Arbitrary Detention: Preventive Laws should be repealed or amended in Malaysia - UN expert body

KUALA LUMPUR (18 June 2010) – The UN Working Group on Arbitrary Detention urged the Government of Malaysia to repeal or amend four Preventive Laws in force in the country that allow detention without trial, in some cases indefinitely.

“These laws deny the detainee the right to a fair and public hearing by an independent and impartial tribunal, consecrated in the Universal Declaration of Human Rights and other principles of international customary law,” said the Group’s Chairperson, Mr. El Hadji Malick Sow*, at the end of a 12-day mission to Malaysia.

According to the Group’s findings, the Internal Security Act (ISA) 1960, the Emergency (Public Order and Prevention of Crime) Ordinance, the Dangerous Drugs (Special Preventive Measures) Act, and the Restricted Residence Act “allow State institutions, particularly the Police and the Attorney General’s Office, to elude the normal penal procedure for common crimes and offences.”

These laws, that establish investigative detention to prevent a suspect from fleeing, destroying evidence or preventing him or her from committing a future crime, “also give the Minister of Home Affairs excessive powers to keep people in detention indefinitely, without the need to sustain evidence in court or to prove criminal responsibility,” Mr. Malick Sow said.

The Government justifies the need for these laws based on its obligation to guarantee national security and the security of its citizens. “Nevertheless,” the Group’s Chairperson noted, “detention without trial and without charges, for flexible and extendable term limits, at the will of the authorities, affects not only the rights to personal freedom, free trial and presumption of innocence, but also the right to security of person, which guarantees the right to liberty for all persons if they have not committed any crime.”

Prisons and detention centers

In its preliminary findings, the Working Group highlighted “the good conditions in all the prisons visited, including the recent construction and renovation, as well as the good rapport between the detainees and the guards.” The UN independent experts did not receive any complaints concerning the treatment by the guards in prisons and detention centers.

However, the human rights experts observed a different situation at immigration detention centers, with overcrowding, poor sanitation and inadequate medical care. Allegations were received of inadequate food and a lack of ventilation. The unsanitary and overcrowded facilities have also given place to the transmission of communicable diseases, particularly skin diseases.

The Group’s experts described as “proportional and adequate” the ratio in prisons between people in pre-trial detention and those convicted, with nearly a third of detainees on remand. However, the interviews with detainees showed that pre-trial detention is considerably long, mainly due to a large backlog of cases in the courts. Additionally, most of the prisoners and detainees interviewed said that they did not have defence lawyers, mostly as a result of the lack of financial resources to pay for them.

“The situation of detention in Malaysia,” they stressed, “would improve if the judiciary were fully independent, based on the principle of separation of powers, and composed of independent and impartial judges and magistrates.

During its mission, the Working Group met with high level authorities from the Executive, Legislative, and Judicial branches of Government. Meetings were also be held with representatives of the Bar association, civil society members and representatives of UN agencies and international organizations.

The independent experts designated by the UN Human Rights Council also visited various places of detention in Malaysia, including penitentiaries, prisons, immigration holding facilities, police stations, psychiatric hospitals, and a drug rehabilitation center.

A final report on the visit will be presented to the Human Rights Council in March 2011.

(*) Read the full statement by the Working Group’s Chairman: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10176&LangID=E

OHCHR Country page – Malaysia: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/MYIndex.aspx