Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

Paper presented at the joint Amnesty International and SUARAM's Open Forum 'Take a Step To Stamp Out Torture' on 1 November 2003

Wild animals never kill for sport. Man is the only one to whom the torture and death of his fellow creatures is amusing in itself.

Froude, James Anthony

Parameters

When I was asked to speak today, the parameters given to me was that I should speak on torture vis-à-vis legislation in Malaysia. I thought about it and said what is there to say? Surely I have known no legislation in Malaysia promoting or paving the way for torture.

Then I thought deeper and came up with this.

What does one mean when one speaks of 'torture'?

Article 1 of the United Nations Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment defines 'torture' as 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.'

Article 2 of the Inter-American Convention To Prevent And Punish Torture states that 'torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.'

In a nutshell, the act of 'torture' in its most common form is broken down as follows:

1. There is the torturer who is part of the State's enforcement agencies.

2. There is the tortured who is the victim.

3. There is a physical, as it is, 'coming together' of the torturer and the tortured.

3.1 This 'coming together' is for a reason or purpose (ie, for the torturer to elicit or obtain information or confession from the tortured).

3.2 This reason or purpose, it must be stressed, is unilateral (ie, a decision based on and resting entirely with the torturer and at his will, command or direction). The torturer initiates this process.

3.3 There is no reason or purpose, on the part of the tortured, for him to 'come together' with the torturer.

3.4 In just this, at the inception of the 'coming together, there is already inherently vested an amount of pressure or undue influence on the tortured when he 'comes together' with the torturer.

4. There is infliction of physical abuse or mental pressure by the torturer on the tortured.

4.1 This infliction is to achieve the reason or purpose of the torturer.

4.2 The question then - how does one define or recognise 'infliction of physical abuse or mental pressure'. The answer, I would suggest, would be to look at the aim of the 'coming together' between torturer and tortured.

4.3 The broad definition in Article 2 of the Inter-American Convention To Prevent And Punish Torture as follows gives a good picture:

'Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish'.

4.4 Torture is manifest, even without physical abuse or mental pressure, whenever the torturer attempts to or does 'break you down'. This should be the human rights yardstick when one speaks of 'torture'.

Precepts of a criminal justice system

Why a criminal justice system? What is the foundation for such a system? Why should we believe in such a system?

Why do I believe in the system? I would say because there are at least 4 important precepts such a system upholds. These precepts are fundamental to all human beings. They are:

1. Every individual human being born is born free.

2. No individual human being may be punished, executed or incarcerated by the State in secret.

3. Any individual human being who stands accused or charged with by the State of a certain act or crime, is entitled to a free, just, impartial, open, public and effective trial.

3.1 This would include the right to call witnesses in his defence, to cross-examine the State's witnesses, to challenge the State's evidence and to put the State to strict proof for the State to prove its case beyond all reasonable doubt.

3.2 Importantly, the court in a criminal case is not only presided over by the particular judge but by the people. It is a court of public opinion. The decision of the judge is (or should be) the decision of public opinion. That is why any criminal trial must be in the open and accessible to the public.

3.3 This is the basic right availed to every individual human being. This is also enshrined in Article 5(1) of the Federal Constitution which reads:

'No person shall be deprived of his life or personal liberty save in accordance with law.'

4. The State, with the backing of all its powerful tools and agencies, must establish its case, accusation or charge against the individual human being beyond all reasonable doubt without assistance from the accused or person charged.

4.1 The traditional objection to compulsory interrogations was to prevent unreliable, involuntary statements or confessions being elicited from the detainee/tortured. This objection is still valid today.

4.2 Blackstone in Comm iv 296 explained it: 'For at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men'. No one is bound to betray himself.

4.3 The danger in over-zealous interrogation, constant mental and physical pressure and torture as a means to elicit a statement or confession favourable to the interrogator/torturer far outweighs any tangible benefit from such a statement or confession. Hence, it had evolved a corpus of opinion establishing the right to silence and non-incrimination.

4.4 The human rights perspective, it is submitted, must maintain upholding this right to silence. The right to silence is corrollary to the right to freedom of expression and on the other side of the coin, the right to freedom of non-expression.

4.5 Justice Devlin in R v Swaffield; Pavic v The Queen [1998] HCA 1 said:

'So great is our horror at the idea that a man might be questioned, forced to speak and perhaps to condemn himself out of his own mouth ... that we afford to everyone suspected or accused of a crime, at every stage, and to the very end, the right to say: 'Ask me no questions, I shall answer none. Prove your case'.'

This is meant by the 'right to trial' in a criminal justice system. The 'right to trial' is the life of the criminal justice system, it is axiomatic - the system is practised and in place for the sole reason of manifesting this right.

And therefore, it is parlance to say that every criminal case is a human rights case and every human rights case is a public interest case.

For the criminal justice system makes no distinction. Every legal system which has a criminal justice system believes in the 'right to trial' and in effect enforces, recognises and applies an inviolable human right.

With that in mind, I would like now to discuss 3 matters: legislation which has in one way or another espoused torture, the role of judges in an advanced criminal justice system and terrorism, torture and the future.

Criminal Procedure Code

The police is one of the State's enforcement agencies. When a police report is made or when the police are notified of an alleged offence, they commence investigations. The start of police investigations usually involve the detention of a suspect for questioning.

Section 117 of the Criminal Procedure Code allows a person to be detained by the police for a maximum period of 24 hours. The police is then obliged to produce the detainee before a magistrate if the police wishes to detain the detainee for more than 24 hours.

For such an application normally known as a 'remand application', the police would have to justify to the magistrate that investigations cannot be completed within 24 hours, there are grounds for believing that the accusation against the detainee is well founded and that it is necessary to detain him further. The police would also have to produce before the magistrate a copy of his investigation diary showing among others, the time at which the order for investigation reached him, the time he began and closed his investigation, the place(s) visited by him and a statement of the circumstances ascertained through his investigation.

A magistrate hearing such an application may order further detention of the detainee for any period not exceeding 14 days. For every further detention order made by a magistrate, there must be reasons for such an order and the same must be recorded. It has been known in many instances that magistrates give the full 14 days at the first remand application.

Whilst it is acknowledged that the police should be given powers to detain a person for questioning, there is an important distinction to be drawn between 'questioning' and 'interrogating'. A person may be detained for questioning whereon which he may choose to say nothing. A person may however not be detained for interrogation (ie, aggressive questioning) whereon which any answer or statement he gives would be coerced. The line may be a fine one but the inherent danger that any answer or statement given as a result of interrogation may have been involuntary or unreliable far outweighs the benefit of having such an answer or statement.

In Re Mohamad Ezam Bin Mohd Nor [2001] 3 MLJ 372, Justice Wahab Patail made this distinction:

'It is true that there is no law that specifically provides that the police may not interrogate a suspect. But at the same time, it is equally true that there is no law that says that the police may interrogate a suspect. ... While s 112 of the CPC uses the term 'examine' in relation to witnesses, s 113 of the CPC uses the term 'questions'. Professional questioning is questioning in a systematic manner, and may be described as examining the person. Even so, it must be noted that the term examined in s 112 of the CPC is used in the context where there is an obligation to answer questions and to tell the truth as a witness, while in s 113 of the CPC only the term question is used. Now, s 113 of the CPC refers to answers by a person in custody to questions put to him. Asking questions of a person in custody or otherwise is based upon the right of freedom of speech. The person who is asked those questions has the right to refuse to answer or to answer to those questions put to him. Indeed, the purpose of s 113 of the CPC is to protect the person in custody by requiring that the caution under s 113(a)(ii) of the CPC must first have been administered, or as soon as possible. However, it is clear that s 113 does not state that there is any right conferred upon the authorities to examine or interrogate a person who is in custody. Ground 3 of the application for remand is 'Menjalankan soalsiasat ke atas suspek ...'. Now, in the Malay language 'soal siasat' can mean examine or interrogate. Provided these terms are confined to the meaning of question or questioning formally, closely and thoroughly there appears to be no contravention. However the terms interrogate and interrogation may be understood in other jurisdictions or countries, in Malaysia, they carry the meaning 'to question aggressively' (see Fajar-Oxford Advanced Learner's English-Malay Dictionary). The dangers arising out of the belief one could question aggressively requires me to address the issue in no uncertain terms. That the legislature chose to use terms other than 'interrogate' is clear indication that the legislature does not intend to retrogress to the laws of the age of inquisition under the courts of the Star Chamber. Interrogation in the sense of questioning aggressively is not simply asking questions, but questioning and insisting upon an answer until the interrogator is satisfied with his answers. The dangers of placing a person under remand so as to be so interrogated are heightened because he is not at liberty to walk out and walk away from such interrogation. The view that any evidence obtained from witnesses or accused persons under such interrogation, in other words, not of a voluntary nature, unlike that obtained from a person having the right not to answer the question, is so well accepted as inherently unsafe that even if the evidence is technically admissible it may still be excluded as being inherently unsafe to rely on (see Goi Ching Ang v PP [1999] 1 MLJ 507). ... To bring the question before us back into its proper perspective and focus, it must be borne in mind clearly that the issue before this court is whether the purpose of interrogating the suspect or to obtain cautioned statements under s 113 of the CPC are valid grounds to obtain an order for remand. Without the specific sanction of any law, the right to ask questions arises only from the right of freedom of speech: any person, even the police, can ask questions. But it is up to the person to whom the questions are asked to answer them or not. ... It is necessary to bear in mind the only grounds upon which the personal liberty of a person not yet proven beyond reasonable doubt to be guilty and not yet convicted, for such is the legal situation of a suspect, may be abridged by deprivation of it by arrest and remand before he is charged, in order to serve the public interest that laws are enforced and offenders be brought to justice for their offences are where the suspect is likely to abscond, interfere with witnesses and/or evidence. He is not remanded into custody as any form of punishment. It is also necessary to bear in mind that whilst cooperation in investigations is a factor to be taken into account for mitigation in sentencing, non-cooperation is not a factor for enhancing sentence as it would negate his right to remain silent. There is therefore, no basis to hold a person in custody until he cooperates. No matter how guilty a person may be, he is entitled to a trial where the burden is entirely upon the prosecution to prove, beyond reasonable doubt, that he is guilty of the offence with which he is charged. There is therefore no legal basis for any argument he may be interrogated until he is forthcoming and assists in the investigation against him. For all of the reasons above, I conclude that s 117 of the CPC does not authorize the remand of a person for the purpose of questioning him aggressively (interrogating) because ss 112 and 113 of the CPC do not in any case authorize interrogation of a suspect, and he may be questioned systematically (examined) only if he had been cautioned. A remand order for the purpose of interrogating a suspect, or examining him without showing he has been cautioned is therefore bad in law.'

The remand provisions which allow police detention as highlighted above provides fertile ground for torture of detainees. These provisions allow for the 'coming together' of the torturer and the tortured at the behest of the torturer. As shown above, the inherent pressure at the 'coming together' is piled on by additional physical abuse and mental pressure during interrogation.

It is no wonder that from my practise at the criminal Bar, very rarely, if not hardly would you see the State attempt to adduce the accused's confession through his caution statement as part of the prosecution's case. This would be because very frequently the confession would have been obtained through illegal means during police detention and the State would not want to go through the hassle of having the confession challenged by the defence resulting in the lengthening of the trial.

Cases of deaths in police custody have been widely recorded and compiled in media reports, memorandums, NGOs' annual reports and case law reports. I will not repeat them here. Suffice to say, there is no denying that torture still takes place during police custody.

This is so because remand law weighs heavily in favour of the police and the supposed safeguards for the detainee are illusory. The weakness of the current legislation pertaining to remand of detainees are manifest as follows:

1. There is no clear, enforceable right for the detainee to see or to access his family or his counsel immediately upon his arrest. The courts have seen to that.

2. At the remand hearing, counsel for the detainee and/or the detainee are not entitled to have a copy of or to scrutinise or to examine the police investigation diary. The legislation has seen to that.

3. Without early access to the detainee and without sight of the police investigation diary, counsel's role at the remand hearing is nothing but an eyewash; merely to 'legitimise' the remand process.

4. Again, without early access and without sight of the police investigation diary, counsel would not be able to tell or make any complaint regarding physical abuse or mental torture of the detainee. Counsel would not be informed of the locations the detainee had been brought by the police.

5. Whilst the legislation does not oblige the presiding magistrate during the remand hearing to enquire into the health and welfare of the detainee as well as to order medical examination, the apathy of the courts have also contributed to the declining standards in the treatment of detainees.

5.1 The courts have seen their role as 'rubber-stampers' merely to process the police applications for futher remand. Usually, any complaints of ill-treatment or for medical treatment is met with the answer, respectively, that a police report be lodged or a request be made to the police for the same. But it is the same police force detaining the detainee which had inflicted the ill-treatment leading to the complaint!

5.2 Judicial scrutiny is of low quality and insufficient. Had the respective remand magistrates been more vigilant, the spate of deaths in police custody cited above could have been avoided. It could be that the sheer volume of remand applications have overwhelmed the remand courts but administrative inefficiency can never be an excuse to disregard a human's life. Judges should now go through human rights education and SUHAKAM can play a very important role in that.

5.3 Not many remand orders go up on appeal or in revision to the High Court for review. The few which have gone up have been found wanting - eg: lack of written reasons for further remand, no proper application of the magistrates' mind to the facts and law on remand and no proper investigation diary produced . The reason not many are appealed or revised is because by the time the hearing of the appeal or revision is fixed, the remand would have ended and the issue rendered academic.

6. There is nothing in the legislation prohibiting successive remand orders (also known as 'chain-smoking' or 'roadshow' orders). In other words, a detainee may be detained for 15 days at one police station and then released only to be arrested by another police station on another police report and this would go on consecutively. Many of the deaths in police custody cases reveal such orders being made in respect of the detention of the victims.

Internal Security Act, 1960

Section 73 of the Internal Security Act, 1960 allows the police to detain any person for up to 60 days. The police may without warrant arrest and detain any person firstly, for 24 hours; and subsequently, for more than 24 hours with the authority of a police officer of or above the rank of Inspector. The police may further detain the person for more than 48 hours with the authority of a police officer of or above the rank of Assistant Superintendent.

If the detainee is detained for more than 48 hours, he may not be detained for more than 30 days unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector-General or to a police officer designated by the Inspector-General in that behalf, who shall forthwith report the same to the Minister.

You will note that really, there is no independent body which is to authorise the continued detention of the detainee. The police arrest, the police detain and the police is to authorise further detention. One and the same. There is no 'safety valve'.

In all, the police may detain any person for a maximum period of 60 days. Thereafter, the detainee must be released or under normal circumstances, the Minister of Home Affairs will issue a detention order under section 8 of the Internal Security Act, 1960 allowing detention of that person for any period not exceeding 2 years. This may be renewed for any period not exceeding 2 years at the end of every 2 years. There is no fetter to this renewal. Issuance of a section 8 order by the Minister will see the detainee being placed from police lock-up (during the 60 days) to a serene camp at Kamunting.

Unlike the provisions of the Criminal Procedure Code, the Internal Security Act, 1960 is 'special law' enacted under Article 149 of the Federal Constitution. The police therefore need not produce the detainee before a magistrate during the 60 day period. There is thus no judicial monitoring during 60 days of police detention under the Internal Security Act, 1960 unlike during the remand applications after the first 24 hours of arrest and detention under the Criminal Procedure Code.

It gets worse. Under section 8B of the Internal Security Act, 1960, judicial review of any form, be it a writ of habeas corpus to free the detainee or any other application, suit or legal action challenging the Minister's order made under section 8 of the Internal Security Act, 1960 is completely barred save as to procedural questions (also known as the 'ouster clause'). The courts are precluded from examining and looking into the substance of the Minister's order - eg, whether there are sufficient, admissible facts which merit making of the order, whether the grounds substantiating the order really exists and are proved and whether the order was made in bad faith.

There can absolutely be no challenge except on procedural grounds. In this, the detainee whilst being denied his basic human right to a fair, free, open and public trial is also denied the bare minimum - judicial safeguards and scrutiny of his detention.

The Internal Security Act, 1960 is well-known for the wrong reasons. It denies the fundamental right to a free, fair, open and public trial. Abuse, inhuman, degrading treatment and torture of detainees are well-documented. Mental anguish and psychological abuse are frequent.

Most of the time, the arrests would happen late into the night, teams of police personnel will swamp the detainee's house, the detainee would be handcuffed and blindfolded, their families would not be told where they would be detained, the detainee himself would not know where he is and no one would be able to access the detainee until long after the arrest.

The most recent use of the Internal Security Act, 1960 was when scores of people were at different times in different batches arrested and detained by the police for allegedly being members of 'Kumpulan Militan Malaysia'. After being detained for the full 60 days, they are serving section 8 detention orders in Kamunting allegedly for being members of the now infamous organization known as 'Jemaah Islamiah'.

From numerous interviews with these detainees, they were constantly interrogated during the 60-day detention by different police teams using known police interrogation techniques and deception such as playing 'good-cop' and 'bad-cop', veiled threats against family members, inducement of early release in exchange for confessions and fictional betrayals of trust - telling the detainee that a friend of his in detention had 'leaked information' and 'confessed' thereby encouraging the detainee to do the same.

It was also a common feature that police detention during the 60 days would be with the aim of 'breaking down' the detainee mentally and psychologically to such an extent that by the end of the 60 days, the detainee would be so disorientated that he would be inclined to 'obey' his captors/torturers. Solitary confinement is reportedly a tool. If one is detained for 60 days without social interaction, without normal stimulation of intellect, family and friends and one's link to the outside world is only through one's captors/torturers, it would not be difficult to imagine a situation whereby the detainee becomes as it is 'bonded' or 'attached' to his captors/torturers. When interrogation continues, that 'bonding' or 'attachment' allows the captor/torturer to manipulate or twist statements or facts to suit the situation as against a helpless, mentally disfigured detainee. Statements would then be signed, confessions made. Many say they were tricked and forced into admitting and signing statements they did not make. This may not sound as horrific as beatings or physical torture but I would regard this as worse - a manipulation of one's emotions and mind.

I have also been told that a great deal of so-called evidence against the detainees brought forth by the police are manufactured to 'suit' the allegations of religious extremism and terrorism. Matters such as praying ever so often at a secluded mosque would be interpreted as holding meetings and pledging allegiance to the cause of setting up a Pan-Islamic state; listening to preachers from Indonesia would be interpreted similarly as above; going to nature hikes and camping would be interpreted to be military training.

The only 'crime' I can make out for these detainees is that they were found to have been too pious, too devout and too religious in the study and practice of Islam. But this certainly cannot be a crime - everyone is entitled the freedom to practice, profess and propogate his own religion. This is guaranteed by Article 11 of the Federal Constitution.

Interviews with these detainees also reveal that during their 2 year detention orders under section 8 of the Internal Security Act, 1960, there would be frequent mass lectures and classes which include preaching by officers of the State in an attempt to 'turn over' or 're-educate' the detainees in their religious beliefs and political thoughts. Those who do not attend the lectures or classes would be threatened that their detention orders will be extended and 'privileges' such as playing football would be denied.

Besides facing the 'ouster clause', the detainees and their families would be told by police officers not to take up any legal action or seek legal advice lest the detainees' detentions are extended. In fact, promises of early release are made to secure confidence in the detainees not to take up legal action.

Family access at Kamunting is restrictive. They would have to meet each other behind bars. Physical contact is minimal. Food for the detainees cannot be given except fruits. Then, whenever there are complaints regarding their conditions of detention made by the detainees directly to SUHAKAM or to us as their lawyers and which are forwarded to various NGOs, and these complaints come to light, family access at Kamunting would be even more restrictive. In effect, punishing the families of the detainees for them to place more pressure on the detainees. And remember, these detainees have not been found guilty by a court of law.

I could list the kinds of trauma faced by the current set of detainees in Kamunting but it would be too long. Suffice to say, whenever the detainees have complained about conditions of detention which need looking into, various families and NGOs have gone forward to SUHAKAM to make the necessary complaints. These complaints have been documented.

It would not be unfair if I sum up the discussion on this point in this way - detention under the Internal Security Act, 1960 is oppressive and constitutes torture as the torturer holds all the reins and controls the lives of the detainees. Whenever the detainee/tortured acts in a way, the captor/torturer would react to counteract in another way. What more when there is no certainty as to the length of time a detainee is to be detained. This fact is far worse than even punishment after a trial where there is a certainty as to the length of the sentence passed.

It must also be remembered that there were a few detainees in Kamunting who gave video link evidence during the trial in Indonesia of alleged Jemaah Islamiah leader, Abu Bakar Bashir. The Bar Council and various bodies denounced this for the position taken was that no reliable, credible or voluntary evidence could have been given by someone in detention against his will on matters against his personal self-interest. The same person being deprived of a right to a trial is being used as a witness to given evidence against another in the latter's trial.

You will note that after giving of such evidence, when we visited one of them - he expressed shock when he was told that he need not have given such evidence. The question is - who knows what coercion was put on these detainees when they gave such evidence. The other detainees who gave evidence refuse to meet with any lawyers so to date we have not been able to ascertain the truth of the matters.

Leaving this, the clearest indication that the State do not have sufficient evidence to prosecute the detainees now held for allegedly being a terrorist threat and that is why they are being housed under the Internal Security Act, 1960 came from our now Prime Minister, Datuk Seri Abdullah Ahmad Badawi, who on 23 September 2003, he said :

'Investigations are still on-going not only in Malaysia but regionally to determine their connections with the terrorist network. ... We are not detaining them without reasons. We will continue our investigations and all information obtained are filed and recorded. We decide later whether to charge them in court or not.'

This cannot be right for the section 8 detention orders are to be supported by grounds of detention and facts justifying those grounds for detention. One is either part of a terrorist network or one is not. If one is not or if there are no grounds and facts to evidence it, a suspicion is not sufficient to prosecute detain or incarcerate a person. That person must be released.

Detention under section 8 of the Internal Security Act, 1960 cannot and is not to be used for investigation or investigatory purposes. That is a mala fide utilisation of the legislation.

Role of judges in an advanced criminal justice system

The participants in a criminal justice system include the police, the prosecutor, the defence counsel and the judge. Law is only enforceable to the extent judges interpret it. The Criminal Procedure Code and the Internal Security Act, 1960 paves the way for torture by the State within an institutionalised and legalised framework to take place. The only safeguard is the judiciary. When the judiciary fails to check or properly scrutinise the use of the said legislation, there is really little hope for minimising the opportunities for torture. Of course, I am not forgetting the work NGOs and independent bodies play within the non-legal framework in the fight against torture - documentation, leading public opinion/outcry and creating public awareness.

As put forth above, a criminal justice system is based on the human right principle of the 'right to trial'. This system, being adjudicated by a judge, is therefore a human rights model and the judge is a 'human rights defender'.

The criminal justice system is part of a human rights initiative. The judiciary must therefore in this 21st century transform itself drastically and view itself as a human rights defender. Judges must understand fully their constitutional role in upholding rights of mankind. Just as in the 21st century we become more technologically savvy and advanced in new areas, human rights should not be viewed with disdain or fear or a dismissive attitude left for the West only. It is for all humans; and human rights is not only for the accused, it is also for the victim.

If we do not catch up with the times, we would be a, how would you say it, '21st century country with 19th century mentality'. Human rights is here to say whatever you might wish to call it. The ever expanding markets and globalisation will force us to re-think our strategy for the future and how we interact with other countries with a far advanced human rights record. It will only be good if we acknowledge it now.

As a human rights defender, the function of the court is to protect each human being within its jurisdiction and province. The function of the court is not to apply rules or legal norms or law mechanically. Rules, legal norms or law are merely there as a guide to 'best practices'. They are not the end all and be all, they should not be. The judiciary cannot be too legalistic and the legislature cannot play god. The judiciary must decide with a conscience, the judge must be one with a conscience. If the law is bad, change it, interpret it differently, make law - so long as it is an act of human rights defending. With respect, and in this area, history shows that the judiciary in Malaysia lacks courage, innovation, invention and is ultra-conservative. Everytime the term 'human rights' is used it sounds to the judiciary like an 'expletive' or 'bad word'. It is not often you see the term 'human rights' used in law reports.

For example, it may have been the case that the law says Anwar Ibrahim's allegations of political conspiracy would be irrelevant in deciding the charge against him. Nevertheless, as a human rights defender, when a human being faced against the might of the State makes a credible and not spurious allegations of conspiracy - the court ought to look into that - for it affects the credibility of the State's enforcement agencies such as whether the police investigation was tainted, whether the allegations were trumped up, whether evidence was fabricated and whether witnesses were influenced.

For example, evidence of a certain crime such as a confession beaten out of the accused should be held to be tainted and inadmissible in court - 'fruit of the poisonous tree' argument. Any evidence of torture is antithetical to and seriously damages the integrity of the right to trial and any trial. However, the law in Malaysia now is that such evidence would still be admissible.

And that is why also because the criminal justice system is a human rights system, there must be possessed of honest, fair and independent prosecutors as well as judges and defence counsel. People who will own up to say they are wrong when they are wrong. We all know that many times, no law will find out the real truth and the truth will only be out when conscience makes itself known.

I am attempting to expound an idea that the criminal justice system need not be an adversarial 'us' v 'them' battle but an inquisitorial 'us together with them' concept for both prosecutor and defence who are seeking truth and justice. This concept may be the way forward in enhancing human rights in this country. It is and should be a system of conscience.

Terrorism, torture and the future

It is clear that torture is unreliable as a means of eliciting truth. It is also clear that torture is to be condemned because it is revolting and inhumane. However, actions have been taken which appear to convey the message that torture may be permissible for crimes involving terrorism.

After 9/11, America detained over 1,200 non-citizens primarily from Middle Eastern, South Asian and North African countries. They used immigration charges as a pretext to detain 766 non-citizens while investigating possible links to terrorism. Their identities are unknown and the majority of them had their immigration hearings in secret. Many of them have no links with terrorists or were innocent persons caught unawares at the wrong place at the wrong time.

Abuse is rife, torture common. Reports indicate that Taliban and Al-Qaeda detainees held at Guantanamo Bay are confined 'in small cages with chain-link sides, concrete floors and metal roofs'. 'The prisoners were held initially in wire cages then transferred to tiny isolation cells, where they are confiend, except for two short shower and exercise sessions a week. Detainees have been subject to intense interrogation, including the use of psychological stress techniques, which are classified under international law as torture. Only a handful of the more than 600 men in Guantanamo Bay have been released, even though the war in Afghanistan is over.'

We must be careful with the arguments made as to the use of torture for terrorism. America would say that terrorism is a special type of crime requiring special methods for dealing with it. Malaysia would say the same, hence the use of the Internal Security Act, 1960. But this is problematic as it runs into the 'slippery slope argument'. Without a clear, accepted universal definition of terrorism and countries tending to use a 'broad-brush approach' when attempting to define terrorism, who knows, tomorrow it might be you in detention, tortured on allegations of being a terrorist or being involved in terrorist activities.

It is precisely because terrorism is a special type of crime, all the more, we should be more vigilant when dealing with it to ensure human rights are protected. The pretext for investigation into alleged terrorist activities defined broadly would be a carte blanche for human rights abuses.

The new Bill presented in Parliament recently to amend the Penal Code of Malaysia proposes definitions of 'terrorist' and 'terrorist act' as follows:

"terrorist' means any person who--

(a) commits, or attempts to commit any terrorist act; or

(b) participates in or facilitates the commission of any terrorist act, ...

(2) For the purposes of this Chapter, 'terrorist act' means an act or threat of action within or beyond Malaysia that—

(a) involves serious bodily injury to a person;

(b) involves serious damage to property;

(c) endangers a person's life;

(d) creates a serious risk to the health or the safety of the public or a section of the public;

(e) involves the use of firearms, explosives or other lethal devices;

(f) involves releasing into the environment or any part of the environment or distributing or exposing the public or any part of the public to--

(i) any dangerous, hazardous, radioactive or harmful substance;
(ii) any toxic chemical; or
(iii) any microbial or other biological agent or toxin;

(g) is designed or intended to disrupt or seriously interfere with, any computer system or the provision of any services' directly related to communications infrastructure, banking or financial services, utilities, transportation or other essential infrastructure;

(h) is designed or intended to disrupt, or seriously interfere with, the provision of essential emergency services such as police, civil defence or medical services;

(i) involves prejudice to national security or public safety; or

(j) involves any combination of any of the acts specified in paragraphs (a) to (i), where the act or threat is intended or may reasonably be regarded as being intended to--

(aa) intimidate the public or a section of the public; or

(bb) influence or compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization to do or refrain from doing any act,

and includes any act or omission constituting an offence under the Aviation Offences Act 1984 [Act 307].

These definitions are just too wide. No consultation was had with the Bar Council or NGOs on this and the government appears to want to rush this through. There are enough legislated crimes in the Penal Code already which cater for terrorist activities: sections 121 - 130A of the Penal Code provide offences and punishment for offences of waging war against the State and the King. These are sufficient and adequately limited in scope. And does it mean that when the government passes the new legislation, all the detainees in Kamunting will be charged under the new law?

Numerous papers have been presented as to how investigation into and curtailment of terrorism may and should be compatible with human rights and how in pursuing the former, it cannot overshadow or disregard the latter.

As it is now, do we have adequate legislation to combat terrorism? The short answer is yes. Under the Criminal Procedure Code - at any one time, a person may be detained for up to 15 days. Under the Internal Security Act, 1960 - a person may be detained firstly for 60 days then 2 years. These time frames provide opportunites for torture as documented. The judiciary must keep up with the times to ensure these legislations do not infringe human rights; rather, to promote them although I am not able to see how anyone can justify the Internal Security Act, 1960 as a legislation founded on human rights principles.

The new legislations said to be draconian introduced in America and United Kingdom to combat terrorism do not match up to the severity of the Internal Security Act, 1960. Under America's Patriot Act, the powers introduced applies to foreign aliens (suspected of terrorist activities) only whereby the person must be charged no later than 7 days after he is first detained. If he is not charged, he must be released. If however the release of the person will threaten the national security of America and removal of the person from America is unlikely in the forseeable future, he may be detained for up to 6 months only. Habeas corpus and judicial review applications are available to the person detained. Under the United Kingdom's Terrorism Act, 2000, a person detained (suspected of terrorist activities) must be released no later than 48 hours after his arrest. Reviews of the person's detention must be done periodically by a review officer at intervals of not more than 12 hours. If the person needs to be detained for more than 48 hours, the police must obtain from the courts a warrant of further detention which shall end not later than 7 days beginning with the time of the person's arrest. Further, under the United Kingdom's Terrorism, Crime and Security Act, 2001 which provides for powers of deportation to deal with 'suspected international terrorists', those powers automatically expire at the end of the period of 15 months beginning with the day on which the said legislation was passed.

Even in Indonesia, Abu Bakar Bashir has been charged for allegedly being the leader of Jemmah Islamiah but his trial collapsed on this count. Some of those involved in the Bali bombings have been convicted whilst there are numerous awaiting trial. In the United Kingdom, Lotfi Raissi, an Algerian, was arrested under the new Terrorism Act, 2000 but was subsequently released after 5 months after the district judge ruled that there was no evidence to substantiate his involvement in terrorism. When will our alleged terrorists in Kamunting be charged or released? At the moment, all we can say and presume is that there is no evidence against them which will stand up within the criminal justice system.

Published in Infoline October/November 2003

Comments (0)

Subscribe to this comment's feed