MADPET Wants No Detention Without Trial
*** Contributed By Joseph Francis ***
PRESS STATEMENT . . . MADPET, Malaysians Against Death Penalty and Torture, has urged in a statement that all "suspects" arrested be accorded all rights normally accorded to persons arrested, detained and subject to the criminal justice system in Malaysia.
"That includes the right to consult and be defended by a legal practitioner of his or her choice, and the right to a fair trial," added MADPET Spokesman Charles Hector in the statement.
He called, in reiterating, for the immediate and unconditional release of all those currently being detained under Detention without Trial laws. MADPET also wants the immediate repeal of all such Detention without Trial laws including the Prevention of Terrorism Act 2015 (POTA).
The NGO stressed that it was concerned about what was happening to the many suspects who have been arrested/detained for alleged involvement in "terrorist" and/or criminal activities. They include the 15 just arrested in connection with an explosion at the front porch of Movida, a nightspot in IOI Boulevard in Puchong, on June 28. Eight people were injured, according to the Star on July 4.
In March 2016, it was also reported that "more than 160 people suspected of having ties to ISIS have been detained in Malaysia in the past two years"... (The Guardian, 25 March 2016).
Malaysia must disclose the exact number of persons presently being detained without trial, said Hector. "The authorities concerned must disclose how many are being held without trial, under 'Restriction Orders' or similar orders, how many persons have been charged in court, and how many have been released."
MADPET noted that Malaysia amended and/or enacted new laws in 2014 and 2015 that allows for Detention Without Trial (DWT). "A person held without being accorded the right to a fair trial, can be subject to administrative Detention Orders ‘for a period not exceeding two years, which can thereafter be renewed for a further period not exceeding two years at a time’, for any number of times."
The amendments to the Prevention of Crime Act 1959 (POCA), that came into force on 2 April 2014, and the enactment of the Prevention of Terrorism Act 2015 (POTA), which came into force on 1 September 2015, both allow for Detention Without Trial.
Judicial review is a necessary check and balance in government, argued MADPET. "It allows the judiciary to review the lawfulness, fairness and reasonableness of a decision or action of the legislative and/or executive branches of government."
The people detained by reason of such Detention Without Trial Orders do not even have the right to challenge the alleged reasons/justifications of the authorities who made the said Detention and/or Restriction Order in a court law by way of judicial review.
Besides Detention Orders, there are also provisions for "Without Trial" Restriction and/or Police Supervision Orders.
These Restriction Orders could be "for a period not exceeding five years, which can thereafter be renewed for a further period not exceeding five years at a time".
These orders,.warned MADPET, violate one’s human rights and freedoms i.e. movement, communication, association, access to information/internet, etc.
These Detention and/or Restriction Orders are made, without even having first the need to prove that a person was guilty beyond reasonable doubt in a fair trial. Like the Detention Orders, one cannot go for Judicial Review to challenge the reasons or grounds for these Restriction Orders.
Article 10 of the Universal Declaration of Human Rights (UDHR) states that, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".
Article 11(1) goes on to state that, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence".
Hence, the detaining of persons, or the imposition of restrictions to one’s freedoms and/or liberties, without according the person his/her right to a fair trial was a gross violation of one’s basic human rights, said the MADPET statement.
It may also be considered to be wrongful "arbitrary detention" (Art. 9 UDHR) and possibly even a violation of Article 12 which states that, "No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation".
A Fair Trial is the best way of separating the guilty from the innocent and protecting against injustice, continued Hector. "It also prevents governments from abusing their power."
"The failure to charge and prosecute in open court also raises the concern that there really was no sufficient evidence, if any, to prove the person guilt."
Elsewhere, it also encourages a lacksadical attitude amongst the police and law enforcement authorities, as there was really no obligation now to do a comprehensive investigation or to find sufficient admissible evidence to prove the guilt or innocence of a suspect. "They can always easily resort to these ‘without trial’ options," said MADPET.
Given the fact that the reasons for the Detention and/or Restriction Orders cannot be reviewed in court, it makes it extremely dangerous, cautioned Hector. "There may be miscarriage of justice, and innocent persons may be subject to wrongful detention, wrongful deprivation or his/her freedoms and liberties, and wrongful tarnishment of his/her honour and/or reputation."
Speedy investigation and action by the police and/or government was always commendable, said the statement. "But if there's going to be a denial of human rights, including the right to a fair trial, there is always the risk that the guilty may still be out there."
The innocent, in that case, suffer the consequence of a miscarriage of justice.