Federal Court Decision on Former ISA Detainee Abdul Malek Husin: A Negative Development on Human Rights Development in Malaysia

Press Statement: 12 August 2010

Suara Rakyat Malaysia (SUARAM) expresses its grave disappointment and expresses serious concern over the Federal Court judgment today which overturned a RM2.5 million award to former Internal Security Act (ISA) detainee Abdul Malek Husin following an appeal by the Malaysian government.

The Federal court reversed the High Court decision and the Federal Court has upheld the Court of Appeal ruling to overturn a High Court decision his suit against the government. The Federal Court thus ruled that Malek Husin will not receive the damages awarded to him by the High Court and ordered Malek Husin instead to pay RM20, 000 in costs. It’s a total setback to the former detainee and also for the rest of the Malaysians. He was detained without trial for 57days under the ISA; he was tortured, beaten up & now to pay costs RM 20k. Something is really wrong with our judges and judiciary system in Malaysia!

Suaram is of the view that the judgement sets a negative bench mark on human rights development in Malaysia as the court refuse to even hear a fundamental question pertaining Article 5 of the Federal Constitution as it went on to reject the leave application citing Court of Judicature Act. Suaram feels that courts failed to exercise its jurisdiction to address fundamental constitutional rights and civil liberties by choosing to adopt technical grounds per se.

The judgement reaffirms the current worsening culture of impunity and torture by further granting a 20,000 RM cost over a public interest litigation seeking justice over his rights and fundamental liberties that was purportedly violated by the most notorious undemocratic law of the nation. The message sent by the courts is that the only mechanism available to make police actions accountable is laden with risk of reverse punishment in form of a cost. Suaram views that all public interest litigations should not burden litigants with cost or fear of cost in addressing the legal remedy over one’s Constitutional rights and freedom.

The Federal not only refused to hear a question of fundamental rights enshrined in the Federal Constitution but it also went on to punish the person for raising it. The judgement is the biggest blow to our judicial integrity since the controversial Lingam Tape and the controversial appointment of UMNO linked lawyer Tan Sri Zaki Azmi as the Chief Justice of Malaya.

Court Rules In Favour of Human Rights Violators!

SUARAM also views this as another dire attempt by the government to defend the indefensible ISA which allows detention without trial. It is a known fact that all ISA detainees are subjected to severe psychological torture and put in solitary confinement in their 60 days detention. Detention without trial for such a long period without any access to lawyers, family and the outside world is itself a cruel maltreatment to the detainees. Many amongst them, like Male Husin, have been subjected to physical torture while in detention.

Malaysia Accepts Torture?

The Federal Court judgement today, rejecting the findings of the High Court that Abdul Malek was indeed tortured while in detention, did nothing more than to reaffirm the acceptance of torture in the country not only by the Malaysian government – which has still to date refused to ratify the UN’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) – but also by the Malaysian judiciary!

SUARAM strongly urges the Malaysian government to immediately ratify the CAT. SUARAM finds no reason for the refusal of the government to do so but for its acceptance of torture as a punishment in the country!

Abolish the ISA!

The absence of judicial checks and balances in ISA detentions has also exacerbated the abuses of power by the police who can get away with impunity. Malaysia cannot call itself a democratic country when there is such a law that permits detention without trial and gross violation of human rights.

SUARAM reiterates its demand that the government abolishes the ISA frees all detainees or accords them a fair trial. SUARAM stands strongly against any law that provides for detention without trial.

Last but not least, SUARAM reaffirms that it will build on the struggles, sacrifices and perseverance of the numerous courageous ex-ISA detainees and their families who have stood up against the draconian law. With the support of the people, SUARAM will continue the struggle until the ISA is finally abolished.

Released by,

Nalini, E.
SUARAM Coordinator

Background

Abdul Malek Husin was arrested on the night of September 25, 1998 after addressing a demonstration earlier that afternoon in Masjid Negara. He accused the police of severely assaulting him, physically and mentally.

In the past trial, Malek Husin told the court that he was slapped by the respondent, Borhan bin Haji Daud when he was arrested. Then he was stripped naked and blindfolded during the interrogation period. He was physically assaulted for about 60 times, beaten-up and hit hard on the head until he passed out. He was also forced to swallow liquid with terrible stench, which deemed to be urine. His interrogators also threatened to inject him with the HIV/AIDs virus.

Malek Husin filed his suit civil suit in March 1999, naming special branch officer Borhan Daud, the then police chief Abdul Rahim Noor and the government as respondents. On 18 October 2007, then Kuala Lumpur High Court judge Mohd Hishamudin Mohd Yunus, ruled that Malek Husin’s detention during the Reformasi demonstrations in 1998, were made in bad faith under Article 5 of the Federal Constitution. He was rewarded RM 2.5 Million for the damages.

On the 25th March, The Court of Appeal’s convened by a panel of three judges, reversed the High Court decision and ruled that Malek Husin detention was lawful and rejected his allegations of torture while in custody. The Court of Appeal thus ruled that Malek Husin will not receive the damages awarded to him by the High Court and ordered Malek Husin instead to pay RM50, 000 in costs.

SUHAKAM’s Positive Efforts Must Continue

SUARAM commends the Human Rights Commission of Malaysia (SUHAKAM) for sending an official monitoring team to the Anti ISA candlelight vigil on 1 August 2010 at Padang Timur Dataran MBPJ, Petaling Jaya. This was in response to an earlier request by SUARAM and Gerakan Mansuhkan ISA (GMI) to send a monitoring team for the vigil. The vigil was held to commemorate the passing of the Internal Security Act (ISA) 50 years ago and to call for the abolition of the ISA.

SUARAM notes that SUHAKAM Commissioners James Nayagam and Muhammad Sha’ani, accompanied by their five officers, were present before the vigil began and also at the Petaling Jaya police headquarters where those arrested were brought. They continued monitoring at the police station until the last person was released at approximately 4.50am.

This is indeed a positive step forward following SUHAKAM’s refusal to do the same exactly one year ago, in the massive anti-ISA rally in August 2009, which subsequently saw 589 individuals being arrested.

Such renewed efforts in SUHAKAM’s work is indeed welcomed and is especially timely in view of the continued occurrence of grave violations of human rights in the country. SUHAKAM’s latest effort is a glimpse of what the Human Rights Commission that Malaysia could and ought to do to fulfil its mandate as a credible national human rights institution and expected role as a public defender of human rights.

Notwithstanding this, SUARAM expresses concern over the government’s disregard of SUHAKAM’s previous recommendations. The arrests made during the anti-ISA candlelight vigil on 1 August 2010 were the latest of the many instances of the government’s refusal to comply with SUHAKAM’s numerous recommendations on peaceful assembly, including those contained in the Commission’s reports of its public inquiries on the cases of the Kesas Highway incident (2001), the “Bloody Sunday” incident in KLCC (2006), and the Bandar Mahkota Cheras incident (2008). In the report of the public inquiry into the “Bloody Sunday” incident, for example, SUHAKAM recommended that “peaceful assemblies should be allowed to proceed without a license”. However, through the excessive use of force by the police and FRU personnel in dispersing participants of the candlelight vigil and previous peaceful assemblies, it is evident that SUHAKAM’s repeated recommendations to the Government have fallen on deaf ears.

SUARAM thus strongly calls upon the police and the Malaysian Government to respect SUHAKAM’s decisions and actions following the Anti ISA vigil and to implement all recommendations made by SUHAKAM.

Encouraged by the positive efforts by SUHAKAM, SUARAM lastly urges the Commission to revisit all recommendations made to the government with increased vigour. SUHAKAM must ensure that its improved efforts in the protection and promotion of human rights do not end with this instance.

OPEN LETTER

Arjunaidi Mohamed
Ketua Polis Daerah Petaling Jaya
Ibupejabat Polis DaerahPetaling Jaya
Polis Diraja Malaysia
Petaling Jaya
Jalan Penchala
46050 Selangor
Tel: 03-79662222
Fax: 03-79548740
5 August 2010

Sir,

We are writing to you to express our outrage and our strongest condemnation over the brutality and misuse of power by your personnel at the Anti ISA candlelight vigil on 1st August 2010 at Padang Timur MBPJ, Petaling Jaya. The candlelight vigil organised by Gerakan Mansuhkan ISA (GMI)

On 1st August, 29 persons were arrested at around Amcorp Mall Petaling Jaya and IPD Petaling Jaya for exercising their right to assemble peacefully as guaranteed under the Federal Constitution. As the Officer in Charge of Police District (OCPD) Petaling Jaya, your violent and heavy handed tactics in dispersing the peaceful assembly was highly unprofessional and uncalled for. Instead of acceding to the organisers’ request to negotiate terms for the vigil and providing time for the crowd to disperse peacefully, you ordered your officers to move in forcibly on the crowd which resulted in a situation of chaos and fear. In your arrogance, you even denied the legitimacy of the permit given by the Majlis Bandaraya Petaling Jaya (MBPJ) to the organisers.

Violence was brutally deployed when your officers moved in to arrest participants of the vigil. Those arrested were shoved, beaten, slapped, dragged, choked and verbally abused by your police officers. Even women were not exempt from the violence. Such extreme use of violence was highly unnecessary as those arrested would have cooperated when informed that they were being arrested. You exercised your powers arbitrarily and as such, you are to be blamed for the human rights violations that occurred on that night.

In addition to that, we condemn your various intimidation tactics such as deploying water cannon trucks and the Federal Reserve Unit (FRU) to frighten the good citizens who gathered outside the District Police Headquarters (IPD) Petaling Jaya in solidarity with those arrested. Vindictively, you also arrested another 3 individuals outside the IPD and deployed traffic police in the wee hours of the morning to summon the vehicles of those who were waiting outside the police station for the arrested to be released. However, we regard the intimidation of the highest order to be your action to compel the lawyers representing those arrested to give a separate witness statement. We condemn outright violation of the right to seek counsel and the rights of the lawyer when representing their clients.

Even though Section 27 of the Police Act provides police with arbitrary powers to allow or refuse permits for public gatherings, this provision is in contravention of Article 10 of the Federal Constitution of Malaysia which guarantees civil liberties with regards to the right to assembly and free speech.

As an OCPD, you should be ashamed of yourself for being a poor example as a leader to the younger and lower ranking police officers under your charge. As a member and leader of the police force, you should be setting an example to the officers under your charge by respecting fundamental human rights in your endeavours to protect the public from crimes. Contrary to this, you have shown not just your officers but the people of Malaysia that you exercise control over the public by inflicting fear and terror.

Due to the above, SUARAM demands that you publicly apologise to the participants of the candlelight vigil, those who were abused by your officers and the lawyers whom you have intimidated. We also urge you not to press charges against those who were arrested as they were merely exercising their Constitutional rights to assemble peacefully.

Like the activists and participants of the candlelight vigil, you are also a citizen of Malaysia. We believe that you would equally benefit from the preservation of the right to assembly and free speech that are essential in a democratic society.

Thank you.
Sincerely,
Suara Rakyat Malaysia (SUARAM)

Suhakam regrets police arrests, 30 GMI activists released

Monday, August 2nd, 2010 22:58:00 (malay mail)

PETALING JAYA: The Human Rights Commision of Malaysia (SUHAKAM) expresses its regret over the inability of the public to assemble peacefully during the 50 years of ISA vigil that took place on Aug 1 at Dataran Petaling Jaya. SUHAKAM was present at the event to observe and monitor the situation.

SUHAKAM, through its observation, found that the right to assembly was denied during the event as the authorities stopped the gathering and dispersed the crowds with much haste. Proper warning and ample time to disperse were not given by the authorities, thus resulting in a commotion where 22 men and 8 women were arrested because they were suspected as participants of the vigil.

SUHAKAM has consistently urged the Government to consider and take into account the recommendations made by the Commission on freedom of assembly as expressed in the reports relating to the Kesas Highway and KLCC “Bloody Sunday” Inquiries. SUHAKAM would therefore recommend that in the event where the police finds it necessary to control or disperse a crowd, proportionate and nonviolent methods should be employed.

SUHAKAM strongly reiterates its stand that the people have the right to participate in peaceful assemblies, as all citizens have the right to assemble peaceably and without arms as guaranteed by Article 10 (1) (b) of the Federal Constitution. The right to freedom of assembly is also guaranteed in the Universal Declaration of Human Rights (UDHR), Article 20 (1).

SUHAKAM also wishes to address the ordeal of the detainees of the vigil at the Petaling Jaya police station where the authorities requested the lawyers to provide separate witness statements. This unusual practice forced the lawyers to pull out from giving legal counsel to the detainees. Apart from that, SUHAKAM feels that the authorities could have expedited the process of bail at the police station as the detainees had to endure long hours before they could be released.

However, SUHAKAM wishes to record that full cooperation was extended by the Police to the Commission which enabled  SUHAKAM to observe and monitor the 50 years of ISA vigil and the recording of statements at the Petaling Jaya police station.

TAN SRI HASMY AGAM,
Chairman
Human Rights Commission of Malaysia

News source: http://mmail.com.my/content/45087-suhakam-regrets-police-arrests-30-gmi-activists-released

NATIONWIDE ANTI ISA RALLY IN CONJUCTION WITH 50 YEARS OF ISA: SUCCESS DESPITE OF POLICE BRUTALITY!

PRESS STATEMENT: 2 AUGUST 2010

NATIONWIDE ANTI ISA RALLY IN CONJUCTION WITH 50 YEARS OF ISA:  SUCCESS DESPITE OF POLICE BRUTALITY!

Suara Rakyat Malaysia (SUARAM) and Gerakan Mansuhkan ISA (GMI) strongly condemns the abuse of police powers in cracking down on peaceful Anti ISA candlelight vigils held simultaneously at several states such as Selangor, Penang, Perak, Kedah, Kelantan, Negeri Sembilan, Johor, Sabah and Sarawak.

POLICE BRUTALITY – A NEVER ENDING STORY!

The nationwide Anti ISA vigil was organized by GMI and SUARAM to oppose the Internal Security Act (ISA) in conjunction with the 50th anniversary since the ISA was enacted on 1st of August 1960. In total, 38 participants were arrested during the Anti ISA vigil including GMI Chairperson, Syed Ibrahim, and SUARAM Coordinators Nalini Elumalai, Ong Jing Cheng, Kohila (Secretariat Member), Choo Chon Kai (Penang Branch Secretariat Member) and Arutchelvan (Director of SUARAM). Although this number is comparatively lower than the Anti ISA Rally last year when 589 people including minors were arrested; the 38 arrests by the police yesterday were unnecessary as it was a peaceful vigil.

The police in Petaling Jaya, Penang and Kelantan were far more brutal and arrogant compared to the other states. Although intimidation by the police occurred in other states, the real “champion” of the brutality was the Petaling Jaya Police Chief Arjunaidi Mohamed. Arjunaidi was arrogant and completely unprofessional when dealing with the crowd. He did not allow time for the crowd to disperse or to put it bluntly; he did not know the proper process to disperse a peaceful assembly. In addition, his police officers were brutal and violent when arresting participants. Although the Bar Council and SUHAKAM Commissioners were monitoring the situation at the vigil, the actions of the police proved that they had complete disregard for the basic human rights.

These arrests are a case of abuse of power by the government machineries and a failure to protect and uphold the fundamental rights enshrined in the Federal Constitution. We are deeply shocked and disturbed by this blatant transgression of the rule of law.

THE ISA SHOULD BE REPEALED WITH IMMEDIATE EFFECT

Facing widespread criticism both at home and abroad, the ISA has badly damaged Malaysia’s reputation and this lead the government to finally propose a review of the ISA. However, it is clear that they have no intention of relinquishing this formidable and invaluable crutch of power. They are going all out to sell the idea of amendment, rather than repeal. Considering the history of the ISA, it seems very likely that these amendments will be minor and merely cosmetic, and will not achieve anything in terms of removing its elements of injustice and violation of human rights.

In conjunction with 50 years of ISA, we challenge the Prime Minister Najib Razak to abolish the ISA immediately. SUARAM and GMI will never compromise on the issue of detention without trial. All Acts which allow or have resulted in oppression, torture and abuse of people should have no place in the statutes, and should be abolished without delay. We once again remind the government that we will not stay quiet until we witness the draconian ISA abolished!

Demands Reiterated

SUARAM strongly urges the government to repeal all detention-without- trial laws as these legislations severely violate fundamental human rights. SUARAM also reiterate several other longstanding demands to the government, including:

The immediate establishment of an independent and effective oversight monitoring body to ensure accountability in the police force such as the Independent Police Commission on Misconduct and Complaints (IPCMC) as recommended by the Royal Police Commission

SUARAM and GMI also would like to take this opportunity to thank all the brave Malaysians who turned up yesterday to support the call of the abolition of the ISA. In addition, we would like extend our gratitude to SUHAKAM and Bar Council Human Rights Committee for sending official monitoring teams and finally, to the lawyers from the Bar Council Legal Aid Centre for their roles in upholding Human Rights in Malaysia.

Salam Perjuangan.

Released by,

Nalini.E
SUARAM Coordinator and GMI Secretariat