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VI. The Malaysian Government’s Indefensible Support for the Emergency Ordinance

The Malaysian government publicly admits that the Emergency Ordinance is used to detain criminal suspects when the government has insufficient evidence to try them under existing criminal law. As already noted, former Deputy Internal Security Minister Datuk Noh Omar in 2004 summed up the practice explicitly, saying: “If there is insufficient evidence, but the police believe they are involved, then they will be detained under the Public [Emergency] Ordinance.”¹²⁰

Even the government-appointed Royal Commission recommended the repeal of the Emergency Ordinance, explaining in 2005 that, “it [the Emergency Ordinance] has outlived its purpose and in some instances has facilitated the abuse of fundamental liberties.”¹²¹ Notably, the entire Commission recommended the repeal of the Emergency Ordinance, including Tun Hanif Omar, the former Inspector General of Police. The Commission “noted” the following allegations in the way the Royal Malaysia Police has implemented the Emergency Ordinance:

• The Commission’s inquiry showed that in a number of cases preventive laws were used as a means of detaining persons where sufficient proof could not be ascertained to charge them in open court. Furthermore, detention laws provide a convenient short cut to crime solving instead of rigorous and coordinated investigations. It also reflected weakness in police officers in undertaking high quality evidence-based investigation.¹²²

• In cases where charges under the Dangerous Drug (Special Preventive Measures) Act 1985 and the Emergency Ordinance have been preferred and those charged subsequently acquitted, police have re-arrested and detained them under preventive laws.¹²³

As of July 2006 the Malaysian government has not yet implemented the Commission’s recommendations.¹²⁴ In July 2005 a member of Prime Minister Badawi’s cabinet expressed doubt that the EO would be repealed. Datuk Mohamed Nazri, responsible for parliamentary affairs, told Human Rights Watch that despite the recommendation by the Royal Commission he doubts that the government will repeal the law.¹²⁵ He explained, “The EO protects the society against criminals. The EO prevents the commission of crimes and takes ‘thugs’ off the streets.”¹²⁶

Human Rights Watch recognizes the obligation of the Malaysian government to reduce crime in the country and to deal with criminal syndicates, but the government should prosecute persons who are involved in alleged criminal activity through the normal criminal justice system. The presumption of innocence and due process are not to be applied at the whim of the government. Prime Minister Badawi should take the lead by immediately ordering his ministers to stop using this shadow criminal justice system and then work with parliament to repeal the laws that underpin it.