Resolution Regarding Kelantan Orang Asli Land and Resource Claims, and Indigenous Peoples’ Rights
WHEREAS the Malaysian Bar:
(1) Recalling the Malaysian Bar resolution on indigenous peoples’ rights adopted at the 63 rd Annual General Meeting of the Malaysian Bar held on 14 March 2009 that, inter alia, called upon the Federal and State Governments, the Department of Orang Asli Affairs, all public and private enterprises, and individuals, to respect the rights of indigenous peoples as enshrined in the United Nations Declaration on the Rights of Indigenous Peoples and, in particular, called upon the Federal and State Governments to effectively recognise and protect the rights of the Orang Asli to their ancestral lands and resources (“2009 AGM Resolution”);
(2) Affirming that all Orang Asli are entitled to the full spectrum of fundamental liberties available to Malaysian citizens, and indeed enjoy a special position in respect of their “protection, well–being or advancement” under Article 8(5)(c) of the Federal Constitution;
(3) Affirming that in the cases of Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors  2 MLJ 158, Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  6 MLJ 289, Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong)  2 MLJ 677, and Ketua Pengarah Jabatan Hal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal  6 MLJ 527, the Malaysian superior courts have consistently affirmed the continued enforceability of Orang Asli customary land and resource rights without the need for formal recognition by the legislature and executive through written laws;
(4) Reaffirming that the Federal and State Governments owe a fiduciary duty to protect Orang Asli customary land rights and not act in a manner inconsistent with such rights, as decided by the Court of Appeal in the case of Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors  6 MLJ 289;
(5) Affirming that such pronouncements form part of the substantive laws or the common law of Malaysia;
(6) Taking note that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the Universal Declaration of Human Rights, and has voted, at both the United Nations Human Rights Council and the United Nations General Assembly, in favour of adopting the United Nations Declaration on the Rights of Indigenous Peoples that, inter alia, reiterates the right of indigenous peoples to self–determination;
(7) Noting that the Federal Government had made a decision in June 2015 to implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia, for the recognition of Orang Asli and Sabah and Sarawak native land and resource areas;
(8) Noting with regret that there has been no effective Federal and/or State legislative or executive action to recognise and protect Orang Asli customary land and resource rights since the 2009 AGM Resolution;
(9) Deeply concerned with recent developments in Gua Musang, Kelantan, where the Orang Asli have been subjected to numerous and recurring incidents of arrests and detentions, damage to property and harassment by or through the acquiescence of State enforcement agencies, for merely asserting their customary rights to their lands and resources through the erection of blockades to prevent logging activities from being carried out on these lands;
(10) Deeply disturbed that the affected Orang Asli have faced obstacles in securing unimpeded access to legal counsel and humanitarian aid during the course of this conflict;
(11) Noting with concern that environmental degradation, whether from logging activities, deforestation or other depletion of biodiversity, could directly impact upon the capacity of indigenous peoples to sustain their livelihoods and maintain their cultures and intangible heritage;
(12) Noting with regret that the Kelantan State Government has not taken any proactive steps, or sufficient proactive steps, to resolve this impasse by demarcating and protecting those areas inhabited by Orang Asli, as required by the cumulative weight of Malaysian jurisprudence on this issue, but instead has purported to legitimise its questionable decisions in respect of the lands by conveniently interpreting the law so as to justify its actions;
(13) Noting with regret that the Department of Orang Asli Development has, with regard to the Kelantan Orang Asli conflict, once again failed to perform a proactive role, or has abdicated its functions, to secure the effective defence and protection of the interests of the Orang Asli and their overall well–being as indigenous peoples;
(14) Recognising that this conflict is inextricably linked to the overall and continued failure of the Federal and State Legislatures and Executives to prioritise the effective legal recognition and protection of Orang Asli–inhabited lands and resources; and
(15) Recognising that the Orang Asli of Peninsular Malaysia and the natives of Sabah and Sarawak continue to face numerous challenges in defending their customary lands and resources despite their privileged position under the Federal Constitution and international human rights norms and documents;
THEREFORE, it is hereby resolved that the Malaysian Bar:
(A) Strongly calls upon the Kelantan State Government to forthwith impose a moratorium on the creation of any land and/or resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli or native customary areas, pending the resolution of the customary land rights and resource claims of the affected Orang Asli or native communities;
(B) Strongly calls for the resolution of such rights and claims in a manner that gives full effect to the legal pronouncements of the Malaysian superior courts recognising Orang Asli customary rights to their lands, territories and resources and, more broadly, the Malaysian Government’s June 2015 decision to implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia;
(C) Strongly calls all enforcement agencies engaged with the Orang Asli to act with honesty and integrity and to uphold the rule of law in carrying out their various duties and responsibilities, at all times respecting and having due and proper regard to the legal position of the Orang Asli and their lands as determined by the Malaysian superior courts;
(D) Strongly calls upon the Federal and State Governments to immediately implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia, in respect of Orang Asli and the natives of Sabah and Sarawak and, as an
interim measure, to impose an immediate moratorium on the creation of any land and/or resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli or native customary areas, pending the resolution of the customary land rights and resource claims of the affected Orang Asli or native communities;
(E) Strongly calls upon the Federal and State Governments and the Department of Orang Asli Development, in prior consultation and cooperation with indigenous peoples, to take any and all appropriate measures, including legislative measures, to achieve the full spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples; and
(F) Mandates the Bar Council to take, and continue to take, all appropriate action that is deemed necessary to empower indigenous peoples and to safeguard, promote and protect their rights under Malaysian law and under international laws and norms.
The motion was proposed by Steven Thiru (Chairman, Bar Council), on behalf of the Bar Council.
Resolution Regarding Deaths in Police Custody and Police Brutality
WHEREAS the Malaysian Bar:
(1) Recalling the Malaysian Bar resolution passed at its 53rd Annual General Meeting on 20 Mar 1999 on police shootings and custodial violence, among others, calling for the holding of inquiries into death in police custody cases and prosecution of the relevant police personnel;
(2) Recalling the Malaysian Bar resolution passed at its 55th Annual General Meeting on 17 July 2001 on unlawful shooting to death of individuals by police personnel, police brutality, and deaths in police custody;
(3) Recalling the Malaysian Bar resolution passed at its 57th Annual General Meeting on 22 Mar 2003, among others, condemning the alarming statistics on deaths in police custody and shooting to death by police personnel, and calling for transparency and accountability in each and every case;
(4) Recalling the Malaysian Bar resolution passed at its 58th Annual General Meeting on 27 Mar 2004 calling for the Inspector General of Police of Malaysia and the Attorney General to investigate and institute the appropriate criminal proceedings against the relevant police personnel and to commence immediate inquiry into mysterious deaths in police custody and shooting to death by police personnel;
(5) Recalling the Malaysian Bar resolution passed at its 61st Annual General Meeting on 17 Mar 2007 calling for the urgent formation of an Independent Police Complaints and Misconduct Commission (“IPCMC”) and for the Attorney General to prosecute without fear or favour all or any criminal abuse of police powers;
(6) Recalling the Malaysian Bar resolution passed at its 65th Annual General Meeting on 12 Mar 2011, among others, on inquiries into death in police custody cases;
(7) Noting with deep regret that the resolutions as recalled above have largely been ignored or unheeded, as deaths in police custody under questionable circumstances, unlawful shooting to death by police personnel, and police brutality while in the custody of the police, continue to occur;
(8) Whereas the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia Malaysia, “SUHAKAM”) has reported that from the years 2000 to 2014, 242 deaths in police custody were recorded, and Suara Rakyat Malaysia (“SUARAM”) has recorded 11 deaths in police custody for the year 2015, and two deaths in police custody for the year 2016;
(9) Whereas to date in 2017, at least three deaths in police custody have been reported, which are as follows:
(9.1) Soh Kai Chiok, aged 49:
(a) The deceased (Soh Kai Chiok) was arrested and detained at Bera District Police Headquarters (“IPD”) in Pahang. He was suspected of stealing bananas and was being investigated under Section 379 of the Penal Code.(b) It has been reported that Soh Kai Chiok was arrested by the owner of the banana plantation and his four employees, and was handed over to the police with injuries on his left arm, left leg and face. He was taken to the Triang Health Clinic and was referred to the Sultan Haji Ahmad Shah Hospital in Temerloh.(c) According to the Bera district police chief, the guard at the police headquarters men’s lock–up found Soh Kai Chiok unconscious. Soh Kai Chiok was pronounced dead at 12:15 am on 18 Jan 2017. He also said that post–mortem results showed ulcers the size of a 50–sen coin were found in Soh’s intestines.
(9.2) S Balamurugan s/o M Suppiah, aged 44:
(a) The deceased (S Balamurugan s/o M Suppiah) was arrested on 6 Feb 2017.(b) On 7 Feb 2017, Balamurugan was brought before a Magistrate for a remand order. According to Balamurugan’s lawyer, at his remand hearing, Balamurugan was weak and unable to walk, had bruises on his face, was bleeding from his nose and mouth, and vomited blood.(c) Upon observing Balamurugan’s condition, the presiding Magistrate queried the Investigating Officer but the Investigating Officer did not reply. The presiding Magistrate then rejected the remand application and instructed the Investigating Officer to take Balamurugan to the hospital for treatment immediately.(d) Balamurugan was neither released nor brought to the hospital for medical treatment.(e) On 8 Feb 2017, Balamurugan was found dead at the North Klang Police Headquarters.(f) The first autopsy carried out at the Klang Hospital had reportedly indicated that Balamurugan had died of “heart problems”. However, the results of the second post–mortem conducted by Hospital Kuala Lumpur and released on 18 Feb 2017 stated that the cause of death while Balamurugan was in police custody was “coronary artery disease with multiple blunt force injuries”.(g) On 22 Feb 2017, the Inspector General of Police Tan Sri Khalid Abu Bakar said that police have started investigations under Section 345 of the Penal Code (wrongful confinement) against the Investigating Officer for failing to abide by a court order to release the deceased. However, there has been no news since then.(h) On 9 Feb 2017, the Enforcement Agency Integrity Commission (“EAIC”) stated that it would commence investigation into the death of Balamurugan immediately. On 28 Feb 2017, the EAIC stated that it had taken 47 witness statements.(i) Two teenagers, both aged 16, who had been arrested together with Balamurugan and who had witnessed Balamurugan being assaulted, have, according to their lawyer, been beaten up and detained in an adult lock–up instead of being kept in a separate facility.
(9.3) Thanaseelan Muniandy, aged 43:
(a) The deceased (Thanaseelan Muniandy) was arrested in Bukit Beruntung on 21 Feb 2017 for an alleged burglary.(b) Thanaseelan was under a court remand from 22 Feb 2017 to 25 Feb 2017 at the Bukit Sentosa Police Station in the Hulu Selangor District. He was found unconscious in his cell at 1:50 am on 25 Feb 2017. An ambulance was called but Thanaseelan was pronounced dead at the scene by medical personnel.(c) According to Hulu Selangor Police Chief Superintendent R Supramaniam, Thanaseelan had been complaining of stomach pains, and had been brought to the Kuala Kubu Baru Hospital for treatment on 24 Feb 2017. The doctors gave him some medicine and the police brought him back to Bukit Sentosa Police Station.(d) Subsequent inquiries with the hospital have disclosed that Thanaseelan was not warded on 24 Feb 2017, but the outpatient department could not confirm if he was brought in for treatment. Investigations are ongoing as to why he was sent back to police custody without adequate diagnosis and treatment.(e) The pathologist who prepared the post–mortem report has said that preliminary findings showed that Thanaseelan had died from “blood poisoning from suppurative peritonitis due to a perforated gastric ulcer”, and that Thanaseelan would have suffered acute pain as there was so much pus in his stomach. Thanaseelan had a history of chronic gastritis.(f) Thanaseelan’s wife and family members have confirmed that despite Thanaseelan being pronounced dead at 1:50 am on 25 Feb 2017, the police only informed them approximately seven hours later. The distraught family members also claimed that they were never informed of the arrest;
(10) Whereas Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of his life and personal liberty save in accordance with the law;
(11) Whereas Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law;
(12) Taking note that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the Universal Declaration of Human Rights, which sets out, among others, that every human being has the inherent right to life and dignity;
(13) Noting with regret that the Government of Malaysia has yet to establish the IPCMC, as recommended by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in its report in 2005;
(14) Taking note that by the time decisions are made to hold public inquiries or inquests, the trail of evidence relating to the circumstances of deaths in police custody or police brutality could easily have been lost due to concealment, fabrication or destruction of evidence, as borne out by the recent findings of the EAIC in the death of N Dharmendran while in police custody, and taking further note that the IPCMC provides an effective mechanism to intervene into any attempts or afterthoughts to conceal and destroy evidence almost immediately after any death in custody;
(15) Taking note that the many recommendations by SUHAKAM and EAIC to address deaths in police custody and police brutality have fallen on deaf ears, and enforcement of these recommendations remains weak and lacks political will;
(16) Noting with regret that Malaysia has yet to ratify the United Nations Convention against Torture, which would, among others, ensure that law enforcement agencies are duty–bound to protect people against torture or any forms of ill–treatment, by providing the mechanism to prohibit, prevent and punish acts of torture and ill–treatment, as well as the means of redress for victims; and
(17) Deeply disturbed that the incidents of questionable deaths in police custody, unlawful shooting to death by police personnel, and police brutality while in the custody of the police have significantly shaken public trust and confidence in the police force to uphold law and order in this country, and reflect that the police force has failed to portray itself, through its actions or inactions, as an accountable, transparent, disciplined and responsible police force;
THEREFORE, it is hereby resolved that the Malaysian Bar:
(A) Is gravely concerned, disapproves and condemns the continuing occurrence of deaths in police custody, and police brutality while in the custody of the police;
(B) Is deeply disturbed by the inaction or failure on the part of the Inspector General of Police of Malaysia and the Public Prosecutor, respectively, in commencing investigation and instituting criminal prosecution against the police personnel connected with deaths in police custody and police brutality, in all but a handful of the reported cases;
(C) Calls upon the Government of Malaysia to respect, promote and protect the rights of persons under the Federal Constitution and international human rights laws and norms;
(D) Calls upon the Royal Malaysia Police to abide by the principles of justice, good governance and the rule of law, and to respect, promote and protect the human rights of people in Malaysia;
(E) Calls upon the Government of Malaysia to urgently set up the IPCMC without any more delay;
(F) Calls upon the Government of Malaysia to ratify the United Nations Convention against Torture, and thereafter take steps for legal, policy and institutional reform in adherence to the same; and
(G) Mandates the Bar Council to take and continue all appropriate and necessary action to urge the Government of Malaysia to establish the IPCMC.
The motion was proposed by Steven Thiru (Chairman, Bar Council), on behalf of the Bar Council.
Resolution for the Prosecution of Police Officers Who Killed and/or Cover Up Crimes of Fellow Police in Torture and Death in Custody Cases
(1) Deaths in police custody continue to happen in Malaysia. There have been three deaths in police custody in 2017, namely:
(a) Jan 18 — Soh Kai Chiok at Triang police station in Bera District, Pahang;(b) Feb 7 — Balamurugan Suppiah at North Klang police headquarters; and(c) Feb 25 — Thanaseelan Muniandy at Bukit Sentosa police station in Hulu Selangor District.
(2) The Enforcement Agency Integrity Commission (“EAIC”) has completed inquiries for at least three deaths in custody and, in two, it found the police liable for the deaths. It also found that there were police officers who had lied and even made false reports and entries into diaries. There were also findings that there had been attempts to cover up, and even destroy, available evidence.
Syed Mohd Azlan b Syed Mohamed (27 Nov 2014)
(3) In the EAIC Inquiry Report concerning the death in custody of one Syed Mohd Azlan b Syed Mohamed on 27 Nov 2014, the EAIC found that police officers had killed (“murdered”) Syed Mohd Azlan. They also found, amongst others, the involvement of police officers in trying to destroy evidence and interfere with the police investigations. They recommended that the Public Prosecutor charge these police officers under section 302 of the Penal Code (murder) and for various crimes. The following are merely some extracts from the said EAIC Inquiry Report:
Suruhanjaya mendapati anggota polis B4 telah mengganggu bahan bukti di tempat kejadian apabila mengarahkan A29 (pemilik rumah tempat tangkapan) melalui panggilan telefon kepada A29 pada jam lebih kurang 8.40 pagi, pada 3 November 2014 untuk membersihkan tempat kejadian dan melupuskan tikar getah dan karpet yang mempunyai kesan darah si mati….(9.6)Suruhanjaya juga mendapati anggota polis B4 telah membuat panggilan telefon kepada A29 mengarahkan A29 supaya menghilangkan / menyembunyikan diri selepas kejadian tangkapan dan kematian si mati… (9.7)Suruhanjaya mendapati terdapat perlakuan jenayah yang melibatkan unsur niat bersama atau pensubahatan (abetment) oleh B1, B2, B3, B4 dan A1 bagi melakukan serangan kekerasan fizikal secara sengaja ke atas si mati yang telah mengakibatkan kecederaan dan kematian ke atas si mati, dan perlakuan ini adalah merupakan kesalahan jenayah di bawah undang–undang khususnya di bawah seksyen 302, seksyen 325 Kanun Keseksaan dibaca bersama seksyen 34 atau seksyen 107 Kanun yang sama. (9.12)Suruhanjaya juga mendapati perlakuan anggota polis B4 yang mengarahkan A29 supaya melupuskan barang bukti dan menyembunyikan saksi material iaitu secara mengarahkan A29 supaya menghilangkan diri, adalah satu kesalahan berunsur jenayah di bawah seksyen 118 atau seksyen 119 Kanun Keseksaan yang mewajarkan pendakwaan jenayah dibawa terhadap B4 tersebut. (9.13)Suruhanjaya juga menerima perkara–perkara dan dapatan–dapatan siasatan Pasukan Petugas selaras dengan peruntukan seksyen 30(1)(c) Akta 700, bagi pendakwaan jenayah diperakukan kepada Pendakwa Raya terhadap pegawai dan anggota yang didapati telah melakukan salah laku jenayah seperti yang dikenalpasti di dalam Laporan ini. (9.16)
(4) Despite the recommendation that these officers be charged and tried, there seems to be no information that any criminal action has been taken against these police officers who have broken the law.
Dharmendran s/o Narayanasamy (May 2013)
(5) In the EAIC Inquiry Report concerning death in police custody of one Dharmendran s/o Narayanasamy, it was revealed again that police officers behaved dishonestly and tampered with police records. Some extracts of this report, as examples, are as follows:
Suruhanjaya mendapati catatan entri tambahan di P32 pada 21 Mei 2013 di catatan entri no. 3150 selepas sahaja perkataan “terkawal” adalah maklumat butiran palsu / salahnyata yang direka secara bersama oleh SP60 (A/SAC Khairi Ahrasa), SP27 (A/ACP Yahya Abdul Rahman), SP39 (DSP Glenn Anthony Sinappah) dan SP44 (Insp. Hare Krishnan a/l Subramaniam) pada malam kejadian (21 Mei 2013) semasa perbincangan di Bilik Mesyuarat D9, … supaya membuat catatan tambahan di entri no. 3150 tersebut berdasarkan maklumat yang direka–reka tersebut...(31.2.2)Suruhanjaya mendapati catatan di entri no. 3154 di Eksibit P32 yang mencatatkan “L/Kpl 144682 terima aduan daripada OKT, penama Dharmendran a/l Narayanasamy maklum sesak nafas dan rasa hendak pergi hospital untuk buat rawatan.”;…juga merupakan entri palsu / salahnyata oleh pakatan bersama …(31.2.7)Suruhanjaya mendapati perlakuan SP60, SP27, SP39 dan SP44 yang secara bersama mereka–reka kandungan entri no. 3150 bahagian kedua, entri no. 3151, 3152, 3153 dan 3154 dengan mengarahkan SP24 dan SP25 membuat catatan kandungan yang direka–reka tersebut di dalam Eksibit P32 adalah satu perlakuan salah laku yang serius yang melibatkan pegawai–pegawai kanan bertujuan untuk melindungi (cover–up) fakta sebenar kematian si mati dengan memberi maklumat yang diketahui sebagai tidak benar atau palsu yang boleh menjejaskan suatu siasatan kes yang adil dari dapat dilakukan berkaitan kematian si mati…(31.2.11)Perlakuan SP60, SP27, SP39 dan SP44 yang mereka–reka entri palsu / salah nyata untuk dicatat di dalam Eksibit P32 (Buku Perharian Balai) boleh menjurus kepada kesalahan bersifat jenayah seperti yang diperuntukkan oleh seksyen 192, 201 dan/atau seksyen 203 Kanun Keseksaan.(31.2.12)
(6) In this case, four police officers had already been charged when the EAIC Inquiry started, and as such the Inquiry did not look in greater detail at the killing. It focused, however, on the other wrongdoings, including the dishonest behaviour of the police who changed / tampered with police records and documents for the purpose of possibly covering up the truth.
(7) Again, we have no information of any of the said officers being charged in court for the alleged crimes that they committed.
(8) It is possible that some “internal” disciplinary action may have been taken against these police officers. There is also the possibility that no action was taken. In any event, this information seems not to have been reported in the media.
(9) Honesty and integrity are expected, especially from the police, enforcement officers, prosecutors and judges involved in the administration of criminal justice.
(10) As such, when the police have been found to be wrongly and dishonestly tampering with evidence and records, and / or involved in actions of cover–ups, these actions cannot be tolerated. The failure of police officers to report wrongdoings and / or crimes of their fellow police officers also cannot be tolerated.
(11) There is a need to weed out such “bad” and / or dishonest police officers, and it is also important that such police officers not be “protected”, but be charged and tried in a court of law.
(12) Such actions against “bad” police officers are needed to protect the integrity of the police, and also may serve as a deterrent to other police officers, enforcement officers and prosecutors involved in the administration of justice in Malaysia.
Therefore, it is hereby resolved:
(A) That all police officers who have committed a crime, be it torture, murder, tampering with evidence or records, and / or covering up crimes of fellow officers, be removed to protect the integrity of the Malaysian police and the administration of justice;
(B) That all police officers who have committed a crime related to the carrying out of their duties be promptly investigated, charged and tried in open court, rather than subjected to “secretive” internal disciplinary actions;
(C) That torture and death in custody be eradicated from Malaysia;
(D) That the Bar Council continue doing the good work it is doing to ensure the eradication of torture and death in custody in Malaysia;
(E) That the Bar Council ensure that the Standard Operating Procedures (“SOP”) governing all police action be made public, for it is necessary for all to know it so that they can claim their rights, and / or highlight when their rights are violated; and
(F) That Malaysia immediately set up an Independent Police Complaints and Misconduct Commission (“IPCMC”).
The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.
Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent
(1) The case of Siti Noor Aishah Atam highlighted the very real possibility that innocent persons are wrongly made victims of draconian laws that allow for detention without trial. Most victims are totally denied the right to a fair trial, but Siti Noor Aishah Atam, despite being acquitted by the courts, was still subjected thereafter to detention without trial laws.
Detention Without Trial Laws
(2) Detention without trial continues to exist in Malaysia despite the fact that the draconian Internal Security Act 1960 (“ISA”) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 have been repealed.
(3) The Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”) came into force on 31 July 2012 vide section 32(1), and repealed the ISA. The Emergency (Public Order and Prevention of Crime) Ordinance 1969 was also repealed in 2013.
(4) The Dangerous Drugs (Special Preventive Measures) Act 1985, which provides for detentions and/or restrictions without trial, still remains. Vide Resolution under subsection 1(4) [PU(B) 241/2015], this Act was extended for a further period of five years with effect from 15 June 2015.
(5) Other laws that provide for detention without trial today include the Prevention of Crime Act 1959 (“POCA”), following amendments in 2014, and the new Prevention of Terrorism Act 2015 (“POTA”).
(6) Vide Prevention of Crime (Amendment And Extension) Act 2014, a new Part IVA entitled “Detention Orders” was inserted, which now allows for detention without trial orders. Section 19A, amongst others states (emphasis added): “. . . . (1) The Board may, after considering the report of the Inquiry Officer . . . . and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime . . .”.
No Judicial Review to Challenge the Reasons One is Victimised
(7) Like the now–repealed draconian ISA, there shall be no judicial review with regard to the reasons or justification of detention and/or restriction orders under these detention without trial laws, but only “in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”. Section 15A(1) POCA states (emphasis added): “ . . . . There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.
(8) POCA’s usage, which was originally limited for triads or crime gangs, has been significantly extended vide Prevention of Crime (Amendment of First and Second Schedule) Order 2014 [PU(A) 122/2014], which came into force on 2 May 2014. Whilst previously limited to those persons who belong to any group, body, gang or association of 5 more persons who associate for purposes which include the commission of offences “involving violence or extortion”, it was extended to all offences under the Penal Code, and persons who also consort with these groups of two or more persons. As such, any person who allegedly commits any Penal Code offence with two or more persons can now be subjected to POCA, irrespective of whether it involved violence or not.
(9) POCA can now also be used against persons allegedly involved in trafficking in dangerous drugs, trafficking of persons and smuggling of migrants, and against those who benefit from such actions. It can be used against those who allegedly engage in the commission or support of terrorist acts under the Penal Code. It can also be used for persons who recruit, or agree to recruit, another person to participate in the commission of an offence.
(10) POCA can also be used against “. . . . all persons who, being not less than twenty–one years of age, have since attaining the age of seventeen been convicted on at least three occasions of offences involving dishonesty or violence”.
(11) The breadth of the application of POCA is draconian, and it is open to the possibility of unchecked abuse by the police, public prosecutors and the Government. It undermines the safeguards to prevent a miscarriage of justice.
Remand Devoid of Judicial Discretion
(12) With regard to post–arrest remand for the purposes of investigation, Parliament amended the Criminal Procedure Code, restricting also the permissible length of remand orders by Magistrates (section 117 of the Criminal Procedure Code), where even “if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application”. The Magistrate is empowered to exercise his/her judicial discretion, after considering the representations made either by the accused himself, or through a counsel of his choice; the representations of the police or the prosecutors; including also considering what the police had done since arrest, as contained in the police diary. Now, even if dissatisfied with the decision of the Magistrate, there is still the possibility of revision by the High Court Judge.
(13) Parliament amended the law concerning remand, possibly to prevent abuse of remand but all these safeguards are ignored if POCA, POTA and/or SOSMA is/are used.
(14) When POCA is used, all that is needed is the production of a statement in writing signed by a police officer not below the rank of Inspector, stating that there are grounds for believing that the name of that person should be entered on the Register, and the Magistrate has no choice but to remand the person in police custody for a period of 21 days. (Before the 2014 amendment, the required statement was of a police officer not below the rank of Assistant Superintendent — now, just an Inspector will suffice.) Judicial discretion of the Magistrate in the remand proceeding is ousted. The right to be heard, of the suspect and/or his lawyer, is denied.
(15) For a further remand, all that is required is a statement in writing signed by the Public Prosecutor and a statement by a police officer not below the rank of Assistant Superintendent, and the suspect will be remanded for a further period of 38 days.
(16) The same applies when POTA is used — judicial discretion of the Magistrate is ousted. On the production of the statements by the police, and subsequently the police and Public Prosecutor, the Magistrate has no choice but to give the remand order of 21 days, and thereafter 38 days. The right to be heard is denied, and the judicial discretion of a Magistrate is ousted.
(17) When SOSMA is used, there is not even the need to bring the suspect before the Magistrate. A police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than 28 days, for the purpose of investigation.
Right to Consult and/or be Represented by Lawyer Curtailed and/or Denied to Persons Subject to Inquiry and/or Witnesses
(18) Under POCA, the right to be represented by a lawyer during the inquiry is limited, as stated in section 9(5): “Neither the person who is the subject of the inquiry nor a witness at an inquiry shall be represented by an advocate and solicitor at the inquiry except when his own evidence is being taken and recorded by the Inquiry Officer.”
(19) There is not even the right to be present and/or represented during the inquiry when evidence is taken from other witnesses and/or sources, let alone the right to cross–examine, let alone challenge alleged evidence against the victim of these detention without trial laws.
(20) It must be noted that the right to be represented by a lawyer is denied to any person(s) in detention and/or confined in prison when the Inquiry Officer conducts his inquiry. Section 9A(2) states: “Nothing in this section shall authorise the attendance of the subject of the inquiry or his advocate and solicitor or representative, if any, at the place of detention or prison.”
(21) There is also no right of representation when the Inquiry Officer submits his report to the Board of Inquiry. There is also no right to even make a submission for the consideration of the Inquiry Officer and/or the Board of Inquiry before a final decision is made. Section 9(6) states: “The Public Prosecutor may appear at an inquiry to assist the Inquiry Officer.” But no such right to the victim or his lawyer.
(22) The process is grossly unjust, and an innocent victim like Siti Noor Aishah Atam can easily and/or unjustly be deprived of his/her liberty, rights and freedom.
Danger of Abuse, Corruption and Miscarriage of Justice
(23) Corruption has always been suspected when it comes to the police and/or prosecutors. This possibility of corruption is escalated when detention without trial laws and SOSMA are used, especially when judicial monitoring of administrative decisions is stifled and/or excluded. The right to be heard and the right to a fair trial are denied.
(24) The Malaysian Anti–Corruption Commission (“MACC”) stated that about 54% of civil servants under the age of 40 are corrupt (New Straits Times and Malaysiakini, 8 Mar 2017), and this is most disturbing.
(25) When persons are not charged, tried and convicted, there is also the possibility that others involved in the crime will never be revealed, and will simply escape having to face justice.
(26) Detention without trial laws encourage a lackadaisical attitude and inefficiency in the police force and other enforcement and prosecution officers, as there is now no more the need to find sufficient evidence as required by law to prove in court that one is guilty of a crime. The case of Siti Noor Aishah Atam is evidence of this, when even the books for which she was arrested in the first place were not even books banned in Malaysia. The courts in that case acquitted Siti Noor Aishah Atam at the close of the prosecution's case, as the prosecution failed to prove a prima facie case.
(27) When innocent persons are placed under detention without trial, it is also possible that the true criminals will never be caught and brought to justice. Police may just close the files, believing that they have managed to get the real perpetrator, when the person in detention may be some innocent person. The belief of the police and/or prosecution in the guilt of a person is immaterial, as what is important is for the court to decide on the guilt of an accused person, also noting the large number of criminal trials that have ended with acquittals.
(28) Victims of crimes also deserve to see justice be done, and this can only happen if there is a fair trial, a conviction and a sentence. In the absence of a conviction, victims and their families are also denied the possibility of subsequently commencing a legal action claiming for damages and/or compensation.
(29) With the unavailability of judicial review of the reasons or justifications of the actions and/or decisions of the police, Public Prosecutors and/or the Board of Inquiry, including the imposition of remand orders, detention orders and/or restrictions / conditions on the victims of POCA and such detention without trial laws, the likelihood of miscarriage of justice is extremely high. Innocent persons will be wrongly deprived of their liberty, freedom and human rights.
Lost Right to Rely on the Double Jeopardy Principle
(30) Worse still for these victims of detention without trial laws, they can always at any time during their detentions and/or any time later, be charged, convicted in court and sentenced, for the very same offences for which they were subjected to detention and/or restrictions / conditions under POCA and such detention without trial laws.
(31) Section 19G of POCA states: “The detention of any person under this Part shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention.”
(32) The double jeopardy principle that prevents an accused person from being tried again on the same charge, following a valid acquittal or conviction, will not apply.
Siti Noor Atam Aishah — Proof of the Abuse of SOSMA and POCA?
(33) Siti Noor Aishah Atam — a 29–year–old Malaysian woman and a University of Malaya Masters of Usuluddin (Islamic Studies) student — was arrested on 22 Mar 2016 for the alleged possession of 12 books related to Jemaah Islamiyah (“JI”), Islamic State (“IS”) and Al–Qaeda (“AQ”), at her residence. She was charged under section 130JB(1)(a) of the Penal Code, tried, acquitted and released by Judicial Commissioner Datuk Mohamad Shariff Abu Samah in the High Court [Di dalam Mahkamah Tinggi Jenayah 4 Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur Perbicaraan Jenayah No: 45SO–7–5/2016].
(34) The Public Prosecutor at the High Court applied that Siti Noor Aishah Atam continue to be detained under SOSMA pending the filing of the appeal, which the court denied. A Bernama report carried by Sinar Harian stated: “. . . . Mahkamah turut menolak permohonan Timbalan Pendakwa Raya Mohamad Mustaffa P. Kunyalam untuk menahan Siti Noor Aishah di dalam penjara mengikut Seksyen 30(1) Akta Kesalahan Keselamatan (Langkah–langkah Khas) 2012 (SOSMA) sementara menunggu rayuan difailkan oleh pihak pendakwaan terhadap pembebasan tertuduh. . .