IBA's letter to the Malaysian Prime Minister on ISA detainees

Dear Prime Minister Abdullah Ahmad Badawi,

Re: Concern over detention of five men under the Internal Security Act (ISA) in Malaysia

We are writing on behalf of the International Bar Association Human Rights Institute (IBAHRI) to express our concern about the detention of five lawyers under the Internal Security Act (ISA) in Malaysia.

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the IBA influences the development of international law reform and shapes the future of the legal profession. Its Member Organisations cover all continents.

The Human Rights Institute works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

We understand that P. Uthayakumar, M. Manoharan, V. Ganabatirau, R. Kenghadharan, and T. Vasanthakumar, reportedly the leaders and legal advisors of Malaysia’s Hindu Rights Action Force (HINDRAF), were detained on 13 December 2007 under a detention order issued by the Minister of Home Affairs. We understand that these men were detained following a peaceful HINDRAF demonstration on 25 November 2007 protesting discriminatory government policies against the ethnic Indian population in Malaysia. Reports indicate that the charges against the five men include undermining national security and public order by threatening racial and religious harmony amongst Malaysia’s Malay, Indian and Chinese communities.

The IBAHRI has also learnt that on 26 February 2008, a habeas corpus application filed on behalf of the detainees was rejected by the Kuala Lumpur High Court Judicial Commissioner Zainal Azman Ab Aziz, thus confirming that the detention order was valid under the law.

However, reports received by the IBAHRI suggest that the charges brought against the five detained men under the ISA, namely breaching national security and public order, may not be based in fact and do not reflect the alleged actions of the five men. Therefore, the IBAHRI is concerned that their detention under the ISA may be arbitrary and unlawful. Furthermore, we understand that the five detainees have been linked without evidence to a terrorist organisation and we are concerned that the use of the Act in this way could indicate an abuse of process.

In addition to our specific concerns about the application of the ISA as it relates to the five arrests detailed above, we would also like to highlight a number of broader issues relating to the Act and its application in the context of peaceful demonstrations in Malaysia. We understand that the Act gives power to the Minister of Home Affairs to issue detention orders against any member of civil society. Furthermore, detainees can be held up to 60 days without warrant, trial or access to legal counsel on suspicion that they have ‘acted or are about to act or are likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof’. Further, we understand that after 60 days, the Minister of Home Affairs can extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts, by issuing a detention order, which is renewable indefinitely.

The ISA therefore establishes the conditions for long term and arbitrary detention without trial and contravenes the right to legal counsel, the right to defend oneself in an open court and the right to be presumed innocent until proven guilty; principles which are protected and guaranteed under international law. The IBAHRI would also like to point out that the prohibition of unlawful detention and the right to habeas corpus are recognised as key principles of customary international law and are therefore applicable to all states, even those that have yet to sign any international human rights treaties.

In this context, the IBAHRI would like to remind you that Malaysia is a founding member of the Association of South Asian Nations (ASEAN). Under the ASEAN Charter signed by Malaysia in 2007, and as a member of the United Nations Human Rights Council, Malaysia is required to ‘promote and protect’ human rights. Malaysia’s Constitution also contains a number of human rights provisions including the right to freedom of expression, the right to free assembly and the right to form associations (Article 10).

We would also like to remind you of the United Nations Basic Principles on the Role of Lawyers which provides standards by which lawyers worldwide should be treated. Principle 23 upholds that ‘lawyers like other citizens are entitled to freedom of expression, belief and association and assembly’. Further, Principle 18 states that ‘lawyers shall not be identified with their client or their clients’ causes as a result of discharging their functions’. The IBAHRI is concerned that the detention of the five lawyers under the ISA may be in breach of the above provisions.

Finally, the IBAHRI has received reports that the health of the detainees has deteriorated during the course of their detention and that urgent medical attention may be required. In particular, reports have been received suggesting that P. Uthayakumar has been denied diabetes medication essential for regulating his condition and maintaining his health. Article 22 of the UN Standard Minimum Rules for the Treatment of Prisoners stipulates that ‘sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers’. We request that urgent medical attention should be made immediately available to all detainees if required.

The IBAHRI would like to receive your assurances that the issues raised above relating to what might constitute unlawful detention of the five men be promptly investigated and that, if the detention is found to be arbitrary, the detainees be immediately released. Furthermore, in light of the concerns relating to the broader application of the ISA as detailed above, we call upon the Malaysian Government to bring to trial all those currently detained under the Act. All those charged must be tried in accordance with international standards and, if not found guilty of any criminal offence, promptly released. We further request that urgent medical attention is provided to P. Uthayakumar and to all other detainees who may require it.

Yours sincerely,

Ambassador Emilio Cárdenas
Co-Chair, Human Rights Institute

Justice Richard J. Goldstone
Co-Chair, Human Rights Institute

CC: Tan Sri Abu Talib Othman
Chairman, Human Rights Commission of Malaysia