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I. Summary

On December 9, 2004, . . . I stepped out of my cell without violating any orders. I was handcuffed in the front, my head was forced to bow as low as waist-length, and then I was hauled towards the back of the [cell block]. I was beaten, spat on, and kicked several times. After reaching the back of [that block], I was ordered to sit facing the wall, while handcuffed, and my head was pushed down. There I was insulted, continuously kicked from behind and clubbed on the head with a baton. . . .
We were then taken to [another cell block]. On the way from [a cell block] to [another block] I was handcuffed with my hands at the back and my head was pushed down to waist level. My head was struck with a baton and my eye was hit, injuring it. When I reached room seven of [the cell block], I was continuously beaten and then forced to strip naked, ordered to crawl while entering the room and then my buttocks were kicked and that was how I stumbled inside, naked. My t-shirt and pants were outside the room, which were returned to me later by [the] warden. . . . My left eye continuously bled. I only received eye wash treatment on Sunday, December 12, 2004.
—Statement of Mohamad Faiq bin Hafidh describing events on December 9, 2004, in Kamunting Detention Center.

Held without charge or trial under Malaysia’s draconian Internal Security Act (ISA), Mohamad Faiq bin Hafidh is one of more than twenty-five detainees beaten by prison guards in Kamunting Detention Center on December 8 and 9, 2004. The beatings occurred after detainees in one cell block resisted the unannounced search of their cells on the morning of December 8, and extended to detainees in cell blocks that did not resist the inspection. The spot check was part of an effort by the new director of Kamunting, where most ISA detainees are held, to impose a more rigid disciplinary regime on the detainees.

The government later stated that the search uncovered foldable knives, scissors, metal rods, and badminton rackets turned into weapons and suggested that force was necessary to overcome violent and threatening detainees. According to Deputy Minister of Internal Security Datuk Noh Omar, eight prison guards on December 8 suffered injuries as well. After the detainees were subdued, the guards attacked them in that cell block and, the next day, in other cell blocks. Detainees acknowledge that some detainees resisted the spot checks on December 8, but say that the violence on December 9 was initiated by the guards. They claim that they had no weapons and that the items listed by the government were for handicraft work and all had been approved for possession by detainees.

Eyewitness accounts from the detainees—presented here for the first time—describe prison guards, armed with batons, shields, and riot gear, beating and abusing handcuffed detainees. The physical abuse allegedly extended to detainees who did not resist the search of their cells. Detainees said they were denied immediate medical assistance, although several suffered broken bones and open wounds. In some cases, prison authorities waited until the bruises had healed before they were provided medical assistance. Some detainees and their wives also described being humiliated.

The mistreatment of Kamunting detainees highlights the legal purgatory in which ISA detainees exist. They are detained and treated as criminals, but without ever being charged or convicted. They are stripped of many rights, but have virtually no recourse to the law or court system to show that they do not belong in detention. As documented by Malaysian and international human rights organizations and Malaysian lawyers, ISA detainees have long suffered physical and mental abuse, sexual humiliation, and public vilification without access to a serious complaint mechanism or having the opportunity to defend themselves. Some ISA detainees have been in detention for over four years without any way of knowing how much longer they will remain in custody.

Under the ISA, the government may hold anyone suspected of threatening national security or a number of other vague categories of proscribed activities without charge or trial. Most of the 112 people detained under the ISA are accused of associating with militant Islamist groups; though the government has expanded its use of the ISA to include individuals accused of counterfeiting and forging documents and has threatened to use it against practitioners of religious beliefs deemed “deviant” by the government’s Religious Affairs Department.

The ISA is now forty-five years old. Its provisions violate fundamental international human rights standards, including prohibitions on arbitrary detention, guarantees of the right to due process, and the right to a prompt and impartial trial. It turns the internationally recognized presumption of innocence on its head. The Malaysian government’s consistent misuse of the ISA demonstrates how an unchecked executive system of detention becomes a means of oppression.

Since 1960 the Act has been used by the Malaysian government to silence critics and political opponents of the ruling United Malay National Organization (UMNO). More than ten thousand people have been detained under the ISA, including the former Deputy Prime Minister Anwar Ibrahim. The ISA has repeatedly been criticized by Malaysian human rights groups, the Human Rights Commission of Malaysia, Suruhanjaya Hak Asasi Manusia Malaysia (commonly referred to as Suhakam) and international human rights groups. Until recently, foreign governments also criticized the ISA. Even some members of the government have recently advocated for the release of ISA detainees in detention for over two years.

Since September 11, 2001, and in view of the increasing use of the ISA against suspected Islamist militants, some ISA critics, notably the United States, are now silent on the use of the ISA. A cabinet minister told Human Rights Watch that the U.S. no longer criticizes Malaysia’s use of the ISA because of U.S. detention practices at Guantánamo Bay. Indeed, a senior State Department official, when questioned about the ISA, told Human Rights Watch in December 2003, “With what we’re doing in Guantánamo, we’re on thin ice to push on this.” These sentiments and the U.S. practice of indefinite detention without trial of persons at Guantánamo Bay and United Kingdom’s Prevention of Terrorism Act of 2005, which allow for preventive detention are touted by government officials as a green light to continue to detain individuals indefinitely without charge.

The government admits that detention under the ISA is preventive and that it either cannot or chooses not to prosecute individuals. In October 2001 former Prime Minister Mahathir Mohamed said, “To bring these terrorists through normal court procedures would have entailed adducing proper evidence, which would have been difficult to obtain.” This sentiment continues in the current government of Prime Minister Abdullah Ahmad Badawi. In July 2005, cabinet minister Datuk Mohamed Nazri told Human Rights Watch, “They [ISA detainees] have not committed any crime because ISA is preventive. You cannot, therefore, go to court.”

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 also 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. Notably, it has not shown that the investigation, arrest, and detention of alleged militants could not be handled through existing law enforcement capabilities and the criminal law, which would protect the rights of the accused. Without these safeguards, the Malaysian government cannot be sure that 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.

Prime Minister Badawi has shown no sign of a change in the government’s arbitrary and oppressive use of the ISA. The ISA is so widely feared that it is used not only for its stated purposes––to fight terrorism and other national security threats––but to chill speech, to stifle opposition political activity, and to put pressure on disfavored segments of Malaysian society. The government has thus far ignored recommendations from parliamentary and official government advisory groups and civil society to reign in or repeal the ISA. With a forty-five year history of misuse, it is time for the Malaysian government to repeal the ISA. Malaysia is a country with a developed legal and judicial system that no longer needs the crutch of an antiquated preventive detention system. If an individual has committed a crime the criminal law should be used to prosecute current ISA detainees; the others should be released, subject, of course, to ongoing criminal investigation to the extent that the evidence so warrants.

In 2004 Human Rights Watch published a lengthy report on the ISA, In the Name of Security: Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act, which documented abuses against ISA detainees and identified ways in which the ISA violated international law. This is a follow-up report, based on statements of current ISA detainees provided to Human Rights Watch and interviews with family members of ISA detainees, lawyers, activists, and government officials.

Methodology

Human Rights Watch conducted research for this report in Malaysia in July 2005 and subsequently through email and telephone from New York. We interviewed family members of current ISA detainees, their lawyers, members of SUHAKAM, a cabinet minister, and a member of the opposition Democratic Action Party (DAP). In June and July 2005 Human Rights Watch made official requests to visit Kamunting Detention Center, but these requests were refused. A follow-up request in August 2005 to interview the director of Kamunting, Mr. Yasuhimi bin Yusoff, or a government official knowledgeable about the events in December 2004 was unanswered. Consequently, the government’s account of the events of December 2004 cited in this report are based on reports in the Malaysian press.

The statements by current ISA detainees, cited in this report and made public for the first time, were provided by the detainees’ lawyer to Human Rights Watch. The statements were written soon after the events of December 8 and 9, 2004, and were given to the detainees’ lawyer in June 2005. While we were unable to check these statements against government accounts for the above mentioned reasons, and while the statements are potentially self-serving in important respects, they closely overlap in description of many particulars. The wives of the detainees, who visited their husbands, shortly after the events of December 8 and 9, 2004, also gave similar accounts of what happened to their husbands in December 2004.


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