Malaysia’s legal and lethal detention laws mirror Israel’s military laws
By: Rama Ramanathan
Did you know that a military model of policing has been legislated in Malaysia?
Under military rule, what is legal (allowed) only in war is allowed all the time, for instance “legal” detention without trial.
Palestinians are often detained by the military. Since Malaysia’s favourite foreign victims are Palestinians, I will use Israel as a comparison.
In Israel – a nation in a state of war – detention without trial, called “administrative detention,” is authorized by military laws. The state can detain adults and children without having to accuse or convict them of any crime. Detentions can be based on secret dossiers of evidence – hidden from detainees and their lawyers. Each order is limited to six months, but can be renewed forever.
In Malaysia, detention without trial is authorized by civil laws – passed by parliament, senate and Agung. Just like Israeli military laws, Malaysian civil laws allow for detention of adults and children forever, without having to accuse or convict them of any crime, based on secret dossiers of evidence hidden from both detainees and lawyers.
Malaysia has many such laws; I will refer to only two of them: the Security Offences (Special Measures) Act 2012 (SOSMA) and the Prevention of Crime Act 2018 (POCA).
In any civilized society there must be a balance between freedom and security, encapsulated in the dictum: Your freedom ends when it threatens my security.
All nations have police and military forces. The difference between them can be put in broad terms: police are expected to face civilians, soldiers are expected to face combatants; police are less closely supervised than soldiers; police use persuasion, soldiers use power.
When MPs enacts laws such as SOSMA and POCA, they gives military powers to the police. They send the message that we are at war – just like the war between Israel and Palestinians.
Laws such as SOSMA and POCA put too much emphasis on security and too little on human rights. Such laws endorse a war culture.
SOSMA has been used to detain prominent persons. For example, Mahathir supporters, Datuk Seri Khairuddin Abu Hassan and his lawyer Matthias Chang and former Bersih chairperson, Maria Chin Abdullah – for supposed offences such as “activity detrimental to parliamentary democracy!”
SOSMA has been used to detain students. For example, Siti Noor Aishah, for possession of books – which are not banned in Malaysia and which she said she was using to write her Master’s thesis.
SOSMA has been used to detain children. In late November 2017 then Home Minister Datuk Seri Ahmad Zahid Hamidi was forced to reveal that 17 children have been detained under SOSMA (MMO Nov 7, 2017).
SOSMA allows the police to detain a person for up to 28 days for investigation, deny legal representation for 48 hours and deny bail to all healthy male adults. Even if a detainee is acquitted, he can be remanded until the appeal process is exhausted.
SOSMA was enacted to address police inability to curb three broad categories of serious crimes defined in the Penal Code: (1) Offences against the state, e.g. waging war against the Agung; assaulting MPs; committing sabotage or espionage; (2) Offences relating to terrorism, e.g. committing; recruiting; receiving training; travelling; giving support; (3) Organized crime, e.g. recruiting, participating, harbouring. It was also intended to “makes it easier” to curb human traffickers and terrorists.
POCA was enacted, as the preamble to the Act states, “for the more effectual prevention of crime throughout Malaysia and for the control of criminals, members of secret societies, terrorists and other undesirable persons and for matters incidental.” In other words, POCA was also enacted to address police inability to curb criminals.
POCA allows for 60 days detention – to claim that magistrates can prevent remand beyond 24 hours or 22 days is to tell an untruth. The claim is untrue because although the arrestee must be brought before a magistrate “within 24 hours” for an extension of 21 days and “after 21 days” for an extension of 38 days, the magistrate cannot deny extension!
POCA also allows for permanent detention: after 60 days, the Prevention of Crime Board can order a detainee’s remand to be renewed at intervals of two years or less, with no limit. Neither detainees nor witnesses called before the board are allowed legal representation.
POCA too has been used to detain children – Zahid Hamidi was forced to reveal that 142 children have been detained under POCA.
There is another feature of laws such as SOSMA and POCA which endorses the military model of policing: confessions can be obtained by compulsion and cannot be rejected by judges if the cases go to trial.
We don’t have to look to Israel for the lethal effects of “legal” use of excessive police power. Malaysia has legislated it just like Israel has.
Rama Ramanathan blogs at write2rest.blogspot.com and is the spokesperson for CAGED, Citizens Against Enforced Disappearances.
The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online.
