Suhakam takes gov't to task over Pota

The Human Rights Commission (Suhakam) is taking the government to task for reviving detention without trial under the Prevention of Terrorism Act 2015 (Pota)

While supporting Putrajaya's fight against militancy, Suhakam said such a battle must not come at the cost of decreased human rights.

"The government has an obligation to ensure that the constitutional rights of its citizens are protected by taking positive measures to counter threats of terrorism and extremism.

"(But) such measures must not pose disproportionate challenges to fundamental human rights and the rule of law, and jeopardise the principles of democracy," Suhakam chairperson Hasmy Agam said in a statement yesterday.

Hasmy (left) said there were not enough safeguards against abuse of power to back up the government’s assurance that Pota will not be used to stifle dissent.

This includes the lack of legal representation for suspected terrorists during an inquiry, as well as the inability to seek judicial review.

"The commission thus recommends that the authorities develop an effective, feasible framework for the detention, interrogation and trial of suspected terrorists which would allow the authorities to capitalise on its intelligence agencies to disable suspected terrorist activities," Hasmy said.

He also urged the government to uphold the Universal Declaration of Human Rights and the United Nations International Covenant on Civil and Political Rights.

Pota was passed without amendment in the Dewan Rakyat at close to 2.30am yesterday, after 12 hours of debate.

The Act allows the government to detain suspected terrorists without trial for two years, with a Prevention of Terrorism Board empowered to renew the detention indefinitely.

Opposition lawmakers have dubbed it a revival of the now repealed Internal Security Act.

Source: http://www.malaysiakini.com/news/294604

Malaysia: Scrap Repressive Counterterrorism Bill Proposed Law Restores Indefinite Detention Without Trial

(New York, April 6, 2015) – 

The Malaysian government should withdraw the proposed counter terrorism law now with parliament and ensure future drafts protect fundamental rights, Human Rights Watch said today. The Prevention of Terrorism Act 2015 would reintroduce indefinite detention without trial or judicial review, and violate due process rights in the name of preventing terrorism. Parliament is expected to vote on the bill before the session ends on April 9, 2015.

The draft law contains key elements of the notorious Internal Security Act (ISA), revoked in 2012, which was long used to detain government opponents, dissidents, and others in violation of their basic rights, Human Rights Watch said.

“The draft counterterrorism law is like a legal zombie returned from the grave of the discredited and abusive Internal Security Act,” said Phil Robertson, deputy Asia director at Human Rights Watch. “By proposing this legislation, the Malaysian government is signalling its willingness to return to Malaysia’s past policies of repression.”

The draft law would allow terrorist suspects to be detained for 21 days based solely on the word of a police inspector, extendable for an additional 38 days. During this period, the suspect is not permitted representation by counsel except when his own formal statement is being taken and recorded by the inquiry officer.

The results of the initial inquiry are not presented to a court for a full and fair hearing, but rather to a proposed “Prevention of Terrorism Board” appointed by the Malaysian sultan. If the board is satisfied, based on the Inquiry Officer’s report, that there are “reasonable grounds” for believing that the suspect has engaged in the commission or support of terrorist acts, it may order that the suspect be detained without trial for up to two years. The order can be extended by the board, in two-year increments, for an unlimited period of time. The draft law also expressly precludes judicial review of Prevention of Terrorism Board decisions other than on questions of compliance with procedural requirements. 

The results of the initial inquiry are not presented to a court for a full and fair hearing, but rather to a proposed “Prevention of Terrorism Board” appointed by the Malaysian king, who by convention acts on the advice of the government. Members of the board can be dismissed at any time by the king. If the board is satisfied, based on the inquiry officer’s report, that there are “reasonable grounds” for believing that the suspect has engaged in the commission or support of terrorist acts involving a listed terrorist organization in a foreign country, it may order that the suspect be detained without trial for up to two years. The order can be extended by the board, in two-year increments, for an unlimited period of time. The draft law also expressly precludes judicial review of Prevention of Terrorism Board decisions other than on questions of compliance with procedural requirements.

“Permitting a government-appointed body to order indefinite detention without judicial review or trial is an open invitation to serious abuse,” Robertson said. “The draft law creates conditions conducive to torture, and denies suspects the right to challenge their detention or treatment.” 

Under the proposed law, the Prevention of Terrorism Board is also authorized to issue restriction orders against terrorism suspects that violate the rights to freedom of expression, movement, association and privacy. The board can restrict, without trial or judicial review, a suspect’s place of residence, travel, access to communications facilities, and use of the Internet, for renewable periods of up to five years. It may also impose electronic monitoring.

The proposed law lists those subject to detention or restriction orders in a register.  The authorities can charge them with a criminal offense for “consorting with” other persons on the register or even for “loitering in or about a public place” at night if they are unable to “satisfactorily account for” their presence. Any registered person who is convicted of any offense is subject to imprisonment for twice the maximum term that could otherwise have been imposed as well as to whipping, an inherently cruel punishment.

While the draft law purports to exclude political belief or activity from being considered terrorism, this exemption is limited by its reference to political parties registered under the Societies Act, as was true of the identical provision in the Security Offenses (Special Measures) Act of 2012 (SOSMA). Since the Registrar of Societies has the power to refuse or delay registration – a power that has been repeatedly used for political ends such as denying registration to a newly formed political party – the risk that the law will be used to restrict political opposition remains.

As part of the new legislative package, the Malaysian government has also proposed amendments to SOSMA that further erode citizens’ rights. These include permitting the introduction of any statement by the accused made at any time; the admission of all documents or other evidence “howsoever obtained whether before or after a person has been charged for a security offence”; and expanded admission of intercepted communications.

“These proposed laws reflect the continuing deterioration of human rights protection in Malaysia,” Robertson said. “To be effective, laws to counter terrorism should meet – not flout – international human rights standards.” 

For more Human Rights Watch reporting on Malaysia, please visit: 
http://www.hrw.org/asia/malaysia

For more information, please contact:
In Bangkok, Phil Robertson (English, Thai): +66-85-060-8406 (mobile); or robertp@hrw.org. Twitter: @Reaproy
In San Francisco, Brad Adams (English): +1-347-463-3531 (mobile); or adamsb@hrw.org. Twitter: @BradAdamsHRW
In Washington, DC, John Sifton (English): +1-646-479-2499 (mobile); or siftonj@hrw.org Twitter: @johnsifton
In New York, Mickey Spiegel (English): +1-212-216-1229; or spiegem@hrw.org. Twitter: @MickeySpiegel

Malaysian Bar calls anti-terror bill ‘shameless revival of ISA’

The Malaysian Bar has urged Putrajaya to withdraw the recently tabled Prevention of Terrorism Bill 2015 (Pota) and bring all other legislation into line with its commitment to respect the rule of law and principle of natural justice.

Malaysian Bar president Steven Thiru said the bill should be withdrawn because the anti-terrorism bill was another repressive law, which he described as a "shameless revival of the Internal Security Act 1960 (ISA)" and other laws that were repealed or revoked in 2011 and 2012 such as the Restricted Residence Act 1933, Banishment Act 1959 and Emergency (Public Order and Prevention of Crime) Ordinance 1969.

He said the Malaysian Bar "abhorred detention without trial", and viewed Pota as "a repressive law that is an affront to the rule of law and repugnant to the principles of natural justice".

"Pota is purportedly directed at persons who are 'engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country'.

"However, because words like 'engaged', 'commission', 'support' and 'involving' have not been defined in Pota, the reach of the legislation is extremely wide and lends itself to abuse.

"It opens up the possibility that almost anyone could be targeted under Pota. We have seen how ISA, which had been meant to deal with the communist insurgency, was used to stifle political dissent and imprison political opponents," Thiru said today.

He said the exclusion of “political belief and political activity" as a ground for detention under Pota was also false comfort.

He said in the past, politicians and political activists had been detained under ISA for activities that were nonetheless viewed as prejudicial to national security or public order.

The Malaysian Bar, he said, was concerned that organisations not registered as political parties under the Societies Act 1966, or not registered under the Societies Act 1966, could also be subjected to the wide powers of Pota.

Steven said they also have issues with Pota conferring "draconian powers” on the inquiry officer tasked with investigating allegations against the accused person and presenting the evidence to the Prevention of Terrorism Board (POTB).

He said the inquiry officer was not expressly defined in Pota, which also excluded the normal rules of evidence and criminal procedure, meaning that the officer might procure evidence by any means.

"There is no provision for POTB to inquire into the officer's report or require further investigation.

"The person accused is also not legally represented before POTB, which has extensive powers including granting a detention order of up to two years or a restricted residence order of up to five years."

Another issue was the "absence of security of tenure that undermines whatever independence POTB purported to have", Thiru said, because members of the board were appointed by the Yang di-Pertuan Agong, following convention, upon the advice of the government.

"Only the chairman is required to have legal experience, and there is no provision that he or she must be, or must be qualified to be a judge.

"We have seen from the practice of the Prevention of Crime Act 1959 (Poca) that the names of the members of the Prevention of Crime Board have not been made public. It is likely to be no different for members of POTB.

"The fact that POTB hearings will not be held in public means, in effect, that Pota will allow secret hearings by a secret panel. There will be no transparency," he said, adding that there was no provision allowing a prospective detainee to be present at a POTB hearing, or for the detainee to be legally represented.

He also highlighted the part that no judicial review of the detention order would be possible under Pota, an aspect he described as "one of the most offensive" in the legislature.

"This violates our constitutional scheme, which invests judicial power in the Judiciary, and is further contrary to Article 8 of the Federal Constitution, which guarantees equality and equal protection before the law.

"The small concession that courts can review procedural compliance is illusory in practice since POTB determines its own procedures."

Steven also said that the government was also proposing to introduce a Special Measures Against Terrorism in Foreign Countries Act 2015, and to amend Poca, the Penal Code, the Criminal Procedure Code, the Prisons Act 1995, and the Security Offences (Special Measures) Act 2012 (Sosma).

When taken as a whole, all these legislative measures, he said, made the introduction of Pota itself wholly unnecessary.

He said the amendments to the Penal Code would enlarge the nature and extent of offences within Part VI that deal with terrorism, and for which alleged offenders must be tried in open court; while Poca amendments that were also opposed by the Malaysian Bar extended its its scope to include terrorists.

"While we have serious concerns about some of these other amendments as well, the combination of these two sets of amendments, together with the new Sosma, adequately address the threat that is posed by terrorism, whether foreign or domestic.

"It is also noteworthy that the amendments to Sosma expand the scope of surveillance and information gathering, which also constitute a violation of the right to privacy. Pota is therefore clearly not required."

Steven also said by passing Pota, Malaysia would be violating the nation's international commitment to abide by United Nations Security Council Resolution 2178, which was passed unanimously in September 2014.

The resolution provides that any measure to counter terrorism by member states must comply with all obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law.

The resolution states that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort.

"It is unacceptable that Malaysia, as a non-permanent member of the United Nations Security Council, has adopted a course of action that contravenes a resolution of that very same body.

"The Malaysian Bar remains steadfastly opposed to detention without trial. As such, we view the Pota as a backward step," he said, reiterating that the government should withdraw the bill. – April 5, 2015.

- See more at: http://www.themalaysianinsider.com/malaysia/article/malaysian-bar-calls-anti-terror-bill-shameless-revival-of-isa#sthash.Bv4hMDuc.dpuf

'Terrorism bills regression for human rights'

NGO Proham said it has studied the six new proposed anti-terrorism bills and have found numerous violations of basic human rights provisions in them, and recommends they be scrapped.

Calling it a "regression" for human rights compliance in Malaysia, Proham's committee in a statement today outlined five areas of concern in the bills, in particular the Prevention of Terrorism Bill 2015 (Pota).

"First, Proham expresses great concern that the new proposed bill Pota does not provide for judicial discretion or judicial review.

"This is a blatant violation of human rights and lacks the most basic principle of justice," said the group comprising Proham chairperson Kuthubul Zaman, secretary general Denison Jayasooria, assistant secretary Muhammad Sha'ani Abdullah and exco member Ivy Josiah

"Proham is of the opinion that section 4 merely creates an illusion of judicial oversight when in actuality there is none," they added.

Secondly, said the group, the provision of just a written statement to the judges with no additional information or material or substantiated grounds for the detention reduces the role of the magistrates as mere "rubber stamp".

"Nor does the judge have a right to reduce the length of the remand," they said.

'Open to abuse'

Thirdly, said the group, the absence of judicial review as indicated in section 19 (1) of Pota was "unacceptable and open to abuse".

"The decisions of the Prevention of Terrorism Board is above judicial review and this denial is a travesty of justice," said the Proham committee.

The Pota, they claimed, also denies the "basic human right" to have a counsel of one's choice.

Finally, said the group, Pota reintroduces detention without trial up to two years and subject to renewal.

"This provision is totally unacceptable as this is a violation of basic human rights," they said.

Proham said the new bills were superfluous as existing laws were sufficient to deal with terrorist threats, "especially with the earlier amended provisions of the Penal Code chapter VI A which relates to offences relating to terrorism".

Penal Code 130B (2) and Penal Code 130J also provide for laws tackling terrorist acts both at home and abroad.

'Existing laws sufficient'

The Security Offences (Special Measures) Act 2012 (Sosma), it added, has also given police the power of detention up to 28 days for investigation.

"This provision enables the Police adequate powers to arrest and prevent the occurrence of any terrorist act prior to the incident.

"In Sosma there are already provisions for electronic monitoring devices," they said.

The group said the government should be looking at the root causes of why young people are being radicalised and recruited into terrorist activities and formulate preventive strategies.

The government should also invest in the capabilities and competencies of police officers in "evidence-based investigations".

Proham said the government should withdraw all the proposed bills as they are inadequate in addressing root problems and "does not enhance a human rights approach to fighting terrorism in modern Malaysia".

Source: http://www.malaysiakini.com/news/294276

Despite provision, lawyers say no guarantee anti-terror law won’t see dissenters cuffed

Friday, 03 April 2015 11:09am

©Malay Mail (Used by permission) by ZURAIRI AR KUALA LUMPUR, April 3 ― Several lawyers have expressed doubt that dissidents will not be targeted under the new anti-terror law tabled in Parliament on Monday, saying the provision preventing the arrest is too vaguely defined. Besides no avenue for a judicial review on indefinite detentions, the lawyers also expressed their concern over the Prevention of Terrorism Board that oversees the detention, pointing out that it has no oversight to curb abuse. “The thing about political belief is that it is so vague and the decision whether one is acting on political belief can be quite arbitrary,” civil liberties lawyer New Sin Yew told Malay Mail Online in a text message when contacted. “Such a vague definition will surely be open to abuse… The definition of political activities or beliefs is too vague and has a chilling effect on legitimate political dissent.” The Prevention of Terrorism 2015 Bill that was tabled in Parliament on Monday prohibits judicial reviews of the grounds of orders for detention without trial, which can be extended indefinitely. Section 4(3) of the Bill also states that no one can be arrested or detained “solely” for their “political belief or political activity”. The phrase was defined as expressing opinions or acting in a political party registered under the Societies Act 1966, as well as expressing opinions or taking actions against the Malaysian government. “Going by the authorities' track record, we certainly can’t take their word at face value ― just look at the recent mass arrest & detention of opposition MPs and activists on exaggerated charges,” added Eric Paulsen of rights group Lawyers for Liberty. “Going back further, detention without trial has always involved politicians and activists detained for their political views ― from leftist, communists in the early days to Ops Lalang to more recently Hindraf and Reformasi activists.” “We are not questioning the need to combat terrorism. But safeguards must be put in place to ensure that it is not abused,” civil liberties lawyer Syahredzan Johan said on his Twitter account @syahredzan. “Ousting jurisdiction of the Courts via ouster clause takes away a very important safeguard,” he added. New explained that with the ouster clause, the decision of the Board cannot be questioned in court except on procedural grounds, and therefore the court cannot question whether the detention of a person is indeed necessary for the prevention of terrorism or prejudicial to national security. “This opens it to abuse. If the Board were to be truly accountable, there must be judicial oversight over decisions made by the Board,” added New. “The Prevention of Terrorism Board is essentially a secret tribunal, a Kafkaesque underworld where a suspect would only have the vaguest idea what are the charges and evidence against him,” Paulsen said. “It is certainly no substitute for open justice, a court of law with well established rules of evidence and procedure”. In an executive media briefing yesterday, Bukit Aman’s counter-terrorism director Datuk Ayub Khan Mydin said the authorities need stronger laws to deal with the global rise of Islamist militancy, voicing his support of the government’s proposed Prevention of Terrorism Act (POTA) currently being debated in Parliament. “There is no country in world that can 100 per cent guarantee to be free from the IS threat, including Malaysia,” he told reporters, referring to the Islamic State terror group that originated in the Middle East but has been infecting nations from Europe to Australia. To date, there are an estimated 63 Malaysians in Syria fighting with the IS. On top of that, as many as 240 Malaysians have been identified and were arrested from 2001 to 2009 for links to Jemaah Islamiyah, a group with an extensive network in Malaysia, Indonesia and the Southern Philippines that has professed support for the IS. Last week, Prime Minister Datuk Seri Najib Razak gave his assurance that the government’s decision to introduce POTA, which allows for preventive detention, will not be used on politicians as claimed by critics. Despite that, opposition lawmakers argued that the POTA is just a repackaging of the repealed Internal Security Act (ISA), especially the proposed law’s prohibition of judicial reviews over the grounds of orders for the indefinite detention without trial. Repealed in 2012, the ISA had been enacted in 1960 specifically to deal with the Communist insurgency then, but was later used on Malaysians and foreigners of all walks, particularly opposition lawmakers.

Suhakam deplores use of sedition law

The Human Rights Commission (Suhakam) is "appalled" by the continued use of the Sedition Act 1948 and urged the Putrajaya to uphold constitutional rights to freedom of expression.

In a strongly worded press release last night, Suhakam chairperson Hasmy Agam said that the commission views with great concern that the law is increasingly used on politicians, activists and even media personnel.

"The recent arrests have escalated alarmingly in spite of our recent call on the authorities to desist from such actions as well as to reconsider the proportionality and necessity for such arrests.

"The Commission is also appalled at the manner in which these arrests have been made, which appears to be tantamount to harassment and intimidation by the authorities and in breach of the rule of law," he said.

On the arrest of five editors from The Malaysian Insider and The Edge media group for sedition, Hasmy said this was a clear violation of Malaysia's obligations under international human rights law.

Global obligations

In view of this, Hasmy said Suhakam wants the government to take steps towards guaranteeing freedom of expression and assembly, including media freedom, in line with the Federal Constitution and the Universal Declaration of Human Rights 1948.

"The Commission also reiterates its well-known position on the Sedition Act and recommends that, consistent with the government's commendable advocacy of moderation at the global level, it repeal this repressive and undemocratic domestic legislation, which directly violates the right to freedom of expression.

"The Commission would like to further state that it fully supports the rights of all individuals to assemble peacefully, to express their civil and/or political views without fear of arrest or detention, including the responsible exchange of opinions on social media."

Urging the government to uphold its commitment to these freedoms, Suhakam said it must do so to ensure the effective enjoyment of the rights to freedom of expression and peaceful assembly in Malaysia.

TMI managing editor Lionel Morais, Bahasa news editor Amin Iskandar and features and analysis editor, Zulkifli Sulong as well as the portal's chief executive Jahabar Sadiq and The Edge publisher Ho Kay Tat were arrested earlier this week.

Their arrest was linked to a TMI report claiming the Conference of Rulers rejected the hudud. The keeper of rulers' seal however denied this.

They are being investigated under Section 233 of the Communications and Multimedia Act 1988 and Section 4 of the Sedition Act 1948.

Section 233 of the Communications and Multimedia Act 1998 concerns the improper use of network facilities or network service, which is punishable with a fine of up to RM50,000 or imprisonment up to a year or both.

Section 4 concerns the uttering, publication, importing of seditious material or committing acts that have seditious tendency, which is punishable with a fine of up to RM5,000 or imprisonment up to three years or both.

Source: http://www.malaysiakini.com/news/294246

 

Proposed Anti-Terrorism Bills a regression for human rights compliance in Malaysia

Proham recognises the threat of terrorism is a real challenge which requires a range of interventions in addressing both root causes, as well as effective prevention and intervention strategies by both authorities and Malaysian society as a whole.

Proham reviewed the six bills before Parliament especially the Prevention of Terrorism Bill 2015 (POTA) and makes the following five conclusions:-

First, Proham expresses great concern that the new proposed bill POTA does not provide for judicial discretion or judicial review. This is a blatant violation of human rights and lacks the most basic principle of justice. Proham is of the opinion that section 4 merely creates an illusion of judicial oversight when in actuality there is none.

Second, on the issue of judicial discretion when the suspect is brought before a Magistrate for 21 days and subsequently before a sessions court judge for 38 days the judges are not given any information or material or substantiated grounds for the detention. Only a written statement is provided. There is no opportunity for the judge to examine or test the contents of the written statement. This limits the role of the judge to a mere rubber stamp. Nor does the judge have a right to reduce the length of the remand.

Third, on the issue of judicial review there is none as indicated in section 19 (1) of POTA. The decisions of the Prevention of Terrorism Board is above judicial review and this denial is a travesty of justice. This provision is unacceptable and open to abuse.

Fourth, the basic right for legal counsel of your choice which is another basic human right is denied in POTA

Fifth, POTA brings back long term “detention without trial” for a two year period by the Prevention of Terrorism Board and which can be renewed. This provision is totally unacceptable as this is a violation of basic human rights.

Proham is of the opinion that there are sufficient laws for the Police and enforcement agencies especially with the earlier amended provisions of the Penal Code Chapter VI A which relates to offences relating to terrorism. These provisions already address the issues pertaining to recruitment for terrorism and training. In addition Penal Code 130B (2) already provides for terrorist acts “within or beyond Malaysia” and Penal Code 130J already provides for “entering or remaining in any country … with a terrorist group”

Proham also notes that the provisions in the Security Offences (Special Measures Act 2012 (SOSMA) already provides for detention up to 28 days for investigation. This provision enables the Police adequate powers to arrest and prevent the occurrence of any terrorist act prior to the incident. In SOSMA there are already provisions for electronic monitoring device.

Proham proposes that the Government addresses the root causes of why young people are being radicalised and recruited. There is a need to formulate intervention strategies in combating terrorism in winning hearts and minds especially within an ideological debate in line with community policing. This requires working with religious and community leaders and in providing the space for young people to discuss the many issues pertaining.

In addition Proham calls on the Government to invest in the capabilities and competencies of Police officers in evidence based investigation.

Proham therefore calls on the Malaysia Government to withdraw all the proposed anti-terror bills as these measures will not adequately address the issues pertaining to terrorism and does not enhance a human rights approach to fighting terrorism in modern Malaysia.

Issued on behalf of Proham by Datuk Kuthubul Zaman (Chairman), Muhammad Sha'ani Abdullah (Asst Secretary), Ms Ivy Josiah (Exco) & Datuk Dr Denison Jayasooria (Secretary General).

April 4, 2015