OCT 27 should be recognised as the Malaysian Day for the abolition of detention without trial laws.
On this day in 1987, Operation Lalang happened where about 106 individuals, including human rights defenders, women activist, politicians, worker rights activist, religious groups and others were arrested and detained without trial under the detention without trial Internal Security Act 1960 (ISA).
In July 2012, the ISA was repealed alongside the Emergency (Public Order and Crimes Prevention) Ordinance 1969 – another draconian detention without trial (DWT) law – with the Dangerous Drugs (Special Preventive Measures) Act 1985 remaining as the only remaining DWT law.
There was hope that soon all other remaining detention without trial laws would also be repealed but this did not happen.
Instead a new DWT law was enacted – the Prevention of Terrorism Act 2015 (POTA). Then the Prevention of Crime Act 1959 (POCA) was amended to include detention without trial for a wide scope of alleged crimes.
Expansion of DWT’s scope
The scope of preventive detention laws was gradually expanded; today it can be used even against persons alleged of committing any of the Penal Code offences including murder, robbery, theft and rape.
It can be used against traffickers in dangerous drugs, including persons who live wholly or in part on the proceeds of drug trafficking as well as traffickers in persons, including persons who live wholly or in part on the proceeds of trafficking in persons.
Likewise, it can be used against people organisers of unlawful gaming; smugglers of migrants, including persons who live wholly or in part on the proceeds of smuggling of migrants; people who recruit another person to be a member of an unlawful society/gang to commit an offence as well as people who support terrorist acts under the Penal Code.
As such, the two individuals convicted of the murder of Altantuya Shaariibuu could have also been subjected to DWT laws but fortunately they were accorded their right to a fair trial.
Who gets subjected to DWT laws and who gets charged and tried results in discrimination and violation of Article 8(1) of the Federal Constitution which states “All persons are equal before the law and entitled to the equal protection of the law”.
The reasons why one becomes a victim of DWT laws cannot be reviewed or challenged in court. This means that an innocent person can wrongly be suspected by the administration of a crime, and can be detained without trial for up to two years and thereafter extended indefinitely for another two years at a time.
Besides detention, the said DWT law victim can also be subjected to Restriction Orders and/or Supervisory orders that removes one’s freedom of movement, association and other activities.
All these can be done to victims of DWT laws without being accorded the right to defend oneself, in denial of the right to a fair trial, and worse, the inability to challenge the reasons and orders in court.
No appeal for DWT law victims
Even a convicted criminal like former Prime Minister Datuk Seri Najib Razak has the right to two appeals in court – and in the meantime is free to walk around freely and remains a MP (Member of Parliament).
On the other hand, victims of DWT laws are denied their freedoms and rights, without even being tried and convicted by court. Such injustice must end.
DWT laws even remove judicial discretion during remand proceedings as magistrates have no choice but to allow remand as provided by these DWT laws.
DWT law victims are denied the right to fair trial, he does not have the right to defend himself at all.
Preferential treatment of criminals?
People who committed murder, robbery, drug trafficking and a range of offences could escape trial and convictions that may result in long prison sentences and even death if the DWT laws are used. In fact, they can end up being released in a couple of years.
A murderer could be free in two years; if tried and convicted, he could have been sentenced to death.
A trial is open to the public, henceforth the decision not to charge may be because there is something that the Government wants to hide from the general public. As such, DWT laws can be abused to protect criminals or their bosses or people who instructed them to commit crime.
If DWT laws are used, then the police and/or prosecution simply do not have to work hard to find evidence to prove someone is really guilty. Would simply subjecting one to DWT laws mean criminal investigation files are closed?
This may mean that the innocent may languish in DWT detention while the truly guilty may still be free out there.
It is certainly not for the police or the Government to decide who is guilty and who is not – that is role and duty of judges and courts after a fair trial. One must never forget the presumption of innocence until proven guilty after a fair trial before independent judges.
Victims of DWT laws
Malaysia is not transparent in disclosing the number of current victims of the DWT laws or for what allegation are they being made victims of DWT laws.
The victims may not be prominent politicians or personalities, but all Malaysians ought to be concerned about this large group of victims of DWT laws who are denied even their fundamental right to a fair trial.
Therefore Malaysians against Death Penalty and Torture (MADPET) reiterates the call for the immediate abolition of all DWT laws. Everyone should be accorded the right to a fair trial.
MADPET also calls for the immediate and unconditional release of all those currently detained or restricted under DWT laws.
MADPET further urges political parties and/or coalition to all political parties to take a clear stand for the abolition of all DWT laws. A clear party position prevents U-turns when they come into power.
MADPET also proposes longer periods of remand for certain serious ‘national security’ crimes to enable police and law enforcement to complete their investigation, and for an immediate moratorium on the use of DWT laws pending abolition.
Finally, MADPET urges the Government to forthwith quarterly report on the number of victims of the different DWT laws whether they be detained, restricted and/or under other orders. – Oct 27, 2021
Charles Hector is the Malaysians against Death Penalty & Torture (MADPET) founding coordinator.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
