index  |  next>>

I. Summary

If there is insufficient evidence, but the police believe they are involved, then they will be detained under the Public [Emergency] Ordinance.

—Former Deputy Internal Security Minister Datuk Noh Omar, June 2004.

The Malaysian government has locked away more than 700 individualsat the Simpang Renggam Behavioural Rehabilitation Centre (Simpang Renggam) in Johor. Some have already been detained for more than eight years. None know when they will be released. They are incarcerated not because they were found guilty of a crime and sentenced by a court of law. Instead, they are detained by executive fiat in violation of international and Malaysian law.

This may not seem surprising. Malaysia continues to rely on “emergency” laws created in the 1960s to deal with racial riots and to counter communist insurgency. The infamous Internal Security Act (ISA), is currently being used against suspected Islamist militants on alleged security grounds; the law allows for preventive detention renewable at two-year intervals.¹ But individuals detained at Simpang Renggam, most of whom are alleged to be involved in criminal and gang-related activities, are not held under the ISA. Instead, they are held without public fanfare under the lesser known—and almost unknown outside Malaysia—Emergency (Public Order and Crime Prevention) Ordinance (EO).²

Like the ISA, the Emergency Ordinance is a preventive detention law that allows the government to detain individuals who it—and not a court—deems to threaten public order. Suspects may be held without charge or trial for two years after arrest and the government may then renew the detention indefinitely. Emergency Ordinance detainees and their families have no idea when they will be released. Not only are they presumed guilty by the government, but they often are tried and convicted in the press. Malaysian newspapers, which are largely controlled by the government, refer to Emergency Ordinance detainees collectively as “thugs” and “gangsters” and report as though government allegations have already been proven.

Like ISA detainees, EO detainees exist in a form of extra-legal purgatory. Their liberty depends wholly on the arbitrary and non-transparent decisions of government officials about if and when to release them. International human rights law and the constitutions and criminal justice systems of most countries, including Malaysia, mandate that a person can be incarcerated as a criminal only if a court of law has tried and convicted that person for a criminal offence. Yet the Malaysian government has carved out an exception to this fundamental principle, and on an arbitrary basis locks up some criminal suspects without charge or trial. Such a system of detention violates fundamental human rights to liberty and security of the person, as well as standards governing due process and a prompt and fair trial.

The Emergency Ordinance was enacted in 1969 as a temporary measure to respond to race riots. For the past thirty-seven years, however, the law has been used as a shadow criminal justice system to detain persons without the government having to prove any charges against them.

Emergency Ordinance detainees have extremely limited avenues of redress. Due to amendments to the law in 1989, courts are stripped of the right to review the merits of EO detentions. Detainees may challenge their detention on procedural grounds, but this lone avenue of challenge is of limited use. When detainees file habeas corpus petitions and are ordered released by a court, the government often re-arrests the detainees on the same charges, thus rendering futile any procedural challenges to EO orders. In October 2005 the government ordered the arrest of eight individuals under the EO for the same offense that they had been acquitted of minutes earlier, violating their right not to be tried or punished twice for the same offense (also known as the principle of non bis en idem, or double jeopardy).

The EO is also used to justify the continued detention of persons originally detained under the Criminal Procedure Code (CPC). The CPC allows the police to hold suspects in pretrial detention for up to fifteen days for investigation purposes if they obtain a detention order from a magistrate judge. But the police, in a practice referred to as “chain smoking orders” or “road shows,” obtain successive remand orders for a suspect from different magistrate judges and jurisdictions for alleged involvement in different cases to continue detaining a suspect. Having failed to collect evidence to charge a suspect the police then seek an EO order to continue detention of a suspect for an additional sixty days and then up to two years. In a case documented below, a man named Samsudin was taken to nine different police stations in four states and detained, without access to counsel, for 143 days under successive detention orders by the Malaysian police. He was then detained under the EO for sixty days and banished to a remote village for two years under restricted residence. None of the government’s allegations against Samsudin were tested or proved in court. His punishment was simply ordered by the government.

EO detainees are held incommunicado and denied access to counsel during the initial sixty days of detention. There, many suffer beatings and other ill-treatment and abuse in Police Remand Centers (pre-trial detention centers). Justice Chand Karam Vorah, former prosecutor and a Court of Appeals judge, and a commissioner of the Human Rights Commission of Malaysia, Suruhanjaya Hak Asasi Manusia Malaysia (commonly referred to as Suhakam) suggested to Human Rights Watch that the police likely use the EO to detain criminal suspects when confessions they have obtained from the suspects would be inadmissible because obtained under torture or other form of duress.³

Upon transfer to the Simpang Renggam detention facility, detainees live out their detention in conditions which amount to inhumane or degrading treatment, as those terms are used in international law. The Malaysian Bar Council, the Parliamentary Caucus on Human Rights—comprised of parliamentarians from the ruling United Malay National Organization (UMNO) and the opposition—former EO detainees, and an attorney who represents EO detainees claim that conditions of detention at Simpang Renggam are overcrowded and unhygienic. Former detainees told Human Rights Watch of inedible food infested with worms, limited access to fresh air or exercise, and unhygienic living conditions. Although the government claims that EO detainees are sent to Simpang Renggam for rehabilitation from a life of crime, the hardship and discomfort experienced by detainees in the detention facility belie this claim and only reinforce the punitive nature of detention without charge or trial.

In May 2005 the government-appointed Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (the Commission) concluded that the EO violates international human rights law. It recommended repeal of the EO because “it has outlived its purpose and in some instances has facilitated the abuse of fundamental liberties.”⁴ To date, however, the Malaysian government has shown no sign that it intends to repeal this draconian law.

Human Rights Watch recognizes the responsibility of all governments to fight crime and to deal with criminal gangs and syndicates. But the Malaysian government, like all governments, must not resort to illegal means to address criminal activity. Malaysia has a strong criminal justice system and robust criminal laws. It should deal with alleged criminal acts through its criminal justice system (indeed, it has never offered a credible explanation of why the criminal law and courts would be unable to successfully prosecute cases currently dealt with under the EO). The presumption of innocence must be respected for all persons detained by the government. This means that those held under the EO should be charged or released. In societies governed by the rule of law, guilt or innocence must only be decided by a court of law guaranteeing international fair trial standards.