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Malaysia
11.11.19
Statements

Security detention must be reviewed to become free of torture, allegations investigated

Statement, 11 November 2019

Kuala Lumpur/Geneva - Suara Rakyat Malaysia (SUARAM) and the membersof the SOS-Torture Network Working Group on Torture and Terrorism of the WorldOrganization Against Torture (OMCT) are alarmed over allegations of torture insecurity detention in Malaysia.

These torture allegations follow thearrest in early October 2019 of 12 alleged Liberation Tigers of Tamil Eelam(LTTE) on the accusation that there was evidence of substantial money transfersmade to LTTE and possession ofmaterials related to the group’s cause.

On 29 October 2019, all 12 have been charged incourt with support to terrorist groups or terrorism and possession of itemsrelated to terrorist groups or terrorism under the Penal Code[1]in conjunction with the Security Offences (Special Measures) Act 2012 (SOSMA),that had replaced the country’s notorious Internal Security Act in 2012. Thisprosecution deprives them of any right to bail and possibly subjects them tounfair trial proceedings.

Several of those detained made credibleallegations of having been tortured. To date, no investigations have been madeinto such allegations.

There must be no exception – in securitydetention or else – from the fundamental rule of law that any allegation oftorture must be investigated and that statements obtained under torture cannever be used in any proceedings’, commented Sevan Doraisamy, Executive Directorof SUARAM and member of the SOS-Torture Network Working Group on Torture &Terrorism. The group is a global effort by the OMCT to provide guidance for atorture-free security response. It brings together the collective knowledge ofanti-torture activists, who are conscious of the difficulties working in tensesecurity situations and amid terrorist violence globally.

Systems of special security detention, likethe one in Malaysia, far from making us more secure, create an environment thatis conducive to torture. We have looked at the system in Malaysia and concludedthat torture allegations like the ones before us are not an accident’, saidCamille Henry, coordinator of the Torture & Terrorism Working Group at theOMCT.

The case at hand is a stark reminder forthe Malaysian Government to conduct a full review of the special measures underthe Security Act. We are ready to offer our expertise and advice as needed’, sheadded.

Security laws in Malaysia including SOSMA, thePrevention of Crime Act 1959 and the Prevention of Terrorism Act 2015, havebeen mired in arbitrary detention, torture, or abuse and impunity. They violatea person’s right to a fair trial either by undermining the fundamentalprinciples of the rule of law, or by allowing potentially indefinite detention without trial.

The Pakatan Harapan administration that tookpower following its election victory on 8 May 2018 promised sweeping reforms toMalaysia’s institutions and legal system, including the ratification of the UNConvention Against Torture. It has yet to deliver on many of them, especiallythose relating to human rights and other fundamental freedoms. Despite itselection manifesto promises, the administration has allowed and endorsed thecontinued violation of human rights by the abovementioned security laws. Therecent arrest and detention of these 12 individuals under SOSMA are yet anotherstain on the administration’s record.

As these 12 individuals and many others remainin detention, SUARAM and the members of the OMCT Torture & Terrorism WorkingGroup would like to remind the Government of Malaysia that it cannot hide awayfrom the reality that these security laws violate fundamental human rights andundermine the rule of law. As these laws provide for solitary confinement forall detainees, extensive interrogation during the remand period and a blanketdenial of bail, torture and other degrading treatment will likely continue tooccur as long as these laws are in force. The Government is responsible andwill be held to account for any torture committed by the police for as long as itallows such legislation to exist.

SUARAMand all members of the OMCT Torture &Terrorism Working Group callfor a moratorium to be implemented on the security laws and for the governmentto establish a transparent and inclusive technical committee to review andabolish legislation which permits detention without trial and undermines theright to fair trial.

They furthercall on Malaysia to commit to the ratification of the UN Convention AgainstTorture, as one of the rare democracies who have not yet ratified thisuniversal convention. The ratification would in our view provide valuableguidance for a credible anti-torture and rule of law policy for the country.

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For more information:

- Sevan Doraisamy, SUARAM Executive director, ed@suaram.net, +601 69 70 83 70

- Iolanda Jaquemet, OMCT head of communication, ij@omct.org , +41 22 809 49 33

The Torture & Terrorism Working group is an initiative led bythe World Organisation Against Torture (OMCT) gathering 17 prominent humanrights organizations from around the world, all working in contexts of tensesecurity situations including terrorist violence and counter-terrorism laws andmeasures. The group seeks to build collective understanding and guide anti-tortureadvocacy in environments affected by terrorism and violentextremism. It operates under the patronage of the UN Special Rapporteur onTorture, the UN Special Rapporteur on Terrorism and Human Rights as well as thatof the OMCT President, Ms Hina Jilani.

The following organizations are members of the SOS Torture &Terrorism working group: The Quill Foundation,KontraS, International commission of Jurists Kenya (ICJ Kenya), SUARAM, CairoInstitute for human rights studies (CIHRS), The Gulf Center for human rights(GC4HR), Christian actionfor the abolition of torture Democratic Republic of Congo (ACAT DRC), the CLEENFoundation, Human Rights Association (IHD), PROMO-LexAassociation, ODIKHAR,Human Rights Commission of Pakistan (HRCP), Office of Civil Freedoms, TunisianLeague for Human Rights (LTDH), Center forLegal and Social Studies (CELS) and the RussianCommittee Against Torture (CAT).

Brief facts:

UN Convention Against Torture (UNCAT)

· Provides a comprehensive blueprint to preventand eradicate torture, including in security detention

· Malaysia has announced its intention to ratifyCAT

· Malaysia is one of only a few democraciesoutside the system

Security Offences(Special Measures) Act 2012

· Grants police full discretion to detain aperson for investigation for 28 days

· Replaces the Criminal Procedure Code in termsof investigation processes and remand procedures when invoked by the police

· Can only be applied to offences under the PenalCode (Chapter VI, VI A & VI B), Anti-Trafficking in Persons andAnti-Smuggling of Migrants Act 2007, and Special Measures against Terrorism inForeign Countries Act 2015 (only offences under Part III A)

· Those prosecuted for an offence in conjunctionwith SOSMA will be denied bail on the request of the prosecution and presidingjudges have no discretion for all stages of trial

· Evidence requirements and traditionalrestrictions, such as those against confessions, do not apply under SOSMA.

Prevention ofTerrorism Act 2015

· Grants police the power to detain a person for investigationfor a period of 60 days

· No trial for detainees as sentence isdetermined by an administrative board

· No avenue for judicial review according to the Act

· Limited legal representation

· No concrete allegation is required as anyonewho falls under the categories described under the preamble of the act isadequate. […prevention of the commission or support of terrorist acts involvinglisted terrorist organizations in a foreign country or any part of a foreigncountry and for the control of persons engaged in such acts and for relatedmatters.]

Prevention of CrimeAct 1959

· Grants police the power to detain a person forinvestigation for a period of 60 days

· No trial for detainees as sentence isdetermined by an administrative board

· No avenue for judicial review according to the Act

· Limited legal representation

· No concrete allegation is required as anyonewho falls under the categories described under the preamble of the act isadequate. […for the more effectual prevention of crime throughout Malaysia and forthe control of criminals, members of secret societies, terrorists and otherundesirable persons and for matters incidental thereto.]

[1] Respectively Section130J(1)(a) and Section130JB(1)(a).

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