<<previous | index | next>> IV. The Emergency Ordinance: A Litany of Human Rights ViolationsUnder the Emergency Ordinance some suspects have been subjected to torture and ill-treatment, held in poor detention conditions, held incommunicado for up to sixty days and denied access to counsel and family members. Beatings and Ill-TreatmentSeveral former EO detainees told Human Rights Watch that they were beaten or otherwise physically mistreated by police seeking to extract confessions. Mohan, a former EO detainee who was detained by the police for his alleged involvement in a robbery, said that during his initial sixty-day detention (a period when, as detailed below, detainees typically are held incommunicado): They wanted me to confess. They tried their ways. I was ordered to drink urine and to lick the policemans shoes. The police beat me on the soles of my feet with a rubber hose.32 When asked why the soles of the feet were hit, the former detainee responded, It leaves no marks.33 Mohan was sent to Simpang Renggam for two years and then upon release ordered two years in restricted residence. Tamarai, who was detained in Simpang Renggam for over one year and at the time of our interview was in restricted residence, described how he was mistreated during his sixty-day EO detention in a police remand center:
On the reasons why the police resort to physical abuse, a former detainee explained: They [the police] beat you to get a confession. I was willing to confess, but they want a statement to their liking. You finally admit to their version of facts, so they stop beating you.35 Detainees may also be subject to abuse at the Simpang Renggam detention center. The respected Malaysian human rights organization Suara Rakyat Malaysia (Suaram) has received complaints that wardens routinely beat detainees held in Simpang Renggam.36 Suaram, like other non-governmental human rights organizations, however, is denied access to Simpang Renggam, thereby making it difficult to interview EO detainees. A lawyer representing EO detainees told Human Rights Watch:
Allegations of torture and ill-treatment of detainees held in police remand centers under laws such as the ISA and Emergency Ordinance have been acknowledged by the government-appointed Royal Commission. The Commission noted:
The Commission received oral and written complaints describing beatings, and instances of psychological and sexual abuse from human rights NGOs, family members of detainees, and detainees themselves. The sheer number of such reports warrant concern, the Commission concluded.39 International law unequivocally prohibits torture and all cruel, inhuman, or degrading treatment or punishment. States are obliged to investigate all credible reports of torture and inhuman treatment. Article 5 of the Universal Declaration of Human Rights sets out the prohibition on torture and other forms of mistreatment.40 The International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture) reaffirm this prohibition.41 The ICCPR also mandates that persons in detention be treated with humanity and with respect for the inherent dignity of the human person.42 Although Malaysia is not a party to the ICCPR or the Convention against Torture, the ban on torture and other mistreatment is a fundamental principle of customary international law that applies at all times and in all circumstances. Denial of Access to Counsel and Family and Psychological Impact of Indefinite DetentionEO arrests are shrouded in secrecy. During the initial sixty-day period of detention, suspects are given vague grounds for their detention. They typically are denied access to counsel and contact with their family members. Most detainees family members are not told where their relative is being held or even that they have been arrested at all. One former detainee who was detained for sixty days and then ordered to spend two years in restricted residence told Human Rights Watch:
Another former detainee, who was denied access to counsel during his initial sixty days of detention, began crying as he recalled:
Another former detainee told Human Rights Watch that although he was denied access to counsel, he was visited by his wife after twenty-seven days during the initial sixty-day period of detention.45 The right of access to counsel is guaranteed under the Malaysian Constitution. Under article 5(3), 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.46 Prior to 2002 Malaysian courts had narrowed this right by finding that the right cannot be exercised immediately after arrest if it impedes police investigation, 47 but in that year a Federal Court decision found that denial of rights to counsel during the initial sixty-day period was a clear violation of article 5(3).48 In practice, as described above, authorities continue to prohibit any form of communication between most EO detainees and legal counsel during their initial sixty days in detention. The ICCPR guarantees an accused the right to defend himself in person or through legal assistance of his own choosing.49 The U.N. Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, approved by the U.N. General Assembly in 1988, guarantees the right to meet with counsel while in detention, and the right to be visited and communicate with members of ones family.50 Similarly, the U.N. Basic Principles on the Role of Lawyers guarantees the right to counsel and specifies that a detainee should have access to an attorney as soon as practicable after arrest and in any case not later than forty-eight hours from the time and arrest of detention.51 Successive Remand Orders Followed by EO DetentionMalaysias Criminal Procedure Code provides some safeguards against arbitrary detention. The CPC requires the police to bring a suspect detained without a warrant before a magistrate judge within twenty-four hours.52 If the police are unable to complete an investigation, they must apply for a remand detention order renewable for up to fifteen days, including the day of arrest.53 As a way of getting around the fifteen-day limit, police sometimes take the accused person before a different magistrate judge and request remand for investigation into another offense. This tactic is then repeated several times. A Malaysian human rights activist told Human Rights Watch that this tactic is commonly referred to as chain smoking orders or road shows.54 He further explained, it is used by the police to continue investigation beyond the authorized remand order.55 Chain smoking orders are related to the Emergency Ordinance because when police fail to collect evidence after a few rounds of remand orders, they often seek an EO order to detain the suspect for an additional sixty days. The Malaysian Bar Council, which interviewed eight EO detainees in November 2004 in Simpang Renggam, similarly concluded that most of [the EO detainees] prior to their detention order have been held in remand for 60 or more days under chain smoking orders.56 For instance, Samsudin told Human Rights Watch that he had been taken to four different jurisdictions and detained under successive remand orders for 143 days by the Malaysian police for his alleged involvement in robbery offenses. After Samsudins arrest on December 23, 1999, he was taken before a magistrate judge in Alor Setar and a remand order for a period of nine days was obtained by the police. Samsudin, however, was not released at the end of the ninth day, but was held in police custody continuously in nine different police stations within the states of Kedah, Pulau Pinang, and Perak for an additional 134 days. Throughout this period he was denied access to counsel. He was then detained for further investigation for an additional sixty days under the Emergency Ordinance, and then ordered to spend two years in restricted residence.57
Table 1: Samsudins Saga: Number of Days in Remand and Location of Detention58
SUHAKAM Finds Successive Remand Orders a Violation of the Criminal Procedure CodeIn the case of eighteen-year-old S. Hendry, documented by SUHAKAM following a public inquiry in 2006, the police sought four successive remand orders before finally detaining the suspect under the Emergency Ordinance for alleged involvement in two murder cases and an armed robbery case. He was never charged in any of the cases.59 First Remand Order:S. Hendry was arrested for involvement in a murder case on August 22, 2005, and remanded for ten days from August 23 to September 1, 2005, in Kajang. S. Hendry was detained at the Kajang police station lock-up during that time. S. Hendry was not charged in court due to insufficient evidence. Second Remand Order: On September 2, 2005, a different magistrate judge issued a second remand order against S. Hendry for S. Hendrys alleged involvement in a second murder case in Kajang for ten days from September 2 to September 11, 2005. S. Hendry was detained at the Kajang police station lock-up during that time. The Deputy Public Prosecutor did not charge S. Hendry due to insufficient evidence. Third and Fourth Remand Orders: Having found insufficient evidence to charge S. Hendry in a murder case, the police sought a remand for the suspects alleged involvement in an armed robbery case in Mantin. A magistrates court in Seremban issued two remand orders, one from September 12 to September 16, 2005, and a second order from September 16 to September 20, 2005. S. Hendry spent nine days in Seremban police station lock-up. S. Hendry was not charged in relation to the armed robbery case. At the end of the twenty-nine days of remand, S. Hendry on September 20, 2005, was ordered to be detained for sixty days under section 3(1) of the Emergency Ordinance, and was subsequently ordered detained for two years under section 4(1) of the Emergency Ordinance for his alleged involvement in a murder case.60 Notably, as reported in the SUHAKAM report, the initial EO detention order was dated September 16, 2005the day the third remand order was set to expire. On November 18, 2005, S. Hendry was transferred to Simpang Renggam from the Kajang Police lock-up. S. Hendrys dead body was discovered, hanging from the ceiling in his cell, by prison officials on November 19, 2005. SUHAKAM recommended that section 117 of the Criminal Procedure Code be complied with strictly and that a remand order be granted only if the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded.61 The Findings of the Royal Commission: A Damning Indictment of Government Indifference to Civil Liberties The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police found a pattern of abuse of remand procedures and road shows by the police. Based on its own inquiries, it found:
Re-Arrests Upon Court Ordered ReleaseA corollary of the right to liberty is the right to challenge the legality of detention. In 1989, the government amended the Emergency Ordinance to explicitly limit the court from reviewing the merits of such detentions. Section 7(C) of the Emergency Ordinance prevents courts from reviewing the merits of EO detentions, thus leaving detainees without any effective recourse to challenge their detention. The law does leave room for review of procedural requirements. Some lower courts have declared Emergency Ordinance detention orders invalid on procedural grounds and ordered detainees to be released. The government, however, usually re-arrests such detainees on the same charges as before. Such actions show that judicial review of procedural defects does very little to protect against abuses, leaving EO detainees with almost no recourse against wrongful arrest and detention. On May 29, 2005, the New Sunday Times reported that more than forty-eight EO detainees had been released in 2005 due to successful habeas corpus petitions.65 The government responded swiftly and on May 31 the Inspector General of Police announced that while fifty-six detainees had been released, forty-eight had been re-arrested.66 Then Deputy Minister of Internal Security, Datuk Noh Omar, announced that lack of senior federal counsel to handle such cases had led to this release of fifty-six criminals, and that additional counsel would be assigned to such cases.67 The re-arrest of EO detainees released on successful habeas corpus petitions is not a new phenomenon. A lawyer representing EO detainees told Human Rights Watch:
He continued:
For many, filing a procedural challenge to detention under the EO is a waste of resources. An NGO activist told Human Rights Watch, The toll on the families is immense. They struggle to come up with the money to pay the legal fees for the habeaspetitions and then their relative is re-arrested. So the RM 15,000 [U.S.$4,061] is a waste.70 The Malaysian governments abuse of the law has gone so far that it now detains people under the EO for the same offenses the government has been unable to prove at trial. In October 2005, the New Strait Times reported that eight individuals were acquitted and ordered released at the end of a murder trial because the prosecution was unable to prove its case.71 Rather than release the men or appeal the courts ruling to a higher court, the government re-arrested them outside the courtroom under the Emergency Ordinance for the same offense for which they were acquitted by the court.72 The principle of non bis en idem (double jeopardy)the right of a person once tried or punished not to be subject to successive punishment or prosecutions for the same offenseis an essential due process right under international law. The ICCPR states, No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.73 Case Studies of Re-Arrest after ReleaseIn 2003, the police arrested six men under the Emergency OrdinanceMohd Haniff bin Mohd Kassim, Thiagarajan Kamalanathan, Sivanathan Subramaniam, Suppiah Supramanian, S. Slvarthinam Munsamy, and Gunasingam Kolasegaramfor their alleged involvement in extortion activities. Rather than charge them under Malaysian criminal law and allow a court to decide their guilt or innocence after weighing the evidence, the six were initially detained for sixty days under the EO and subsequently detained for eighteen months to two years. Each of the six challenged their detention on procedural groundsthe only ground allowed by lawin habeas corpus petitions. On September 10, 2003, the court in Shah Alam Selangor ordered their release deeming their detention orders invalid because the government failed to comply with the procedural requirements of the EO.74 However, a month after their release, five of the six were re-arrested on the very same charges alleged in the original detention order, and were ordered to serve another two years in Simpang Renggam by Datuk Noh Omar, then Deputy Minister of Internal Security. 75 Mohd Haniff bin Mohd Kassim was ordered to spend two years in restricted residence in Kelantan. Case of Thiagarajan Kamalanathan, Sivanathan Subramaniam, and Suppiah SupramanianThiagarajan Kamalanathan, Sivanathan Subramaniam, and Suppiah Supramanian were each subjects of a detention order for eighteen months starting on October 20, 2003. They were accused of being members of a gang active in Pandamaran, Klang, Selangor state and involved in criminal activities.The police presented detailed facts in the EO detention order but, instead of charging them, detained them under the EO.76 Their detentions were based on the following same facts, repeated verbatim in each of their EO detention orders:
Human Rights Watch has copies of similar detention orders in the cases of S. Slvarthinam Munsamy and Gunasingam Kolasegaram, both accused of extortion in their detention orders, both ordered released by a court due to procedural defects in the detention order, and both re-arrested. This case suggests that, when it wishes, the government does not prosecute suspects even when it has detailed facts, and instead uses the EO to incarcerate them without having to prove the charges. Moreover, the re-arrests indicate that judicial review of procedure alone does not provide a meaningful safeguard.
Psychological Impact of Indefinite DetentionThe Malaysian government has not made public the names of all Emergency Ordinance detainees nor the length they have been detained. The Malaysian Bar Council, however, reports that EO detainees are at times detained without trial for up to eight years.79 The indefinite nature of the detention has serious psychological implications for a detainee. A lawyer for several EO detainees told Human Rights Watch:
Family members also suffer emotional strain due to the indefiniteness of EO detentions. A lawyer whose clients are in detention told Human Rights Watch:
Indefinite detention has also been noted as a contributing factor to the alleged suicide of eighteen-year-old EO detainee S. Hendry. He had spent eighty-eight days in police lock up and was sent to Simpang Renggam for two years with possible indefinite renewal for his alleged involvement in a murder. SUHAKAM concluded that the fact that S. Hendry could have been told of possible renewals of his detention order is a relevant factor in determining the cause of his death.82 Internal Exile Without Charge or TrialThe Emergency Ordinance allows the minister of internal security to control the movement of persons who the minister believes are acting in a manner prejudicial to public order and order them to remain in restricted residence for two years.83 This is often a form of internal exile whereby the government restricts a persons freedom of movement, place of residence and work, and requires weekly check-ins with the police. Human Rights Watch spoke to detainees who described how they were ordered to live in remote parts of Malaysia, dropped off by the police, and given no assistance in finding a job or housing or initial monetary allowance. After serving 203 days in detention without any charges being proved against him, Samsudin, discussed above, was ordered to be in restricted residence for two years.84 He described to Human Rights Watch the place he was sent to work and live:
Tamarai, a Tamil who was detained under the EO for sixty days, transferred to Simpang Renggam for seven months, released on successful procedural challenge to his EO detention, immediately re-arrested on the same allegations of extortion, detained for sixty days, and then ordered to spend two years in restricted residence, told Human Rights Watch:
[32] Human Rights Watch interview with Mohan (pseudonym), Kuala Lumpur, July 9, 2005. As indicated here and in several footnotes below, we have used pseudonyms in some cases to protect the identity of interviewees who wished to remain anonymous. [33] Ibid. [34] Human Rights Watch interview with Tamarai (pseudonym), Kuala Lumpur, July 9, 2005. [35] Human Rights Watch interview with Mohan (pseudonym), Kuala Lumpur, July 12, 2005. [36] Suaram, Simpang Renggam Hunger Strike Ends, November 26, 2004 [online] http://www.suaram.net/display_article.asp?ID=145 (visited October 6, 2005). [37] Human Rights Watch interview with lawyer (name withheld), Kuala Lumpur, July 14, 2005. [38] Royal Commission Report, ch. 4, para. 5.5.2(ii)(d). [39] Ibid., ch. 4, para.5.5.2(iii)(a). [40] Universal Declaration of Human Rights, U.N. General Assembly Resolution 217A (III), December 10, 1948, art. 5. [41] ICCPR, art. 7; Convention Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85 art. 3. The United Nations Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment similarly prohibits torture, cruel, inhuman degrading treatment of punishment. U.N. General Assembly Resolution 43/173 (1988), principle 6. [42] ICCPR, art. 10. [43] Human Rights Watch interview with Samsudin (pseudonym), Kuala Lumpur, July 9, 2005. [44] Human Rights Watch interview with Tamarai (pseudonym), Kuala Lumpur, July 10, 2005. [45] Human Rights Watch interview with Mohan (pseudonym), Kuala Lumpur, July 12, 2005. [46] Federal Constitution of Malaysia, art. 5(3). [47] See, e.g., Ooi Ah Phua v. Officer-in-Charge of Criminal Investigations Kedah/Peralis, [1975] 2 MLJ 198; Hashim bin Saud v. yahaya bin Hashim, [1977] 2 MLJ 116. [48] Mohamad Ezam in Mohd Noor v. Ketua Polis Negara, [2002] 4 MLJ 449. [49] ICCPR, art. 14. [50] U.N. Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment similarly, U.N. General Assembly Resolution 43/173 (1988), principles 18 and 19. [51] U.N. Basic Principles on the Role of Lawyers, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), art. 7. [52] Criminal Procedure Code of Malaysia, sec. 28(1). [53] Ibid., sec. 117. [54] Human Rights Watch interview with S. Arutchelvan, Suaram, Kuala Lumpur, July 4, 2005. [55] Ibid. [56] Malaysian Bar Council, Simpang Renggam Report, May 15, 2005, p. 2, copy on file with Human Rights Watch. [57] Human Rights Watch interview with Samsudin, Kuala Lumpur, July 9, 2005. [58] Ibid. [59] The facts of this case are all from SUHAKAM, Report of SUHAKAM Public Inquiry into the Death in Custody of S. Hendry, February 17-18, 2006, ch. 2 (S. Hendry Inquiry). [60] Ibid., ch. 2. [61] Ibid., Recommendations, para. 2. The body also recommended that the chief justice issue a circular to magistrates requiring them to take into consideration the entire remand period inclusive of different remand orders and suggested amendments to section 117 to ensure that the magistrate who makes the remand order be satisfied that there is sufficient basis to link the suspect with the offense based on the material produced by the police. [62] Royal Commission Report, ch.4, challenge 4, para. 5.5.2(i)(a). [63] Ibid., para. 5.5.2.(i)(h). [64] Ibid. [65] 45 Thugs Released, New Sunday Times, May 29, 2005. [66] Internal Security to Get 20 More Senior Federal Counsel, Bernama Daily Malaysian News, May 31, 2005. [67] Ibid. [68] Human Rights Watch interview with lawyer (name withheld), Kuala Lumpur, July 14, 2005. [69] Ibid. [70] Human Rights Watch interview with Selvarm, Suara Warga Pertiwi, Kuala Lumpur, July 12, 2005. [71] Sharanjit Singh, Eight Freed of Murder Charge, Freedom Short-lived with Arrest, New Straits Times, October 12, 2005. [72] Ibid. [73] ICCPR, art. 14(7). [74] Judicial Orders of Mohd Haniff bin Mohd Kassim v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-12 Tahun 2004, September 10, 2004; Thiagarajan Kamalanathan v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-12 Tahun 2004, September 10, 2004; Sivanathan Subramaniam v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-8 Tahun 2004, September 10, 2004; Suppiah Supramanian v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-10 Tahun 2004, September 10, 2004; S. Slvarthinam Munsamy v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-12 Tahun 2004, September 10, 2004; and Gunasingam Kolasegaram v. Menteri Dalam Negeri Malaysia, Dalam Makamah Tinggi Malaya di Shah Alam, Permohonan Jenayah No. 44-12 Tahun 2004, September 10, 2004. Copies on file with Human Rights Watch. [75] Emergency Ordinance Detention Orders of Thiagarajan Kamalanathan, Sivanathan Subramaniam, and Suppiah Supramanian, S. Slvarthinam Munsamy, and Gunasingam Kolasegaram, dated October 7, 2004, copies on file with Human Rights Watch. [76] Emergency Ordinance Detention Orders of Mohd Haniff bin Mohd Kassim, Thiagarajan Kamalanathan, Sivanathan Subramaniam, and Suppiah Supramanian, S. Slvarthinam Munsamy, dated October 20, 2003, and Emergency Ordinance Detention Order of Gunasingam Kolasegaram, dated December 3, 2003. Copies on file with Human Rights Watch. [77] Ibid. [78] The account below is based on Human Rights Watch interview with S. Arutchelvan, Suaram, Kuala Lumpur, July 4, 2005. See also 300 Detainees Go on Hunger Strike in Malaysia, Agence France Press, November 11, 2004; Neville Spykerman, Hunger Strike by Inmates Continues, New Strait Times, November 13, 2004; 235 Detainees Stage Hunger Strike, Bernama Daily Malaysian News Agency, November 12, 2004; 15 Detainees End Hunger Strike, New Sunday Times, November 12, 2004; Suaram, Simpang Renggam Hunger Strike Ends as Last Detainee Stop Hunger Strike, November 26, 2004. [79] Malaysian Bar Council, Simpang Renggam Report, p. 3. [80] Human Rights Watch interview with lawyer (name withheld), Kuala Lumpur, July 14, 2005. [81] Human Rights Watch interview with lawyer (name withheld), Kuala Lumpur, July 14, 2005. [82] SUHAKAM, S. Hendry Inquiry, chap. 9. SUHAKAM found that Simpang Renggam does not have a policy on suicide prevention and lacked experienced staff to deal with detainees with suicidal behavior. [83] Emergency Ordinance, sections 4A(1) and 4(1). [84] Human Rights Watch interview with Samsudin, Kuala Lumpur, July 9, 2005. [85] Ibid. [86] Human Rights Watch interview with Tamarai (pseudonym), Kuala Lumpur, July 10, 2005.
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