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IV. Violations of Due Process and the Role of the Judiciary under the ISA

I don’t know why my husband is in detention. I want my husband to be charged in court and brought to trial.124

—Wife of ISA detainee

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:

We are being held without trial and have been publicly humiliated and accused with a myriad of unfounded, unproven and unsubstantiated allegations without having a right to be heard or defended in public.  This is a betrayal of us, our family, and the due process of law.  We collectively condemn the actions of the authorities and call upon them to either charge us in court or to release us immediately.125

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 Counsel

The 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 Families

The 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 detainee’s 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 wasn’t 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:

I held his hands and I felt him trembling.  But he smiled at me when he was talking.  He told me “don’t ever take lawyers, don’t ever meet Suhakam [National Human Rights Commission] don’t meet reformasi, don’t meet with JIM.”133  He said don’t meet with lawyers because we don’t have any money.  I asked why and the SB [Special Branch] answered for me: they said that SUHAKAM cannot be trusted. And these lawyers, they just want money and they don’t want to help.134

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: 

They told me that I should tell my wife to drop the case.  They told me that if I get a lawyer, when you fight against the government it is impossible to win.  That I’ll just be detained longer.  But I didn’t say anything to her about it.  They were angry that I didn’t say anything. . . . After my family left, I was scolded by the officers.  They asked me why I didn’t cooperate.135

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:

They told me what I could and could not tell my wife.  Then after that I had to go through a debriefing.  They told me, “You only talk about family matters, don’t tell your wife about your conditions of detention. Don’t tell your wife about the interrogation.  You just talk about your family and that’s it.”136

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:

They dictated me the questions that I should ask when I meet my wife during her visit in the detention. The questions included:

Whether or not my wife and my family hired a lawyer for me.

Whether or not my wife and my family were being interviewed by journalists.

Whether or not my wife and my family have accepted funds from various people.

In order to prove that all my testimonies during the investigation are true, the police asked me to apologize to my wife for the wrongdoing I had committed and to say that that was why I was caught and detained.137

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.

I saw him two weeks later [after he was detained].  He was cold and pale.  He had lost weight.  His hands were cold. He seemed nervous when we were talking.  He was looking at the officers before he answered questions; there were eight of them in the room.  We couldn’t talk about anything – he was too afraid.  He told me not to get involved, not to get a lawyer. Just let him suffer, he said.138

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:

There were six police officers there in the room [when we visited him]. He didn’t say anything.  The police said not to worry.  He was crying and very afraid.  He didn’t want to speak in front of the police.  Whenever he answered questions, he looked to the officers.139

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.

I saw my husband for the first time one month later.  This was at the police station. He was under pressure from the police.  He tried to convince me that everything was OK.  He told me that he sees the doctor once a week, that he was sleeping well, and that the food was good.  Everything was good.140

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:

My first visit was three weeks after he was detained. Before that, we never knew whether he was alive or dead.  The phone number that they gave us was false.

Many of the wives that Human Rights Watch spoke to reported being almost paralyzed by fear. According to one interviewee:  

I didn’t do anything.  I was at a loss.  I didn’t contact any of my friends whose family members had also been taken away.  The awareness wasn’t there, I didn’t know who to contact.  I was worried that if I contacted other friends, it might implicate them.142

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:

Initially I was in shock, I couldn’t eat, I was very worried.  It was very stressful.  I was all alone and no one could advise me.143

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 father’s arrest.  Others spoke about children having problems at school.  One of the wives of the detainees told Human Rights Watch:

I was restless for the first two months. I couldn’t sleep, I wasn’t eating.  The children were also affected. . . . My son’s friends in school taunted him, saying that his father was a terrorist.  He started getting into fights.  One of my daughters had the same thing happen to her.144

While a family member’s detention is always stressful, the ISA by design exacerbates the tension by limiting access, keeping the family guessing as to what’s 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:

Financially we are in a very tough situation.  We have lost income.  I make homemade snacks to earn a living.  That is how we make ends meet. I sell them to local shops and groceries.  We received my husband’s paycheck for a few months after his arrest, but then we received a letter saying that he had been suspended.145

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 Review

Administrative 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 one’s 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 Malaysia’s 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 Board’s 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 government’s decision to ignore the Board’s recommendations to release the KeADILan activists:

If the government cannot honour the decision of the Advisory Board, if it continues to show scant respect to the rule of law, then what is the point in having the Advisory Board?  What purpose is served in going through this charade?  Let’s scrap this meaningless and perverse provision.  The Advisory Board comes across as nothing more than a farcical façade of democracy which makes a mockery of justice.151

It appears that the Board merely allows the government to create the appearance of a review process without any substance.  The Board’s 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:

[T]here is a widespread perception among senior members of the legal profession and among NGOs that in those cases in which the Government has an interest, the judiciary is not independent.  This is either because it is leaned on directly or indirectly by the Government or because it knows what the Government wants and is simply too intimidated in the light of past experiences.  It seems that this perception is also held by members of the general public.153

The U.S. government has also criticized Malaysia’s judiciary for being insufficiently independent:

The Constitution provides for an independent judiciary; however, government action, constitutional amendments, legislation, and other factors undermined judicial independence and strengthened executive influence over the judiciary.154

One attorney told a visiting delegation that:

The lack of judicial independence in this country is due to a lack of understanding of the proper role of the judiciary.  Judges in this country see themselves as nothing more than an arm of the executive branch.  They see their job as upholding the judgment of the executive.155 

While the right to a hearing is crucial, it becomes meaningless unless the reviewing body is impartial and able to fully engage in the case without fear of retribution.  Under the Basic Principles on the Independence of the Judiciary, the government has a duty to protect the independence of the judiciary156 and to allow judges to decide the cases before them impartially, without fear of interference.157  Generally speaking, persons arrested have “the right to be tried by ordinary courts or tribunals using established legal procedures,” which calls into question the use of specially created Advisory Boards to review ISA detentions.158

Threats to Deter Legal Action

The Malaysian authorities go to great lengths to keep ISA detainees from asserting even those weak protections they are afforded under Malaysia’s legal system.  Many detainees and their families told Human Rights Watch that official intimidation deterred them from immediately challenging the government’s detention order.  Special Branch interrogators regularly told detainees that getting a lawyer would only increase the likelihood that their detentions would be renewed under section 8.  According to one of the wives of the detainees, taking a lawyer was often seen as counter-productive:

My husband told me that he will be in more trouble if we get a lawyer. He told me that if we challenge the government, we can’t win.159

Many of those now in detention fear that the government’s decision over whether to let them go will be negatively affected by taking a lawyer.  Some have decided to wait out their two-year detention orders before mounting any legal challenge:

They told him, if you cooperate with us, then we will release you within two months.  He felt cheated, because they didn’t follow through on their promise.  Now our plan is to wait until the two-year detention order runs out and then see what happens.  If his detention is renewed, we might get a lawyer.160

Others were dissuaded from taking a lawyer by seeing fellow detainees go to court and fail. One wife specifically mentioned the Nasaruddin case, in which the court ordered the release of an ISA detainee who was immediately rearrested by the authorities:

I never thought about getting a lawyer. . . . When Nasaruddin was released and rearrested we gave up hope on that front.  My husband comes up for renewal in June.  My husband mentioned to me today that his detention might be extended.  Perhaps another year or so.  But I hope that he will be let out in June.161 

The message that a case like Nasaruddin sends is a troubling one: even if an ISA detainee can get into court and convince the judge to take action, the government will still thwart the court’s order.  Beyond official warnings not to take legal action, the Nasaruddin case discourages detainees from challenging their detention for the simple reason that they may believe that doing so will be futile, since the government will merely detain them again regardless of what the court may say.

[124] Human Rights Watch interview with FH, Kuala Lumpur, December 2003.

[125] Press Statement of 31 ISA detainees, September 19, 2003, on file with Human Rights Watch.

[126] Ibid.

[126] Malaysian Constitution, Article 5(3). Article 5(2) guarantees the right of habeas corpus: “Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.”

[127] Two recent court decisions, perhaps recognizing the importance of the initial sixty-day period, have attempted to re-invigorate the legal right to counsel during the initial detention. In Mohamad Ezam bin Nor and Others v. The Chief of Police (2002-4 M.L.J. 449), the Federal Court held that the police decision to forbid access to an attorney was in fact a violation of Article 5(3) of the Constitution. A subsequent case, Nasharuddin bin Nasir v. Kerajaan Malaysia and Others (2002-4 M.L.J. 617), saw the court once again assert its right to review the decision of the government to deny an ISA detainee access to counsel. When the police failed to explain the grounds for denying access to ISA detainee Nasharuddin bin Nasir, the court found the denial in bad faith, and ordered that the detainee be allowed to meet with his attorney. Yet that meeting, scheduled for June 12, 2002, never took place: when the attorneys tried to meet with their client the day after the court’s decision was handed down, they were met with the news that he had been sent to the hospital for treatment of a medical problem. Perhaps not coincidentally, the government also chose to issue a Section 8 detention order for Nasir on that same day.

[128] ICCPR, article 14(3)(d). The same article also guarantees the right to be supplied with legal counsel free of charge if the accused cannot pay for it himself.

[129] Basic Principles, article 7.

[130] Basic Principles, article 8.

[131] Human Rights Watch interview with CQ, Kuala Lumpur, December 2003.

[132] Human Rights Watch interview with JS, Kuala Lumpur, December 2003.

[133] JIM, or Jamaah Islah Malaysia, is an Islamic NGO that does charity work in Malaysia.

[134] Human Rights Watch interview with JS, Kuala Lumpur, December 2003.

[135] Interview with TY, Kuala Lumpur, December 2003. Others still in detention have reported being given similar orders. One current detainee, Mohidin bin Shari, wrote in an affidavit smuggled out of Kamunting that “they instructed me not to tell my wife what transpired during interrogation.” Affidavit of Mohidin bin Shari, on file with Human Rights Watch. 

[136] Human Rights Watch interview with ex-ISA detainee WK, Kuala Lumpur, December 2003.

[137] Affidavit of Mat Sah bin Mohamad Satray, on file with Human Rights Watch.

[138] Human Rights Watch interview with XV, Kuala Lumpur, December 2003.

[139] Human Rights Watch interview with BD, Kuala Lumpur, December 2003.

[140] Human Rights Watch interview with RW, Kuala Lumpur, December 2003.

[141] Standard Minimum Rules, article 92.

[142] Human Rights Watch interview with UL, Kuala Lumpur, December 2003.

[143] Human Rights Watch interview with FH, Kuala Lumpur, December 2003.

[144] Human Rights Watch interview with AZ, Kuala Lumpur, December 2003.

[145] Ibid.

[146] UDHR, article 10.

[147] See ICCPR, articles 9 & 14; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles 11 & 32.

[148] ISA, Article 16.

[149] Article 5(2) of the Malaysian Constitution states: “Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.”

[150] P. Ramakrishnan, “Scrap the ISA Advisory Board,” Aliran media statement, March 10, 2003.

[151] Ibid.

[152] International Bar Association, Justice in Jeopardy: Malaysia in 2000, p. 63.

[153] Ibid.

[154] U.S. State Department, 2002 Country Reports on Human Rights Practices (Malaysia), Sect. 1(e).

[155] Fritz, Unjust Order, p. 84.

[156] Principle 32(1).

[156] Basic Principles on the Independence of the Judiciary, article 1.

[157] Ibid, article 2.

[158] Ibid, article 5. Article 5 further states that “(t)ribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.”

[159] Human Rights Watch interview with LM, Kuala Lumpur, December 2003.

[160] Human Rights Watch interview with PT, Kuala Lumpur, December 2003.

[161] Human Rights Watch interview with YC, Kuala Lumpur, December 2003.

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