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I. Summary

To bring these terrorists through normal court procedures would have entailed adducing proper evidence, which would have been difficult to obtain.

—Malaysian Prime Minister Mahathir, October 2001

Nearly one hundred men currently languish in Malaysia’s Kamunting detention center—some have been there for more than two years—without being charged with a crime or any prospect of a trial.  Almost all are accused of being involved with organizations implicated in terrorist activity.

While in detention, detainees report that they have been mistreated, some subjected to sexual humiliation, others slapped and kicked.  All were held incommunicado for several weeks after they were first detained.  Family members report that detainees showed signs of more extensive physical abuse when they first were able to meet with them.

These men are being held under Malaysia’s Internal Security Act (ISA), a form of administrative detention that permits the government to detain individuals without charge or trial, denying them even the most basic due process rights.  The ISA allows the government to hold detainees for two years after arrest, and then renew this period indefinitely without meaningful judicial approval or scrutiny. 

The ISA has long been used as a blunt tool to stifle political opposition to the government.  In 1987, then Prime Minister Mahathir used the ISA to save his own political career, ordering the arrests of scores of politicians in the wake of a vote-rigging scandal that had placed his continued tenure as prime minister in serious jeopardy.  In 1998, former Deputy Prime Minister Anwar Ibrahim initially was held under the ISA after his falling out with Mahathir.  In 2001, the government detained under the ISA ten prominent political activists who planned protests over the continued detention of Anwar, who by that time was serving a fifteen-year sentence after trials marred by serious rights violations.

The very existence of the ISA and its draconian provisions has acted as a crude form of censorship of political activities and expression.  Its past use as a political weapon by the government casts doubt on the Malaysian government’s claim that the ISA is now being used as a necessary measure in the “war on terror” and not for political purposes. 

Malaysian human rights advocates have for many years campaigned for the repeal of the ISA.  In the past they could rely on support from the United States to challenge the government’s use of the ISA.  Since the September 11, 2001 attacks on the United States, however, the U.S government has not only been conspicuously quiet about the ISA, but has even expressed support for its use against terrorist suspects. 

As made clear by the scandal surrounding abuse of detainees by United States forces in Iraq, a story that was breaking as this report was being finalized, abuses flourish in detention facilities where strong pressure on interrogators to come up with information is coupled with weak or nonexistent oversight mechanisms.  Malaysia’s ISA, a law that allows individuals to disappear into a legal black hole and emerge only at the whim of those in power, invites such abuse.

This report—based largely on interviews with recently released ISA detainees, family members of detainees, lawyers, and aid providers, as well as affidavits written by detainees and smuggled out of Kamunting—documents violations of the rights of alleged militants held under the ISA since August 2001.¹  Because access is severely limited, the extent of abuse is unknown.  It is clear, however, that detainees have been abused during interrogation, that they have been subjected to prolonged detention without trial, and that they have been regularly denied access to counsel. 

This report also details attempts by authorities to manipulate detainees and their families so that they do not avail themselves of what limited judicial remedies are available.  Detainees were able to meet with lawyers and family members only under constrained circumstances.  Prior to the meetings, detainees were told to urge their wives and children not to get a lawyer or to talk to the press or human rights groups.  They and their families were warned that making legal challenges to their detention would result in longer and harsher sentences and conditions of detention.  When they ignored these warnings, prison officials either hindered or completely blocked meetings between detainees and their lawyers.  Fearful of damaging their prospects for an early release, many detainees did not contact lawyers, delaying by several months any legal challenge to their own detention.

Neither the men nor their families have any idea when they will be released.  While the detainees fight for their day in court, they have already been tried and convicted in the press.  Because much of the Malaysian media is heavily controlled by the government, Malaysian newspapers have, almost without exception, reported on the detentions as though all of the allegations made by the government have already been proven, and have often failed to print information or allegations that cast doubt on the cases or present government actions in a negative light.

Who They Are

The current wave of ISA arrests began in August 2001, when the Malaysian government detained a group of ten alleged militants.  The Malaysian government claimed that the detainees were members of a group it called Kumpulan Militan Malaysia (KMM, or Malaysian Militant Group), which according to the Malaysian authorities wants to overthrow the government and set up an Islamic state.  Eight of the ten men arrested were members of Parti Islam SeMalaysia (PAS, or Islamic Party of Malaysia), Malaysia’s largest Islamist opposition party.  Those arrested included Nik Adli, a PAS member and the son of senior PAS cleric Nik Aziz, PAS youth wing leader Noorashid Sakip, and PAS Youth committee member Mohamed Lothfi Ariffin.  The detainees were held without charge and, under the ISA, were denied access to counsel.  Domestic and international observers criticized the arrests as politically motivated.  They were seen as the latest attempt by then-Prime Minister Mahathir Mohamed to weaken the surging PAS in the lead-up to regional elections in 2002 by linking it to radical Islam. In the wake of the arrests, the U.S. government criticized the Malaysian government for once again detaining individuals without trial under the ISA.  But the U.S. stance changed after September 11, 2001, when it became supportive of the use of the ISA against alleged militants.  

The pace of arrests increased after the attacks on the United States on September 11, 2001.  In October 2001, the Malaysian government detained an additional six individuals, five of whom were teachers in religious schools, on the grounds that they too were members of KMM.

Ultimately, more than one hundred individuals have been detained on terror-related grounds under the ISA.  A handful have been released, leaving a total of roughly ninety in custody at the time of writing.  Of these, approximately seventy are alleged to be members of Jemaah Islamiyah (JI, or Islamic Community), a militant group purportedly seeking to create an Islamic state encompassing Malaysia, Indonesia, and parts of the southern Philippines.  JI has been accused of carrying out the bombings in Bali and Jakarta in Indonesia in 2002 and 2003, which killed more than two hundred people.  Seventeen other detainees are alleged to be members of KMM.  One alleged member of the Filipino group Abu Sayyaf, implicated in bombings in the Philippines, is being held at Kamunting as well.

Five detainees are members of the “Karachi 13.”  Pakistani authorities detained thirteen young men and boys, the youngest of whom were under sixteen at the time of arrest, in Karachi, Pakistan, in September 2003.  They were not alleged to have engaged in any illegal activity, but were arrested on the claim that they were being trained to engage in future terrorist activities.  They were arrested by Pakistani security forces, held incommunicado and interrogated by Pakistani and U.S. security personnel, and then shipped to Malaysia.  No charges have been brought against any of them.  Without judicial recourse, the future of these young men, like the other ISA detainees, is now subject to the whims of the executive branch of the Malaysian government.

Human Rights Watch recognizes the obligations of the Malaysian government to protect its population from terrorist attack and to bring those responsible for engaging in such attacks to justice.  There are serious and credible allegations that some of the September 11th hijackers used Malaysia as a transit point and that some of the alleged perpetrators of the bomb attacks in Bali and Jakarta spent considerable time in the country.

But the Malaysian government has yet to demonstrate that any of the individuals it has detained have actually engaged in any illegal activity.  More importantly, it has not shown that the investigation, arrest, and detention of alleged militants could not be handled through normal criminal procedures that include proper procedural safeguards to protect the rights of the accused.  Without these safeguards, the Malaysian government cannot be sure that all of the men it has captured are in fact dangerous individuals planning to carry out attacks, or whether it has locked up men whose only crime was an interest in a small group of charismatic Muslim clerics.

Human rights protections can be harmonized with state security, but there is no indication that Malaysia has made any efforts to do so.  A cornerstone of international human rights law is the presumption of innocence and the right to a fair trial before one’s liberty is taken away.  With its broad use of the ISA and its refusal to bring these cases to trial, Malaysia has turned these principles on their head.

The Impact of the Guantanamo Bay Detentions

Although literally halfway around the world, the U.S. detention facility at Guantanamo Bay looms over the men held under the ISA—not so much the facility itself, but its symbolic value expressing a new acceptance of human rights violations in the name of fighting terrorism.  Some ISA detainees have been told that they would be sent to Guantanamo if they failed to cooperate.  Others were told that they shouldn’t complain about their detention under the ISA because, if they were released, U.S. authorities would pick them up and take them to Guantanamo, where they would face an uncertain future far from home. 

Guantanamo and the U.S.-led “war on terror” influence ISA detainees in other ways.  For decades the ISA has been regularly and harshly criticized by the U.S. for being part of a larger apparatus of repression.  That the United States has not challenged the detention of these men under the ISA is a testament to the significant erosions in respect for international human rights norms since the attacks of September 11th.  Discussing the ISA, a senior State Department official told Human Rights Watch that the U.S. government would take up cases such as those described in this report if the level of treatment was “worse than Guantanamo.” 

The refusal of the U.S. to speak out against the ISA’s provisions and the detention of individuals without charge or trial reflects the reality of international relations in the post-September 11th era: the United States is reluctant to speak out on human rights violations that occur as a putative part of the U.S.-led “war on terror,” while many governments use the threat of terrorism to justify their own, longstanding practices of systematically violating basic human rights norms.  

Recommendations

Human Rights Watch calls on the Malaysian government to immediately charge or release all ISA detainees and to thoroughly investigate widespread reports of threats, coercion, and abuse in detention.  Prime Minister Abdullah Badawi, who won election in March 2004 and has expressed interest in improving Malaysia’s human rights situation, should take urgent steps to abolish or amend the ISA to bring it into conformity with international human rights standards. Indefinite detention without trial cannot meet such standards.  It has no place in the legal system of a country that in so many other fields has made gigantic strides in recent years. 

Human Rights Watch calls on the governments of the United States, the European Union, Japan, and the Association of Southeast Asian Nations (ASEAN) to press for the elimination of the ISA in Malaysia. 

As a crucial step, the U.S. should stop overlooking or even supporting the Malaysian government’s use of the ISA on the ostensible grounds that it is cooperating with the U.S. in the “war on terror.”  Cooperation between the U.S. and Malaysian governments on counter-terrorism must only be carried out in accordance with the basic human rights obligations of both countries.  Malaysia has cooperated closely with the U.S. over the past two years, sharing information gleaned from interrogations of ISA detainees with U.S. government officials and, on at least two occasions, allowing U.S. government interrogators direct access to ISA detainees.

The U.S. has rewarded Malaysia’s cooperation on anti-terrorism handsomely: bilateral relations, which suffered as a result of Malaysia’s lackluster human rights record, have dramatically improved, and U.S. criticism of Malaysia’s human rights record, once highly vocal, has been muted.  The United States should publicly and privately resume the principled position it has historically taken with Malaysia over the use of a law that is anathema to human rights principles.