LIBERTY MUST BE ADMINISTERED EXPEDITIOUSLY

Press statement by Kua Kia Soong, SUARAM Adviser 27 Aug 2018

The hunger strike by 160 detainees under the Security Offences (Special Measures) Act (Sosma) 2012 at Sungai Buloh prison who are demanding the government abolishes the detention-without-trial Act, reminds me of the hunger strike by Operation Lalang detainees in 1988. I shall never forget the passionate plea by the late Karpal Singh at his habeas corpus hearing then that “a person’s freedom must be attended to EXPEDITIOUSLY…”

When we treat this question of a person’s liberty as seriously as it should be, we can see that the feet dragging by the new PH government to fulfil their election promise to do away with detention-without-trial laws is completely inexcusable. When a person is detained without trial, that is a violation of the RULE OF LAW. The Prime Minister said he would abide by the rule of law when he executed the charges against the villains in the 1MDB scandal as soon as he came into office.

Well, detention without trial such as the detainees under Sosma are subjected to, is a violation of international human rights. The late Karpal Singh would certainly not have put up with more than 100 days of the existence of such despicable laws in a country that is supposed to be ruled by a coalition that he belonged to. Knowing him and his principles, he would have wanted such reforms to be executed expeditiously, not even as long as 100 days.

Freedom is not just another word for nothing much to do for the new PH government, freedom is the most precious human right that cannot be traded or put off like the other reforms in the PH manifesto.

From SUARAM’s monitoring, there were even 142 minors detained without trial under the Prevention of Crime Act 1959 (Poca) and another 17 who are detained under the Security Offences (Special Measures) Act 2012 (Sosma), as reported in 2017. Countless more were subjected to house arrest under Poca or Sosma, and some had Electronic Monitoring Devices (EMD) attached to their bodies. There are currently more than 1,000 Sosma detainees in the country.

We have consistently maintained that if there are legitimate allegations against these individuals, they should be charged in court in accordance with the Criminal Procedure Code or Child Act 2001 and not subjected to detention without trial or arbitrary house arrest orders.

With the on-going hunger strike by the Sosma detainees, SUARAM calls on the PH government to prioritise the abolition of all detention-without-trial laws in this country and return us to a state that truly respects the rule of law. 

One thought on “LIBERTY MUST BE ADMINISTERED EXPEDITIOUSLY”

  1. I must digress and refer to Suaram letter here :
    https://www.malaysiakini.com/letters/441132

    The Genocide Convention and Customary International Law – The Rohingya Case Scenario

    Recently, in the UN Human Rights Council Report of the Independent International Fact-Finding Mission on Myanmar (A/HRC/39/64) [hereinafter referred to as “the Report”], the Mission concluded that given these considerations on the inference of genocidal intent, that there is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command, so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.
    https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf

    The International Court of Justice (ICJ) has repeatedly stated that the Genocide Convention embodies principles that are part of general customary international law.
    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 110-111, para. 161.

    This means that whether or not States have ratified the Genocide Convention, they are bound as a matter of law by the principle that genocide is a crime under international law and that they thus have an obligation to prevent and punish it. In a recent judgment, the ICJ also expressly noted “the fact that the Convention was intended to confirm obligations that already existed in customary international law”.
    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015,
    p. 45, para. 95.

    In its Judgment of 3 February 2006 in the case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64, the ICJ opined that the norm prohibiting genocide was assuredly a peremptory norm of international law (jus cogens).

    On 2nd. December 2003, it was clearly decided in the ICTY Sentencing Judgment of Momir Nikolic (Case No. IT-02-60/1-S) that Justice is to be achieved through criminal proceedings. The purpose of such proceedings was multi-fold: the primary objective was to convict – and punish – those individually responsible for their crimes. The suffering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged. Furthermore, through criminal proceedings, the Security Council intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of “ethnic cleansing” – would not be tolerated and must stop. It was further hoped that by highlighting breaches of obligations under international humanitarian law, and in particular the Geneva Conventions, that the parties to the conflict would recommit themselves to observing and adhering to those obligations, thereby preventing the commission of further crimes. Finally, it was hoped that this commitment to end would promote respect for the rule of law globally.

    Myanmar is a signatory to the Genocide Convention and had ratified the same. However, its ratification was made with reservations :

    “(1) With reference to article VI, the Union of Burma makes the reservation that nothing contained in the said Article shall be construed as depriving the Courts and Tribunals of the Union of jurisdiction or as giving foreign Courts and tribunals jurisdiction over any cases of genocide or any of the other acts enumerated in article III committed within the Union territory.
    “(2) With reference to article VIII, the Union of Burma makes the reservation that the said article shall not apply to the Union.”

    The relevant articles of the convention are herewith reproduced verbatim :

    Article VI
    Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

    Article VIII
    Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

    As stated in the Report [A/HRC/39/64 17], the military (known as “Tatmadaw”) was identified as the main perpetrator of serious human rights violations and crimes under international law in Kachin, Rakhine and Shan States. The same report lucidly states that the Tatmadaw is a state organ.

    The Question of Attribution of the Rohingya Genocide to
    the Respondent State of Myanmar on the Basis of the Conduct of Its Organs

    The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.

    This rule, which is one of customary international law, is reflected in Article 4 of the ILC Articles on State Responsibility as follows :

    “Article 4
    Conduct of organs of a State

    1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

    2. An organ includes any person or entity which has that status in accordance with the internal law of the State.”

    When applied to the present case, this rule first calls for a determination whether the acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the status of organs of the Republic of the Union of Myanmar (as the Respondent State is officially known at all material time) or Myanmar, under its internal law, as then in force. It must be said that the Report must justify an affirmative response to this question. It has been clearly shown by the Report that the Tatmadaw represent de jure and de facto organs of the state of Myanmar, having the status of organ of that State under its internal law.

    Thus, it is on the basis of settled international legal jurisprudence that an independent, impartial and international Court will determine whether the Respondent State has incurred responsibility under the rule of customary international law set out in Article 8 of the ILC Articles on State Responsibility.

    It must be argued that despite Myanmar’s reservations, the gravity of such atrocity crimes committed and the involvement of state organ(s) undoubtedly leaves no recourse but for the UNSC acting under Chapter VII of the United Nations Charter to refer the reported situations to the Office of the Prosecutor of the International Criminal Court and certainly do not oust the obligations and state responsibility of Myanmar under customary international law.

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