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Lawyer: It can be very easy to abuse the EO
Malaysia Kini - July 26, 2011
There is also an example of police detaining a person accused of being a football bookie despite that person having no such history, nor having travelled overseas, despite what the EO charge stated.
We have also seen an example of a 21-year-old student, Mohd Faiz Sarparim, detained under the EO for motorcycle theft, even though evidence suggests otherwise. Faiz was freed, but only after the determined and perserverent actions of his parents in clearing his name.
And now Malaysia has the dubious distinction of detaining six politicians from Parti Sosialis Malaysia, including the MP for Sungei Siput Dr D Jeyakumar, under the EO from July 2, a move that has received, and continues to receive, local and international condemnation.
This is the first time an MP has been detained under the EO, a law that provides for detention without trial for 60 days – detention that can be extended to two years, just like the draconian Internal Security Act that is now being amended.
There now, again, a great furore over the EO, which has seen much criticism over the years. However, not many Malaysians know much about it, how simple it is to abuse it or what happens to a detainee after being put into one of the four detention camps nationwide.
Some of the above are only a few examples of how the EO can be wrongly used to detain innocent people.
Most EO detainees arrested between 2008 and 2010
Criminal lawyer Baljit Singh Sidhu said 20 to 30 percent of the EO detainees are innocent, and they have been detained because they were not able to afford legal representation.
Most of those detained under the EO, Baljit said, had been picked up between 2008 and 2010, when Musa Hassan was inspector-general of police.
"I do not know the reasons for the detentions, but that is what I have observed over the years," said the practising lawyer and author of the book Criminal Litigation Process.
"The cases of the man accused of being a football bookie and the man detained merely because he was a business rival to another are just some cases I handled, and represent some of the abuses to the legislation as it is."
Baljit said while the EO may have its good intentions, this is not reflected and that some of the abuses have been "quite overwhelming".
Baljit said there were three reasons why the police used the EO – to secure public order, suppress violence and prevent crimes of violence.
He said the EO was normally used on gang members, suspected drug peddlers or dealers – but now even in cases of motorcycle theft and, most recently, on politicians.
"Normally, the suppression of violence and prevention of crimes are used together as reasons to detain a person. However, in the instance of the detention of the six PSM members, the authorities used the excuse of 'securing public order' for the July 9 Bersih 2.0 rally," he said.
"A police inspector must sign the order if a person is to be detained for 24 hours. If the person is to be detained for another 48 hours, an officer with the rank of assistant superintendent has to sign the order.
If the detention is for a period of up to 30 days, an officer with the rank of assistant commissioner can do so, or an officer with a deputy superintendent rank can seek the approval of the IGP to do so.
These, Baljit said, were the processes that one detained under EO had to go through. However, for a detention period of more than 60 days, the order must be signed by the home minister.
For those detained under the EO, the order will have to come from the deputy minister (in this case Abu Seman Yusop), he said, while for those detained under the ISA, the order would have to be made by Hishammuddin Hussein.
Baljit said a habeas corpus application could be filed to free a person within the first few days of detention, while a similar application could be made after the minister signed the detention order.
"There are cases of lawyers being successful with their habeas corpus applications before the High Court, only to see the deteinee re-arrested. If we fail in the High Court, the matter goes immediately to the Federal Court.
"There have been instances in the past where persons have been re-arrested, despite being freed by the Federal Court. However, there is less of an occurrence now at the Federal Court. When this (re-arrest) happens at the High Court, then we have to file contempt proceedings against the police and they will be released. This shows that, at times, police do not comply with or respect court orders," he said.
Conditions in the camp
There are four camps where those detained under for periods of two years or more under the EO are placed – in Simpang Rengam, Johor; Muar, Johor; Batu Gajah, Perak; and Machang, Kelantan.
Baljit said the only facility for women detainees is in Batu Gajah, Perak, where about 300 people are now being held. The others, including the one in Batu Gajah, cater to men. The Muar detention centre, which can fit 200 people, is specifically for suspected drug dealers. "The facility in Machang is new and can hold more people, while the one in Simpang Rengam can accommodate up to 2,000 detainees," he said.
"When one is detained at a facility for two years, lawyers can only see them three times a year. If we want to meet with them more than three times, we will have to write in to the camp commandant. Those detained can meet with a three-member advisory panel, of whom only one is legally qualified."
"It is before this panel that the detainee can produce a lawyer or evidence to support his case for release. Sad to say, only 10 per cent of cases brought before the panel result in a release," he said, adding that there were no proper rehabilitation programmes at the centres.
Baljit said most of those detained under EO were aged between 20 and 40 years, and he has also come across detainees as young as 18-plus, while the person detained longest under the EO that he had met had been held for eight years. Recently, there have been reports of a 13-year-old being detained under the EO.
Difficult to be released from EO detention
The criminal lawyer said that even after a person is released from the EO, he or she could be placed under restricted residence. "I have handled cases where the authorities placed my clients, who could be a Hindu, in a rural area where there is no Hindu temple, or a Malay who is placed in Chinese new village.
How do you expect these people to be rehabilitated and interact with society when they are placed in such areas? As a result, lawyers have to make applications for them to be put in areas where they can at least practise their religion," he said.
Looking back, Baljit said when one is detained under EO, it is relatively difficult to be released and the process is prone to abuses of detention, without any proper charge as to the person's crime.
"If you look at some of the allegations against persons faced under EO, there could repeats. For example, at this time and day in that accusation of stealing a motorcycle, there has been no mention as to who the owner is.
"I have clients swearing they have not been at the place the offence was said to have taken place, but they are still detained under the EO.
"I believe the police are sometimes using the EO to show improvments in their success rate of solving crimes or to reduce the crime statistics, even if such criminal cases are not actually resolved," Baljit added.
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