Real rule of law must prevail

Lim Chee Wee, President, Malaysian Bar

Three events reported in the past week give rise to grave misgivings as to the manner in which legislation allowing detention without trial is being used, and have indeed demonstrated why such laws should be repealed.

First was the release of six Parti Sosialis Malaysia (“PSM”) leaders on 29 July 2011. These leaders had been detained under the Emergency Ordinance (“EO”) since 2 July 2011.

According to press reports, the Prime Minister had stated that “the police’s decision to release the six…was based on their judgment and goodwill” and that “the act depicted that the country always upheld the rule of law”.

Second was the announcement of the release of eight Immigration Department officers detained under the Internal Security Act 1960 (“ISA”) in connection with allegations of human trafficking.

These officers have been in custody since mid-October 2010, apparently on the basis that their actions could undermine national peace and security.  The decision to free them was reportedly because, according to the Minister of Home Affairs, they had “shown remorse and repented for their actions and have promised not to repeat the offence”.

The third report, in yesterday’s press, was that the EO “can and will be used against operators of illegal online or cyber casinos”.

The Malaysian Bar has repeatedly denounced the detention of persons without trial under any circumstances, as it is an unjustified infringement of the rule of law.  The Prime Minister’s reported statement is hence ironical, as preventive detention laws would not even exist in a country that truly upholds real rule of law.

The alleged statement by the Minister of Home Affairs carries the implication that detention without trial is for the purpose of re-education.  Uncomfortable parallels with the re-education camps of previous and infamous oppressive regimes (such as the Khmer Rouge) are reinforced by media reports that the detainees were grateful for having been detained without trial under the ISA.

It was also reported that the detainees had been cooperative with the enquiries of the police, raising the spectre of the detention under the ISA being used as an interrogative technique.   Finally, it was reported that the decision to release the
detainees was in the spirit of Ramadan.

Without in any way disparaging the quality of benevolence, it must be pointed out that its exercise in this context highlights the essentially arbitrary nature of the detention without trial laws.  This contention is fortified by the Prime Minister’s alleged statement that the release of the six PSM leaders “was based on [the police’s] judgment and goodwill”.

What is eminently clear is that ulterior motives are reportedly affecting the exercise of the Minister’s discretion under such laws.

All detentions under preventive detention legislation are abhorrent, as the perceived offenders should instead be charged under existing laws.  For example, human trafficking, which is an offence of the utmost gravity, is the subject of specific legislation, namely the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.  Various current laws can be relied upon to curb operators of illegal online or cyber casinos (or new laws should be enacted, if necessary).

Notwithstanding this, there appears to have been no suggestion that prosecutions will result.

The ISA and EO, and other similar laws, go against the most basic tenets of justice.  They strike not only at constitutional guarantees concerning the liberty of the individual, but also at the principle that justice must be seen to be done.  There is a complete absence of transparency in the exercise of these laws, as a result of which the public at large has no knowledge of the offences which the Minister for Home Affairs says have been committed.

In addition, such laws do not allow for judicial oversight and are therefore susceptible to serious abuse.

In short, these cases exemplify that arbitrary detention is being used for ulterior motives and as a substitute for trial (and, if need be, punishment) under the criminal laws.  There can be no clearer illustration that preventive detention laws are repressive and outmoded, and whose time has passed.

The Malaysian Bar reiterates its long-standing call for the release of all detainees held under preventive detention laws, and the repeal of all such laws.