AS this Malaysian government’s actions leading to the abolition of mandatory death penalty and imprisonment for natural life are applauded, Malaysians Against Death Penalty and Torture (Madpet) calls for the immediate repeal of the even more draconian detention without trial (DWT) laws, such as the Prevention Of Crime Act 1959 (Poca), Prevention Of Terrorism Act 2015 (Pota) and the Dangerous Drugs (Special Preventive Measures) Act 1985.
As there is no trial, the victims of DWT laws will never ever be sentenced to death or natural life imprisonment for the crimes the government allege that they have committed.
These DWT laws ignore the presumption of innocence until proven guilty after a fair trial, where accused persons have a right to defend themselves and the judge finally decides whether one is guilty or not.
Article 11 of the Universal Declaration of Human Rights states: “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to the law in a public trial at which they have had all the guarantees necessary for their defence.”
Anyone, including the innocent, can be victim of any DWT laws, as these Malaysian laws do not even allow victims access to court to challenge the reasons used to justify their detention or restrictions.
Section 15B(1) of Poca, where similar provisions are in all DWT laws, states:
“There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the board in the exercise of its discretionary power in accordance with this act, except in regard to any question on compliance with any procedural requirement in this act governing such act or decision.”
This means you cannot challenge or question the alleged reasons or justifications as to why you have been arrested, detained or restricted indefinitely by DWT laws, only whether the proper procedure has been followed by the authorities.
Double punishment for crimes
Section 17 of Poca states:
“Any registered person who is convicted of any offence committed after the date of the entry of his name on the Register under the provisions of any law specified in the Second Schedule shall be liable to imprisonment for a term of twice as long as the maximum term for which he would have been liable on conviction for that offence, and also to whipping.”
This includes some offences under the Penal Code, Societies Act and other laws.
For example, for the Section 323 Penal Code offence of “…voluntarily causing hurt, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to two thousand ringgit or with both...”
The person whose name has been registered under Poca will be facing the risk of double the sentence provided in law.
Noting the fact that persons registered under Poca have no way of challenging the reasons for the arrest, detention, restriction and even entry into the Register, it is most unjust and in violation of the principle in Article 8(1) of the federal constitution.
Article 8(1) states: “All persons are equal before the law and entitled to the equal protection of the law.”
On conviction of a crime, everyone should be sentenced in accordance with the sentence provided in law for that crime. To be liable to higher or double sentences is simply unjust.
Even though, for some time now, since the abolition of the infamous Internal Security Act (ISA), no prominent persons like Karpal Singh, Datuk Seri Anwar Ibrahim, Mohamad Sabu, Tan Sri Abdul Hadi Awang, Irene Xavier or Theresa Lim Chin Chin have been arrested, detained or restricted under DWT laws, many persons continue to be victims of these DWT laws and we cannot ignore the need to speedily repeal all DWT laws.
In March 2022, a Crime Prevention Board member under the Home Ministry revealed that from April 2014 until March 10 2022, action had been taken against 10,012 individuals using Poca.
A total of 2,673 individuals were placed under the detention order, another 6,537 individuals were under the surveillance order, and 802 individuals were released.
As of the end of February 2022, a total of 425 individuals are still placed under the detention order while another 2,166 individuals are still under surveillance orders.
He also reportedly said that “…based on the 2021 statistics, a total of 1,190 people had action taken against them under Poca compared with 1,968 in 2020 in several areas including Simpang Renggam, Pokok Sena, Bentong and Bintulu. He said most of the cases involved drug-related crimes and criminal fraud through the Internet…”
In March 2023, a media report stated, “…on Poca, Saifuddin (Home Minister Datuk Seri Saifuddin Nasution Ismail) said that 132 individuals were detained, of which 67 were Malays, 13 Chinese, 38 Indians, 13 of other races and one foreigner. He said those detained were between 19 and 59 years old…”
Poca, originally for violent crimes committed by triads and gangs, has since been amended. It can be applied broadly even for all penal code offences suspected to be committed by more than one.
DWT laws helps avoid proving guilt?
In the recently disclosed 2019 Royal Commission of Inquiry Report On The Discovery Of Transit Camps And Graves At Wang Kelian, which confirmed the deaths of about 114 persons, it was stated that before 2015, the police did not bring many cases to court for human trafficking prosecution, as Poca was used to take action against them.
This is possible as Poca now is so broad and can be used for a variety of crimes.
Hence, DWT laws can even be used to “protect” even criminals, to deny victims of crime closure, and even the possibility of being compensated by convicted criminals.
How many murderers are under DWT laws, who if charged and convicted in court would face the death penalty if convicted – who now allows them to walk free after being detained for a couple of years?
Has the DWT laws caused law enforcement to get lazy, as they do not have to thoroughly investigate to be able to convince the court of the guilt of the accused if they elect to use Poca and other DWT law?
Are there cases where bribes were involved to get law enforcement to use DWT, rather than go for a fair trial, where there may be a risk of other truths being revealed during the trial, and the possibility of higher sentences for the guilty?
The guilt of any criminal must be proven in court, and only the courts must have the power to punish vide the sentences provided for the respective crimes in Malaysia.
Extrajudicial punishment imposed by the administration or any other administrative Boards must end. Only the courts and judges determine guilt and should be the only ones allowed to impose punishment on a person convicted of a crime.
Noting that the next parliamentary session will be from May 22 to June 15, Madpet calls on the Malaysian government to table the Bills that will lead to the abolition of DWT laws. The session thereafter will be in October, which is a long way.
Madpet reiterates the call for a speedy repeal of Sosma [Security Offences (Special Measures) Act 2012], Sedition Act, Societies Act and all other draconian laws. – The Vibes, April 30, 2023
