Saturday, July 4, 2009

“Proof Unnecessary, Suspicion is Enough”

KUALA LUMPUR, Sat: The Kuala Lumpur Bar Criminal Practice Committee organised a Forum entitled “Preventive Laws – Past, Present & Future” at the Tun Mohamed Suffian Auditorium, Universiti Malaya today at 9.00 a.m.

The speakers were Dato’ Muhammad Shafee Abdullah (representative from SUHAKAM), Professor Dr. Shad Saleem Faruqi (from Universiti Teknologi Mara UiTM) and Mr M.M. Athimulan (Advocate & Solicitor). The Forum was moderated by N. Sivananthan, Chair of the Kuala Lumpur Bar Criminal Practice Committee.

After the opening address by R. Ravindra Kumar, Chairman of the Kuala Lumpur Bar, Dato’ Shafee was called upon to give his views on the state of preventive laws in Malaysia.

Dato’ Shafee, formerly with the AG’s Chambers, formerly a Deputy Public Prosecutor and currently a member of the Bar Council, did not mince words. He said that the official position of SUHAKAM is that all preventive laws should be repealed. He however said that the preventive laws which were in ‘danger’ in the 1990s, took on a new life after the events of 9/11 with increasing pressure from the USA and other western nations for South East Asian countries to implement and enforce preventive laws for counter-terrorism purposes. And he said that the government of Malaysia is seizing on worldwide attention on terrorism to justify detention without trial.

Dato’ Shafee expressed his view that, given the circumstances, preventive laws will stay for quite some time in Malaysia. And he said it may be time to look at the alternative of amending the provisions of the respective preventive laws in order for it to operate in the fairest of conditions.

He then outlined the historical background of the preventive laws such as the Internal Security Act, 1960 (ISA) and the Emergency (Public Order and Prevention of Crime) Ordinance, 1969 (POPO). He also commented on the recent legislation such as the Anti-Money Laundering Act 2001, the Mutual Assistance in Criminal Matters Act 2002, the amendments to the Penal Code and to the Criminal Procedure Code. He commented that such legislation and amendments were a result of pressure from overseas and concerns about terrorism originating from the South East Asia region. But he said they were largely impotent in terms of enforcement.

He then delved extensively into the problems pertaining to the preventive laws and the manner in which they are implemented in Malaysia. He said that, when appearing before the Advisory Board, the standard of proof was completely lacking and it was the most deplorable state of affairs with breaches of every aspect of natural justice.

Dato’ Shafee also said that one of the biggest problems was that investigations were conducted by the Special Branch, who were trained for investigative work but not geared towards collection of evidence for prosecution. As a result, he said the evidence adduced was grossly unsatisfactory and suffer greatly in terms of credibility. He said, within the Special Branch, it appeared that the ends justify the means and that lying is not necessarily a bad thing. He said proof appeared to be unnecessary, suspicion was enough.

He said that, right from the beginning, the charges were extremely vague without any particulars, no names of the victims or the identity of the witnesses, dates were stated within a wide range and no explanation was given in what way national security was compromised. This continued right up to the representations before the Advisory Board. Dato’ Shafee said that there is new trend to disallow counsel to cross-examine witnesses and most of the time the witnesses were not present when counsel was called upon to address the Advisory Board. Sometimes the evidence is read out quickly during the representations before the Advisory Board so as to make it difficult for counsel to take down even the gist of what is being read out. There have also been cases where counsel makes representations before the Board only for the Investigating Officer to come in later before the Board after counsel had been asked to leave.

Dato’ Shafee said that many measures could be implemented to reduce the draconian nature of the preventive laws. He said that a proposal prepared by SUHAKAM on this was complete and thorough and urged the public to review this. He also said that the Courts must be given specific powers to review whether the matter is actually of national security and threshold evidence must be adduced to support this. He said that there must be amendments to reflect basic principles such as right to counsel and next of kin and reasonable access to counsel. He said that pre-trial discovery must also be put in place.

Professor Dr. Shad Saleem Faruqi was then invited to speak. Prof Shad started by saying that despite the events of 9/11, this was still the age of human rights and preventive laws are contrary to human rights. He agreed however that we need to forge a middle path if the preventive laws could not be abolished. He agreed that amendments could be made to provide safeguards to ensure fairness and justice. He said that the preventive laws permit a tremendous possibility for abuse of power and government interests are often confused with national interests. He said some detainees were persecuted for their political beliefs.

Prof Shad said that he was not particularly bothered by the preventive laws themselves but more about what happens before and after preventive detention. That, he said, was the main problem. He said that there is a lack of efficacy of judicial review and this is a sad problem worldwide. Courts abdicate their responsibility of standing between the state and its people.

He said that the Courts were unwilling to go behind the ministerial discretion exercised under section 8 of the ISA and the Courts were not willing to examine the substance of the decision of the Minister. He then outlined the case law on preventive detention and how rarely the Courts have decided against the Minister. Prof Shad made it a point to mention that the Malaysian Bar ought to be credited with continuing to advance the interests and rights of the detainees and to push for fairness and justice for them. He said the role of lawyers in making law is not given adequate credit.

In outlining the amendments that he believed would make preventive laws fair and just, Prof Shad said that the enquiry under section 73(1) of the ISA must be a pre-requisite to section 8. He also said that the enquiry must be subject to review by an independent board. He said that the Minister’s decision must be open to review by the Courts as no person ought to be allowed to be accuser, adjudicator and executioner without any check and balance. He said that the 90 day limit must be reinstated and strictly applied. As for the Advisory Board, Prof Shad’s view was that the Board must be totally reconstituted. He suggested a special court or tribunal comprising men or women of integrity and independence. He said that should also be no denial of access to information and evidence to the Advisory Board. He also suggested that the minister’s decision be subject to review by the Board every 6 months and the period of detention should be reduced from 2 years to 1 year and with only one extension possible thereafter. Prof Shad also said that the public should consider taking out actions in tort for unlawful detention and cited Abd Malek Hussin’s case as an example.

Mr Athimulan, a member of the Penang Bar, also agreed that the preventive laws appeared to be here to stay. He said that existing safeguards should be strictly enforced and where there are no safeguards, measures must be taken to implement them. He stressed the critical importance of judicial review to ensure that basic human rights are not violated. He advocated the abolishment of all provisions prohibiting judicial review. He was also of the view that Judges must be more vigilant in interpreting the law to see the intent of Parliament when dealing with preventive detention. Judges must be bold enough to check any abuses.

Tuan Syed Ibrahim Syed Noh, Chairman of Gerakan Mansuhkan ISA (GMI), was one of those who spoke out during the question and answer session. He pointed out that in August, we would have been living with the ISA for 48 years. He said that there is evidence way back in time of torture and abuse during preventive detention and he did not agree that amending the preventive laws was the way forward. He reminded the speakers that the official position of SUHAKAM and the Bar Council was to call for the repeal of all preventive laws.

Tuan Syed then asked the speakers what they thought was needed to have the preventive laws repealed - was it political will, the judiciary or the people’s will ? Before sitting down, Tuan Syed invited everyone present to attend the Malam Himpunan Rakyat Anti-ISA at Stadium Melawati, Shah Alam at 8.30pm that night.

In answer to Tuan Syed’s query, Prof Shad said that academics and the public have in the past been largely apathetic and that reliance only on the judiciary was unrealistic. Dato’ Shafee agreed that to repeal the laws would require the will of the people. But he said that the role of the Judiciary on the other hand is also equally crucial. He said that Judges must breathe life into the provisions of the laws to give effect to the real intention of the laws and to protect the public against unfairness, injustice and abuse of process.

Leena Ghosh from the International Committee of the Red Cross, Malaysia also rose to highlight that the discussions at the Forum concentrated only on the implementation and enforcement of the laws but what was equally important was that the treatment of detainees during the period of detention must also be seriously looked into.

At 12.15pm, the Moderator thanked the audience for their attendance and thanked the speakers for generously making time to attend and speak at the Forum.

credit to The Malaysian Bar

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