Contributed by Joanne Chua Tsu Fae and K Shanmuga
The final Law & Society session of the day saw a particularly distinguished panel of speakers; Bret Walker, SC, Independent National Security Legislation Monitor, Australia and Phil Robertson, Deputy Director, Human Rights Watch, Asian Division, Bangkok. The moderator, Andrew Khoo Chin Hock, Partner, Andrew Khoo & Daniel Lo informed the audience that a third speaker from the Royal Malaysia Police had also been invited but declined to attend as he stated that any discussion on this topic might jeopardise national security.
Very aptly, Bret Walker started by asking what was on the minds of many in the audience: “How on earth could Australia’s experience in combating terrorism have any relevance to Malaysia?” Like Malaysia and other Commonwealth countries, Australia shares the common law tradition, which is premised on a generalised sense of fairplay and decent dealing.
A feature unique to the counter-terrorism regime in Australia is that
preventive detention is distinguished sharply from that used in common
detention for the purpose of interrogation or investigation of suspects.
Interrogation cannot be conducted. Rather, questioning may only be
carried out by the Australian Security Intelligence Organisation and
only under a special questioning warrant, certified by a minister.
Preventive detention, he explains, is a form of detention that does not culminate in a criminal prosecution (like that provided for under Malaysia’s infamous ISA which Bret notes had a noteworthy career). It is effectively punishment but not in the form of punishment. Preventive detention results in suspicions rather than proof being the test of depriving someone of his or her liberty.
“Why preventive detention at all?” Bret poses the golden question. On sociological grounds, he questions that given naughty boys turned out to later be delinquent juveniles, why do we not then just incarcerate young children who may potentially offend in the future? He points out that this idea is revolting and would not be considered by any serious society devoted to the rule of law.
The proposition, which follows the above, is that preventive detention is specific to terrorism and not ordinary crime. Bret postulates that this is the wrong approach to take as you then make terrorism so special that you add to what is already an illicit thrill or glamour. Glamourising terrorism runs counter to the notion of treating it as a crime.
The second speaker, Phil Robertson was more critical of the role currently played by Australia in relation to other Asian countries. He emphasises that when talking about counter-terrorism, we cannot divorce it from human rights issues or it will result in dysfunctional policies.
At the heart of it all, there are issues of definition. There is more often than not an overly broad definition of terrorism that includes political dissent. This has overarching consequences as it then leads to the banning of such groups or societies, restriction of funding to those groups, limitations of expression, the expansion of police powers that undermine basic human rights and preventive detention mechanisms.
In Malaysia, the Prime Minister announced last September that the infamous ISA would be repealed and assured that there would be balance between national security and personal freedom. The Prime Minister promised would take into account fundamental human rights and freedom. However,
Phil lamented that in considering the Security Offences (Special Measures) 2012 Act (SOSMA) which replaced the infamous ISA, when you start from zero, even stumble steps would appear as progress despite it still being far from international human rights standards and allowing politics to encroach into issues of national security.
“Bersih? Lynas – are these threats to national security?”
SOSMA also led to amendments to the Penal Code, and one of the concerns is the offence of “activity detrimental to parliamentary democracy”. Phil said that SOSMA does away with presumptions of innocence, and pushes the burden of proof to the Defendant. Speaking of the current actions against SUARAM, that organisation is not protected under SOSMA, as it is registered with the Companies Commission and not the Registrar of Societies.
He pointed out how worrying this was in light of the fact that numerous Malaysian NGOs are not registered under the Societies Act 1966, even more so taking into account the difficulties for these NGOs getting registered. Evidentially, prosecutors can now utilize evidence without disclosing sources and that raises serious human rights problems.
In this regard, Phil commented that he had not seen Australia take any steps to pressure Malaysia into complying with international human rights standards?
Further, Densus 88 in Indonesia - which had received much assistance, support and training from Australia - has been documented as engaging in torture. In particular, in June 2007, 22 political activists in Maluku province were arrested by Densus 88 for unfurling the Maluku independence flag in front of Indonesia’s President. It was later revealed that the detained political activists were stepped and trampled and at the same time, beaten with shoes, bare hands and iron bars for 11 days in a police station.
Phil said Australia must answer what it is really doing to bring compliance to the countries they are providing training and support to? Are they indirectly contributing to the abuse committed by these countries? These countries cannot be rewarded for participating in infringing human rights. End of the day, what is proclaimed must be matched with actions on the ground.
“Why preventive detention at all?” Bret poses the golden question. On sociological grounds, he questions that given naughty boys turned out to later be delinquent juveniles, why do we not then just incarcerate young children who may potentially offend in the future? He points out that this idea is revolting and would not be considered by any serious society devoted to the rule of law.
The proposition, which follows the above, is that preventive detention is specific to terrorism and not ordinary crime. Bret postulates that this is the wrong approach to take as you then make terrorism so special that you add to what is already an illicit thrill or glamour. Glamourising terrorism runs counter to the notion of treating it as a crime.
The second speaker, Phil Robertson was more critical of the role currently played by Australia in relation to other Asian countries. He emphasises that when talking about counter-terrorism, we cannot divorce it from human rights issues or it will result in dysfunctional policies.
At the heart of it all, there are issues of definition. There is more often than not an overly broad definition of terrorism that includes political dissent. This has overarching consequences as it then leads to the banning of such groups or societies, restriction of funding to those groups, limitations of expression, the expansion of police powers that undermine basic human rights and preventive detention mechanisms.
In Malaysia, the Prime Minister announced last September that the infamous ISA would be repealed and assured that there would be balance between national security and personal freedom. The Prime Minister promised would take into account fundamental human rights and freedom. However,
Phil lamented that in considering the Security Offences (Special Measures) 2012 Act (SOSMA) which replaced the infamous ISA, when you start from zero, even stumble steps would appear as progress despite it still being far from international human rights standards and allowing politics to encroach into issues of national security.
“Bersih? Lynas – are these threats to national security?”
SOSMA also led to amendments to the Penal Code, and one of the concerns is the offence of “activity detrimental to parliamentary democracy”. Phil said that SOSMA does away with presumptions of innocence, and pushes the burden of proof to the Defendant. Speaking of the current actions against SUARAM, that organisation is not protected under SOSMA, as it is registered with the Companies Commission and not the Registrar of Societies.
He pointed out how worrying this was in light of the fact that numerous Malaysian NGOs are not registered under the Societies Act 1966, even more so taking into account the difficulties for these NGOs getting registered. Evidentially, prosecutors can now utilize evidence without disclosing sources and that raises serious human rights problems.
In this regard, Phil commented that he had not seen Australia take any steps to pressure Malaysia into complying with international human rights standards?
Further, Densus 88 in Indonesia - which had received much assistance, support and training from Australia - has been documented as engaging in torture. In particular, in June 2007, 22 political activists in Maluku province were arrested by Densus 88 for unfurling the Maluku independence flag in front of Indonesia’s President. It was later revealed that the detained political activists were stepped and trampled and at the same time, beaten with shoes, bare hands and iron bars for 11 days in a police station.
Phil said Australia must answer what it is really doing to bring compliance to the countries they are providing training and support to? Are they indirectly contributing to the abuse committed by these countries? These countries cannot be rewarded for participating in infringing human rights. End of the day, what is proclaimed must be matched with actions on the ground.