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 The Bar Council views with concern the recent report (New Straits Times, 4 July 2003) that testimonies were given on 3 July 2003 by four ISA detainees from Bukit Aman byway of video-conferencing in the ongoing trial of Abu Bakar Bashir in Indonesia, in relation to terrorist and militant activities that have been alleged against the accused.

The Bar Council is in full support of national and international efforts in combating terrorism. However, it is equally important that steps taken in that respect must not be in disregard of legal and human rights standards.

The Bar Council re-iterates that the ISA is unconstitutional and oppressive, and has no place in a free and civil society. Persons held under the ISA without trial are wrongfully detained, and are at the mercy and control of their captors. Hence, confessions and adverse testimonies by detainees under such conditions must be viewed with extreme caution, since they can be easily tainted by the possibility of duress, coercion or inducement when relevant safeguards are absent under conditions of administrative detention without trial. Such testimonies cannot be accepted at face value without independent verification or corroboration procured under conditions of free will; even more so if the right of cross examination is denied.

This danger is a real and not an imaginary one. In at least two reported Singapore cases, namely Chng Suan Tze v Minister of Home Affairs [1989] 1 MLJ 69 and Teo Soh Lung v Minister of Home Affairs [1990] 2 MLJ 129, complaints of duress were later made by ISA detainees that they had been coerced into making confessions by way of televised interview while in detention. Hence, it is neither safe nor fair for any court to rely on such testimonies. Instead, the Malaysian government should immediately and unconditionally release the said detainees, who will thereafter be in the position to give testimonies under normal conditions of free will.

It is also a stark contradiction that the authorities would consider it appropriate for the detainees to give evidence in the trial of another, but at the same time deprive these same persons the right to their own trial and hence the right to give evidence in their own defence.

The many calls made by the Bar Council in the past for the release of all persons detained without trial must be repeated here; and must be continuously made until the last of the detainees is freed.

Dated this 8th day of July 2003.

Haji Kuthubul Zaman Bukhari
Chairman
Bar Council