<<previous | index | next>> IV. Violations of Due Process and the Role of the Judiciary under the ISA
Although the Malaysian government has publicly made serious allegations against all of the detainees, it has yet to specify, much less actually prove, the allegations against them. In September 2003, a group of 31 detainees decided to take legal action to try to force the government to prove its allegations against them. In a statement released by their lawyers, the group of 31 detainees declared their innocence and demanded their day in court:
Since then, the situation remains unchanged: the government has yet to charge any of the detainees, and it has given no indication that it will do so anytime soon. Denial of Access to CounselThe Malaysian constitution guarantees the right to counsel. Under Article 5(3) of the constitution, a person who is arrested has the right to be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.126 Despite this rather clear statement of the right to counsel, ISA detainees are regularly denied access to counsel, especially during the first sixty days of detention.127 The right of access to legal counsel is a fundamental precept of international human rights law. Recognizing that access to adequate counsel is crucial to mounting a legal defense and to fulfilling the presumption of innocence, Article 14 of the ICCPR states that the accused has the right to defend himself in person or through legal assistance of his own choosing.128 The right to counsel is more fully articulated in the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Principle 17 guarantees the right to counsel, and Principle 18 elaborates on that right, guaranteeing the right to meet with counsel while in detention, the right to communicate with counsel confidentially while in detention, and the right to adequate facilities for consultation to take place. In addition, the Basic Principles on the Role of Lawyers (Basic Principles) also guarantee the right to counsel, and further specify that access to an attorney should happen as soon as is practicable after an arrest, and in any case not later than forty-eight hours from the time of arrest or detention.129 The right to confidential consultation and adequate time and facilities for consultation is also stressed.130 Under the ISA, Malaysian authorities have paid little heed to the requirements of international law or Malaysian constitutional guarantees. Almost as a matter of course, the authorities have denied all ISA detainees access to counsel during their initial sixty-day detention period, despite the absence of any textual basis in the ISA for doing so. Because the courts are barred from questioning or reviewing the two-year detentions meted out under Section 8 of the ISA, this initial sixty-day detention period becomes all the more crucial in terms of launching a legal challenge. But without access to counsel, the ability of an ISA detainee to get his or her case into court is severely limited. Coercion against FamiliesThe Special Branch tightly controlled family visits with three apparent goals: to convince family members that the detainee was not being ill-treated; that families should not take any action on the detainees case; and that the detained relative was in fact guilty. Many wives quickly realized that their husbands were being told what to say: I asked him how he was treated, he said everything was OK. But I knew it wasnt OK, one of the wives of the detainees said.131 Another wife said matter-of-factly, My husband was parroting what they told him to do.132 In addition to attempting to assure their families that they were not being mistreated in detention, detainees also tried to urge their families not to try to help them in any way:
Detainees who have been released have confirmed that they were told what to say during family visits by Special Branch officials. One ex-detainee taken in for alleged terrorist activity in 2001 told Human Rights Watch that he was coached before his family came to see him:
Other former ISA detainees interviewed by Human Rights Watch had similar experiences, but most of them chose to obey the Special Branch and say what they were told to say rather than risk losing out on future family visits. An ex-ISA detainee detained for his political activity told Human Rights Watch that he received very specific instructions before his first post-detention family visit:
Special Branch officers were often very specific about the subject matters that they wanted covered during family visits. One detainee was told to ask specific questions of his wife, in effect acting as a surrogate interrogator of his own wife, so that Special Branch officers could record the information:
Family members often got their first glimpse of the intimidation and coercion that their loved ones suffered when they went in for their first family visit, usually three to four weeks after the arrest.
All of the wives that Human Rights Watch interviewed said that there were multiple Special Branch agents in the room with them when they met their husbands for the first time. Under no obligation to downplay their presence, officers openly took notes on the conversation and even occasionally took pictures. Several Special Branch officers sat behind visiting relatives, so that they were facing the detainee, and detainees often looked to the Special Branch officers before answering questions from family members. Some of the detainees found the intense monitoring too much to take and broke down during the family visit:
Under enormous pressure, detainees often made what to family members seemed to be scripted statements, praising their captors and urging their wives not to take any action on the outside.
Manipulation of detainees before, during, and after family visits is a violation of international standards. Under the Standard Minimum Rules for the Treatment of Prisoners, detainees who have yet to go on trial are allowed regular family visits, subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.141 Urging detainees to tell their family members not to retain a lawyer or speak to the press is not a necessary restriction in the interest of justice, but rather hinders the administration of justice in contributing to the denial of counsel for detainees. The lack of information about their husbands and fathers exacerbated the natural anxiety that family members felt over the arrest of a loved one. The arresting officers often gave family members nonworking phone numbers to call and local officials, when approached after the arrest, often denied any knowledge of the case and refused to help. According to one wife of a detainee:
Many of the wives that Human Rights Watch spoke to reported being almost paralyzed by fear. According to one interviewee:
This initial detention period, in which the detainee was held completely incommunicado and the government refused to give even the most basic information about where the individual was being held, took an enormous toll on the family members. One wife reported that her own health began to suffer after her husband was taken away:
Although the wives of the detainees bore the brunt of the family burden, the children were often deeply affected as well. Some of the mothers told Human Rights Watch that their children were confused over their fathers arrest. Others spoke about children having problems at school. One of the wives of the detainees told Human Rights Watch:
While a family members detention is always stressful, the ISA by design exacerbates the tension by limiting access, keeping the family guessing as to whats going on inside, and, in the case of these detainees, wondering why their loved one has been detained. Because many of the families were single-income households in which only the men worked outside the home, many wives were left impoverished by the detention of their husbands:
The Special Branch also has openly monitored the wives of some of the detainees, occasionally issuing vague warnings and threats to family members. Lack of Judicial ReviewAdministrative detention under the ISA permits the executive branch of government in Malaysia to detain persons indefinitely without meaningful judicial review. International human rights law requires that persons deprived of their liberty be promptly brought before a court and charged. According to the Universal Declaration of Human Rights, [e]veryone 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 any criminal charge against him.146 This basic right, as well as the right to challenge the lawfulness of ones detention, the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, and the right to judicial review of a criminal conviction, are set out in various international instruments.147 Under the ISA the Malaysian judiciary has been systematically excluded from playing any meaningful role in ensuring that those detained are treated in accordance with Malaysian or international law. This exclusion is both de jure, in the form of explicit limitations written into the ISA, and political, in the form of intimidation of judges by the government. Crucially, the government can exercise full discretion over which information it hands over to the courts in ISA-related cases, at least as far as Section 8 detentions are concerned. Under Section 16 of the ISA, the government has a free hand in deciding which information to disclose, and may withhold any information that it views as against the national interest to disclose or produce.148 Beyond the explicit right not to disclose key information relating to a case, the government has also limited the power of the courts to question its actions taken under the ISA under section 8B of the act (see above in The ISA: An Abusive Law). The framework for judicial review of actions taken under the ISA falls well short of international standards, as well as domestic guarantees for the right to habeas corpus under the Malaysian constitution.149 Section 11 of the Act allows for review of all detentions by an executive-appointed Advisory Board. Although it is empowered to review all Section 8 detentions, the Advisory Board has no power to actually free those it determines have been wrongly detained. Instead, it can only make non-binding recommendations to the government about which detainees should be released. The creation of the Advisory Board is mandated not by the ISA, but rather by Article 151 of the Malaysian constitution. Under Article 151, the three-person advisory board is appointed by the Yang di-Pertuan Agong (the Malaysian king, a largely ceremonial post that rotates among Malaysias nine state rulers), who has historically acted on behalf of the executive branch. In practice, the government is free to fill the board with individuals sympathetic to its own needs. Even when the Advisory Board recommends the release of individuals detained under the ISA its views are often ignored by the government. In November and December 2002, for example, the Board recommended the release of five KeADILan activists, Tian Chua, Saari Sungib, Likman Noor Adam, Dr. Badrulamin Bahron, and Hishamuddin Rais. The government simply ignored the Advisory Boards recommendation.150 Although the activists were eventually released in June 2003, there was no indication that the release had anything to do with the views of the Advisory Board. Rather, the government claimed that, on the expiration of the activists two-year detention period, they no longer constituted such a threat to security that their detentions should be renewed. Given the ineffectuality of the Advisory Board, many activists within Malaysia have called for the Board to be eliminated. As P. Ramakrishnan, the head of the civil society group, Aliran, pointed out in the wake of the governments decision to ignore the Boards recommendations to release the KeADILan activists:
It appears that the Board merely allows the government to create the appearance of a review process without any substance. The Boards power is so minimal and its independence so compromised that this review cannot be considered meaningful or particularly useful. All of this is exacerbated by the fact that the Malaysian judiciary is not fully independent. Indeed, it has been subjected to a long campaign of intimidation and interference by the government of Mahathir Mohamed. Many believe that the Malaysian judiciary has never fully recovered from the blows dealt it during the fallout from Operation Lalang, and the memory of this political intimidation, combined with regular threats from the executive, creates a situation in which even suspects with clear-cut evidence of abuses under the ISA have little chance of winning relief.152 As the American Bar Association has noted:
The U.S. government has also criticized Malaysias judiciary for being insufficiently independent:
One attorney told a visiting delegation that:
|