Anti-terrorism Bill in Malaysia reintroduces indefinite detention without trial

The lower house of the Malaysian parliament has passed a controversial anti-terrorism Bill, which the government says is needed to combat the threat from Islamic extremists, but critics say is a grievous blow to human rights in the country.

The Bill was passed in the early hours of Tuesday morning, after more than 12 hours of debate, with 79 votes for and 60 votes against. It still needs approval from the Senate, but the upper chamber is also dominated by the ruling Barisan Nasional (BN) coalition, so it is expected to pass.

The government has also tabled amendments to the Sedition Act that would bring in much harsher punishments and a provision to deny bail for those charged under the new proposed Section 4(1A). The maximum jail sentence for those found guilty of sedition would be increased from three years to seven, and to twenty years in certain cases.

The Prevention of Terrorism Act (POTA) would allow terrorism suspects in Malaysia to be held indefinitely without charge, trial, or judicial review. Amnesty International said it was a “shocking onslaught against human rights and the rule of law”.

Malaysia researcher at Amnesty International Hazel Galang-Folli said: “Indefinite detention without trial is contrary to human rights law and it will not stop terrorism. Abandoning people to rot in a cell for years on end without a judicial process and proof that they have committed a crime is just like aimlessly stabbing in the dark. Authorities must ensure that human rights and fair trial guarantees are respected and protected.”

The deputy director of the Asia division of Human Rights Watch, Phil Robertson, said that, by restoring indefinite detention without trial, Malaysia had “re-opened Pandora’s Box for politically motivated, abusive state actions that many had thought was closed when the abusive Internal Security Act was revoked in 2012”.

The Internal Security Act (ISA) was a preventive detention law enacted after Malaysia gained independence from Britain in 1957. It allowed for detention without trial or criminal charges.

The passage of the new law, Robertson said, was “a giant step backwards for human rights in Malaysia”.

The move called into question the government’s commitment to basic rights that were critical to the rule of law in a functioning democracy, Robertson said. “By stripping accused persons of the right to trial in a court, access to legal counsel, and other legal protections if they are accused under the very broad provisions of this law, the government is continuing its slide into rights-abusing rule.”

Robertson had said earlier that the Bill was like a “legal zombie returned from the grave of the discredited and abusive Internal Security Act”.

Under the POTA, terrorist suspects can be detained for 21 days, based solely on the word of a police inspector, and this detention can then be extended for an additional 38 days. During this period, the suspect is not permitted representation by counsel except when a formal statement is being taken and recorded by the inquiry officer.

After the 59 days, the case would then be brought to a special Prevention of Terrorism Board, which will be appointed by the King and can order further detention of up to two years. The detention can be renewed indefinitely, and no judicial review in any court is allowed.

Under the accompanying Special Measures Against Terrorism in Foreign Countries Act, the authorities would be able to suspend or revoke travel documents, both Malaysian and foreign, of people travelling to or from Malaysia to support, or engage in, terrorism.

Phil Robertson said that passage of the anti-terrorism Bill raised serious concerns that Malaysia would return to practices of the past “when government agents frequently used fear of indefinite detention to intimidate and silence outspoken critics”.

Hazel Galang-Folli said: “With the stroke of a pen, Malaysia has managed to get one step closer to becoming a ‘human rights black hole’ where fundamental rights to a fair trial or freedom of expression and peaceful assembly, even if enshrined in the Malaysian constitution, are increasingly being undermined in the name of national security.”

The chairman of the Malaysian Human Rights Commission (SUHAKAM), Hasmy Agam, said provisions in the POTA breached Article 5 of Malaysia’s constitution regarding the right to a fair trial as well as Article 10 of the Universal Declaration of Human Rights.

The absence of a right to judicial review, save for the review of procedural matters, was, he added, “an affront to the right to a fair hearing and the right to have the legitimacy of one’s detention determined by an independent and competent court of law”.

Threat from IS

Malaysia’s Inspector-General of Police (IGP), Khalid Abu Bakar, said today that suspected militants loyal to the Islamic State (IS) had planned to rob banks to raise money, raid Malaysian army camps and police stations to seize weapons, kidnap high-profile people, and attack “strategic locations” in the capital, Kuala Lumpur.

Seventeen suspected IS militants were arrested on Sunday (April 5) in Malaysia, the IGP said, and two of them had just returned from Syria. He said these arrests brought to 92 the number of people detained over the past year in Malaysia for suspected IS involvement.

Jurists urged caution

Before the anti-terrorism Bill was passed, the International Commission of Jurists (ICJ) said in an open letter to the parliamentary speaker, Pandikar Amin Mulia. “The ICJ writes to you today to relay our concerns regarding the newly tabled draft Prevention of Terrorism Act (POTA) and to urge you and other Members of Parliament to reject this draft law or to amend it to ensure its consistency with international human rights law.”

Urging the Malaysian parliament not to rush through the bill, the ICJ said it recognised that the government of Malaysia could and should take measures to protect its people from acts of terrorism, but noted that several provisions in the draft Bill failed to comply with requirements set out by the UN Security Council and, the ICJ said, violated international human rights standards.

The ICJ added: “The Malaysian government has not demonstrated why it now needs such arbitrary and broad powers, and why the existing criminal law, law enforcement, and criminal justice system, properly resourced and implemented, cannot adequately address acts of terrorism.” The ICJ pointed to many issues that caused it concern, including the lack of legal expertise among the members of the proposed Prevention of Terrorism Board.

Amendments to Sedition Act

Tweeting about the proposed amendments to the 1948 Sedition Act, the executive director of Lawyers for Liberty, Eric Paulsen, who has himself been detained under the Act, said his biggest concerns were the minimum sentence of three years,  travel prohibition for the person charged, and no bail for those arrested under Section 4(1A).

Lawyer Syahredzan Johan wrote in an article about the amendment Bill: ” The proposed Section 5B empowers the court to prevent a person who is charged with a sedition offence from leaving Malaysia. It provides that if an application is made by the public prosecutor, the court shall order the person to surrender his travel documents such as his or her passport or order the Director General of Immigration not to issue any travel documents to the said person. The keyword here is ‘shall’, which suggests that the court has no discretion on the granting of such an order once an application is made.”

The newly-introduced Section 4(1A) creates a new offence of “aggravated sedition” and stipulates that those who cause bodily injury and/or property damage when committing sedition crimes will now face jail terms of between five and twenty years.

“Soon we will have farcical scenes like in Egypt where half of the opposition/dissidents will be behind bars on political trials,” Paulsen tweeted.

“Sheer madness,” he added. “Amendment will treat sedition like murder cases by denying bail.”

Once a certificate is given by the public prosecutor, no bail shall be granted for those charged under Section 4(1A). Courts will no longer have the option to impose fines upon conviction of a Section 4 sedition offence.

Also, if the amendments are passed, a conviction for sedition will result in an MP losing his or her seat.

A new Section 10 of the Sedition Act will enable courts to order offenders to remove their online publications if they are deemed to be seditious. Someone who fails to remove a prohibited online publication would face a fine of up to 5,000 ringgit (about 1,370 US$) or imprisonment not exceeding three years.

Courts will be able to authorise websites to be blocked if anonymous, allegedly seditious comments cannot be identified.

Lawyers for Liberty described the amendments as “absolutely scandalous”. They said in a statement that the amendment bill, if passed, constituted “an appalling setback, the most serious assault on the nation’s democracy, fundamental liberties, and rule of law as it makes the already draconian Sedition Act far worse”.

The move was “all the more deplorable”, they said, “since these very serious amendments were done in secret and without any consultation with opposition members of parliament, civil society and the Malaysian Bar”.

The amendment Bill, they said, sought to provide “harsh and disproportionate punishment to what are essentially mere ‘speech offences’ with no real victims, unlike common crimes like robbery or murder”.

While Lawyers for Liberty welcomed the repeal of the seditious tendency provisions that make the act of “inciting hatred, contempt, or causing dissatisfaction” against the government and the administration of justice an offence, they said the rest of the proposals made clear “the totalitarian streak that runs through the entire Bill”.

The lawyers pointed to the inclusion of “religion” as an additional ground for seditious tendency. “This is unwarranted as there are sufficient provisions in the Penal Code to cover hate speech relating to religion,” they said.

Lawyers for Liberty called on the government to immediately withdraw the amendments, impose a moratorium on any further use of the Sedition Act, and work towards its abolishment.

There have already been numerous arrests under the Sedition Act, and many calls for its repeal. Critics say it is a legacy of colonial rule that is being used to crack down on dissent.

After public rallies calling for reform in 2012, the prime minister, Najib Razak, promised to scrap the sedition laws. However, he went back on that pledge and said the laws would remain and even be strengthened.

P1110186 (640x480)Nurul Izzah (pictured left), who is the eldest daughter of the jailed opposition leader, Anwar Ibrahim and MP for for Lembah Pantai, was arrested under the Sedition Act in March for a speech she gave in parliament on behalf of her father.

On Monday, Nurul Izzah, who is also vice-president of the opposition Parti Keadilan Rakyat (PKR, or People’s Justice Party), called on the Minister Of Home Affairs, Seri Zahid Hamidi, to table the  POTA Bill and six other proposed anti-terrorism laws to a bipartisan parliamentary select committee on terrorism “to unearth the most effective solution to combating terror in our midst”. Otherwise, Nurul Izzah said, the POTA and any other attached laws would only be seen as “mere mechanisms to continue persecution against the opposition”.

Anwar was jailed for five years on February 10 after Malaysia’s federal court upheld a ruling by the Court of Appeal last year, which found him guilty of sodomising his former aide Saiful Bukhari Azlan in 2008.

anwaribrahimverdict10022015Anwar (pictured left), who is the de-facto leader of the PKR, says the case against him was fabricated by his political enemies, and the verdict has been strongly criticised both locally and internationally.

The Malaysian cartoonist Zulkiflee Anwar Haque, better known as Zunar, has been charged with nine counts of sedition for allegedly insulting the judiciary in tweets about Anwar’s jailing.

Latheefa Koya, who is one of the lawyers representing Anwar, tweeted at the time: “Nobody’s ever been charged for nine sedition offences. Nobody.”

Three editors from The Malaysian Insider (TMI) news portal were arrested on March 30, and executives from the Insider and The Edge media group were taken into detention on March 31.

Managing editor Lionel Morais, news editor Amin Shah Iskandar, features and analysis editor Zulkifli Sulong, Insider chief executive and editor Jahabar Sadiq, and The Edge publisher Ho Kay Tat, were all arrested under Section 233 of the Communications and Multimedia Act and Section 4 of the Sedition Act.

The five arrests are said to be over a report published by The Malaysian Insider on March 25, which said Malaysia’s Conference of Rulers had rejected proposed amendments to a federal law that the Kelantan government wants to change so that it can enforce hudud (Islamic law) in the state.

There were two other arrests in March over hudud. Paulsen was arrested for his comments about hudud, and the legal and campaign coordinator at Lawyers for Liberty, Michelle Yesudas, was detained after she expressed her fears about rape in Malaysia on Twitter after the presenter of a satirical video about hudud was threatened with rape and death.

A total 158 people have been arrested over the past two months.

Many of the recent arrests have been over the Kita Lawan (“We fight”) rallies that have been held every Saturday afternoon, except last Saturday, since Anwar was jailed, but more than 80 people were detained over a demonstration about the Goods and Services Tax (GST), which came into effect on April 1.

dragnet infographic 11102759_10152900901289633_513887820342724448_nThe February 5 arrest of Eric Paulsen came before Anwar’s jailing, so the total arrested since Feb 10 is 157 people.

Open letter from International Commission of Jurists

Statement by Human Rights Watch

Statement by Lawyers for Liberty

Article updated on 08/04/2015 to include comments from Amnesty International, lawyer Syahredzan Johan, MP Nurul Izzah Anwar, and Malaysia’s Human Rights Commission.