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The Good, Bad and Ugly of detention without trial in Malaysia

Contributed by Lai Chee Hoe

Thursday, 01 November 2007 06:55am

KUALA LUMPUR, Wed: The 3 speakers for this session are none other than the prominent criminal experts in Malaysia ie: Dato Shafie Abdullah, Dato V. Sithambaram and N. Sivanathan.

Shafie started the ball rolling by criticising our Malaysian criminal law system as “archaic” as no serious effort was taken to change the law, until recently where the Criminal Procedure Code was amended.

He also observed and commented that the general perception of the public is that criminal law does not bring any effect on them is absolutely wrong. He cited several police abuse cases, inter alia, which the accused persons’ visitation rights were rejected during detention and this is severely wrong and could happen to any one of us.

Throughout his paper, he spoke on the Article 5(3) of the Federal Constitution – “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

He went on to cite several cases from different jurisdictions in relation to the right to have access to a lawyer during detention. He said notwithstanding that we have a written constitution governing the right of an accused to be allowed to consult, our Malaysian courts are often reluctant to accept that right which results in a very narrow interpretation of the Article 5(3).

The 2nd speaker, Sithambaran explained that the aim of the Criminal Procedure can be summarised as the pursuit of truth in the criminal process. He went on to say that the primary aim of the criminal process is to determine the guilt or innocence of the alleged offenders.

In the meantime, he reminded the participants that a sound system of criminal procedure must take into account 3 concerns and they are :

(a) pursuit of truth;

(b) respect for human dignity; and

(c) protection against the risk of convicting innocent persons.

He concluded that the prosecution’s disclosure plays an integral part in the overall development and enhancement of the criminal justice system.

The last speaker, Sivanathan touched on the issue of preventive legislations. He was quick in pointing out that the change in the post 1998 where Parliament has enacted what is essentially an ouster clause which effectively bars any argument save for breach of procedural requirements. He aired his disappointment towards the post 1998 position and informed the participants that the net effect of that change is the detention order made by the Minister now may only be challenged on grounds of non-compliance with the procedural requirement, and nothing else.

He further cited the recent High Court case in Kuala Lumpur which a detainee was awarded a sum of RM2.5 million after being detained for 57 days under the ISA and he highlighted that the Emergency Ordinance has become an abusive tool.

He went on to reveal that the biggest let down from the court was the alarming development recently where the Federal Court in Mohamad Faisal Haris v Deputy Minister of Home Affairs Malaysia & Ors decided that once a detention order has been made, the writ of habeas corpus must be directed only against that order even if the earlier arrest and detention are irregular.

He concluded his paper in criticising the advisory board as the board does not provide a constitutional check and balance but acts as a mere rubber stamp.