I. Introduction
Gerakan Mansuhkan ISA (GMI) and the Human Rights Committee of the Malaysian Bar Council (HRC) welcomes the convening of the 12th Parliament on 28 April 2008. It is evident from this that we continue to live in a democracy, one which is maturing and functioning though not necessarily perfect. It is also evident that the peoples of Malaysia have democratically elected a Government which is now expected to administer the country in accordance with core democratic ideals such as upholding the rule of law, protecting human rights, and effectively maintaining the separation of powers between the Executive, Legislature and Judiciary.
GMI-HRC reiterates the aspirations of the peoples of Malaysia who wish to live in a peaceful and safe Malaysia, yet at the same time, who wish to ensure that the rights of every person are fully and equally respected.
II. Purpose
GMI-HRC wishes to take the opportunity at the start of the 12th Parliament to bring to the attention of all Members of Parliament as follows.
1. Malaysia’s Vision 2020 envisages Malaysia as a developed nation by the year 2020 including fostering and developing a mature, progressive democratic and ethical society imbued with the highest of ethical standards.
2. Malaysia is presently a member of the United Nations Human Rights Council and is obliged to uphold the underlying values of international human rights law as set out in, among others, the Universal Declaration of Human Rights 1948 (UDHR) and International Covenant of Civil and Political Rights 1976 (ICCPR).
3. It is internationally recognised that the detention of persons without trial is in violation of the rule of law, human rights and the principles of democratic Government. Among other reasons, detention without trial violates a person’s right to be presumed innocent until proven guilty and his/her right to a free, fair and public trial where he/she may be defended.
4. While the Government is obliged to ensure peace and security of the country, it is not permitted to do so at the expense of basic principles of human rights and natural justice.
5. Despite wide-ranging penal legislation, Malaysia continues to invoke laws which allow for the detention of persons without trial, such as the Internal Security Act 1960 (ISA), Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) and Dangerous Drugs (Special Preventive Measures) Act 1985 (DDSPMA).
6. In 2003, the Human Rights Commission of Malaysia (SUHAKAM) in its report “Review of the Internal Security Act 1960” (Report) recommended the repeal of the ISA. The Report stated:
The power to detain a person without trial goes against human rights principles in that the person detained, is denied the right to personal liberty, the right to a fair trial and the right to be presumed innocent until proved guilty. These rights are enshrined in articles 3, 10 and 11(1) of the UDHR (at page 94 of the Report).
The Report concluded:
Therefore, by considering the law and practice in relation to the ISA to date from the human rights perspective and in light of the four human rights principles on the limitation of the rights of a person (legitimate aim, absolute necessity, proportionality and adequate safeguards), it is clear that the balance between national security and human rights under the ISA is currently disproportionately weighted in favour of national security (at page 99 of the Report).
7. Similar arguments for the repeal of the ISA apply to other laws which provide for detention of persons without trial.
III. GMI-HRC’s Requests
Given the above, GMI-HRC respectfully calls on the Government of Malaysia as follows:
• To immediately and unconditionally release all persons presently detained without trial, and where appropriate, to prosecute them in a public and fair trial.
• To immediately repeal all laws which allow for the detention of persons without trial such as the ISA, EO and DDSPMA.
• To immediately close all detention camps where detainees are held without trial.
• To apologise to all detainees (past and present) held without trial, and offer compensation for the suffering, anguish and injustice caused to them.
• To investigate all complaints and cases of victimisation, torture, cruel, degrading and inhuman treatment, tyranny and abuse of power in relation to past and present detentions, and to prosecute the perpetrators including but not limited to establishing a Royal Commission of Inquiry for the said purpose.
• To immediately debate SUHAKAM’s reports in Parliament and to implement its recommendations.
• To commit to a monthly dialogue session on human rights issues with representatives of SUHAKAM, Attorney-General’s Chambers, non-governmental organisations, human rights groups and the Bar Council.
• To recognise, respect and restore the inherent powers of the Judiciary as an independent check on the powers of the Executive and police including repealing laws which oust the judicial review of Executive actions or decisions.
GMI-HRC strongly urges all Members of Parliament to support the initiatives and aims set out above including lobbying the Government of Malaysia on the same, and in the meantime, to regularly conduct visits and fact-finding missions to all detention camps where detainees are held without trial.
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