb crime.

The Malaysians Against Death Penalty And Torture (Madpet) reiterates the call for the abolition of all DWT laws including Pota, Poca and the Dangerous Drugs Act (Special Preventive Measures) 1985.

We also call for the immediate and unconditional release of all victims of DWT laws who are currently detained, restricted and under police supervision.

If they really have committed any criminal offence, then charge them in court and accord them a fair trial.

We urge the government to repeal the draconian Security Offences (Special Measures) Act 2012 (Sosma), which is not a DWT law, as persons arrested for Sosma-listed offences will be charged and tried in court.

CHARLES HECTOR is a spokesperson for the group Malaysians Against Death Penalty and Torture (Madpet).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.