US State Department Report on Human Rights in Malaysia - 3 of 8

["M.G.G. Pillai" <pillai@mgg.pc.my>]

d. Arbitrary Arrest, Detention, or Exile

Suspects in some crimes (called "seizable offenses") may be arrested without
warrants; suspects in other crimes ("nonseizable offenses") may be arrested
only based on a warrant from a magistrate. Suspects in some crimes
("bailable offenses") may present bail at the police station according to a
schedule. Bail is not available for other crimes ("nonbailable offenses")
and sometimes also is denied in other circumstances (e.g., great risk of
flight). Police may hold suspects for 24 hours without charge. Police may
request a magistrate to extend the period of remand without charge for up to
2 weeks. After this extension, the police, if they wish to hold the suspect
must charge him and seek an order of detention from a magistrate. In some
cases, police have released suspects under remand and quickly rearrested
them on new but similar charges. In general, police practice is in accord
with these legal provisions.

Police may deny remand prisoners access to legal counsel and routinely do
so. During this period of remand, police also may question suspects without
giving them access to counsel. Police justify this practice as necessary to
prevent interference in ongoing investigations. Judicial decisions have
upheld this practice. Defendants' advocates say the lack of access to
counsel seriously weakens defendants' legal rights.

Crowded, understaffed courts and the legal safeguards and appeals available
to the accused often result in lengthy pretrial detention, sometimes lasting
several years. In 1998 the prisons director general said that roughly half
of the prison population consisted of prisoners who had not yet been
sentenced. Most of these prisoners either have been convicted and are
awaiting sentence or are in the midst of their trials. Detainees awaiting
trial constitute much less than half of all detainees.

Three laws permit the Government to detain suspects without judicial review
or the filing of formal charges: The 1960 Internal Security Act (ISA), the
Emergency (Public Order and Prevention of Crime) Ordinance of 1969, and the
Dangerous Drugs Act (Special Preventive Measures) of 1985. The press
reported one ISA detention during the year: In February police detained a
computer technician for alleged involvement in the falsification of official
documents. Some opposition and NGO leaders contended that the computer
technician might have been involved in the political reform movement.

According to the Home Ministry, in late 1998 223 persons were being detained
under the ISA. No later figures are available. During the year, police
detained 1375 persons under the Dangerous Drugs Act (Special Preventive
Measures). It is not known how many were detained at year's end. The
Government has not disclosed how many persons are detained under the
Emergency Ordinance.

Enacted more than 30 years ago when there was an active Communist
insurgency, the ISA empowers the police to hold for up to 60 days any person
who may act "in a manner prejudicial to the security of Malaysia." The Home
Minister may authorize further detention for periods of up to 2 years. Those
released before the end of their detention period are subject to "imposed
restricted conditions" for the balance of their detention periods. These
conditions limit their rights to freedom of speech, association, and travel
outside the country.

According to the Government, the goal of the ISA is to control internal
subversion. In November 1998, the Deputy Home Minister said that in the
previous 10 years no person had been detained under the ISA beyond the
initial 60-day period for political reasons other than Communist activity.
He said that of the 867 persons detained for more than 60 days, 359 were
involved in Communist activities, 447 falsified documents or otherwise
abetted illegal alien smuggling, 21 were "religious extremists," 9 "leaked
intelligence secrets," and 1 was associated with the Free Aceh Movement. He
further said that of the 223 persons detained at the time, 131 were for
document forgery, 89 for illegal alien smuggling, 2 for deviant Islamic
teaching, and 1 for activities associated with the Free Aceh Movement. Some
of these detainees (exactly how many has not been disclosed), including the
Islamic teachers and the alleged Free Aceh Movement leader, have since been
released.

As these figures indicate, the ISA often is used against nonpolitical
crimes, including against what the Government considers "deviant" Muslim
groups. The Government states that deviant groups pose a danger to national
security because of their radical beliefs. The ISA, and the threat of the
ISA, also are used to intimidate and restrict political dissent. For
example, in 1998 the police detained Anwar Ibrahim and 27 of his followers
under the ISA, after a series of largely peaceful antigovernment
demonstrations. The Government claimed that the demonstrations threatened
national security. By the end of 1998, Anwar and the others either had been
released or detained under criminal charges.

Security authorities sometimes wait several days after detention before
informing an ISA detainee's family. Even when there are no formal charges,
the authorities must inform detainees of the accusations against them and
permit them to appeal to an advisory board for review every 6 months.
However, advisory board decisions and recommendations are not binding on the
Home Minister, are not public, and often are not shown to the detainee. In
the past, some ISA detainees have refused to participate in the review
process under these circumstances.

Amendments to the ISA in 1997 sharply circumscribed judicial review of ISA
detentions. Although the Bar Council has in the past asserted that
detentions under the ISA should be subject to judicial review on both
procedural and substantive grounds, the courts have not concurred with this
interpretation and review ISA detentions only on technical grounds.
Detainees freed on technical grounds nearly always are detained again
immediately.

In May the Government announced new procedures for ISA detention. According
to press reports, the new amendments stipulated that senior police officials
must concur with ISA detentions. Details were not reported. Deputy Minister
in the Prime Minister's Department Datuk Ibrahim Ali claimed that the
amended procedures would help prevent misuse of the ISA.

Opposition leaders and human rights organizations continue to call on the
Government to repeal the ISA and other legislation that deprive persons of
the right to defend themselves in court, as they have for years. During the
year, several ruling coalition party politicians and organizations also
called for the repeal of the ISA. Other ruling coalition parliamentarians
called for the ISA to be strengthened. The Government stated that the ISA
still was necessary and would not be repealed.

Under the 1969 Emergency Ordinance, which was instituted after intercommunal
riots in that year, the Home Minister can issue a detention order for up to
2 years against a person if he deems it necessary to protect public order,
or for the "suppression of violence, or the prevention of crimes involving
violence." In fact, the Government has used the Emergency Ordinance for
other reasons. No emergency ordinance detentions were reported during the
year, and the Government has not disclosed the total number of persons now
detained under this law.

Provisions of the 1985 Dangerous Drugs Act (Special Preventive Measures)
give the Government specific power to detain without trial suspected drug
traffickers. The suspects may be held for up to 39 days before the Home
Minister must issue a detention order. Once the Ministry has issued an
order, the detainee is entitled to a hearing before a court. In some
instances, the judge may order the detainee's release. Suspects may be held
without charge for successive 2-year intervals with periodic review by an
advisory board, whose opinion is binding on the Home Minister. However, the
review process contains none of the due process rights that a defendant
would have in a court proceeding. The police frequently detain suspected
narcotics traffickers under the special preventive measures after the
traffickers are acquitted of formal charges--often as they leave the
courtroom. During the year, the Government detained over 1,300 persons under
this law. It is not known how many were detained at year's end.

Immigration laws are used to detain possible illegal aliens without trial or
hearing. The detainees are not accorded any administrative or legal hearings
and are released only after their employers prove their legal status. Those
who can produce legal documents normally are released immediately; those who
cannot prove their legal status often are held for extended periods before
deportation. Illegal aliens are kept in detention centers that are separate
from prisons (see Section 1.c.).

Law enforcement authorities also used the Restricted Residence Act to
restrict movements of criminal suspects for an extended period. The act
allows the Home Ministry to place criminal suspects under restricted
residence in a remote district away from home for 2 years. The Ministry is
authorized to issue the banishment orders without any judicial or
administrative hearings. Human rights activists have questioned the need for
this law, which was passed more than 60 years ago under very different
circumstances, and have called for its repeal. The Government has continued
to justify the act as a necessary tool and has used it in the recent past
primarily against vice and gambling offenses. In July the Terengganu state
chief of police warned publicly that operators of illegal gambling machines
would be banished under the act if they did not cease their activities. In
August Director-General of the Anticorruption Agency (ACA) Datuk Ahmad Zaki
Husin proposed using the act to banish officials suspected of corruption.
After the Bar Council expressed concerns over the proposal, Zaki clarified
that the Restricted Residence Act might be used only for "syndicated graft."
In August the Deputy Prime Minister warned "get-rich-quick" scheme operators
that they might face banishment under the act. The Government has not
disclosed how many persons are subject to the Restricted Residence Act and
no accurate estimate is available.

In 1997 the Malaysian Bar Council expressed its concern about 44 prisoners
held "at the pleasure of the Sovereign" for inordinate periods, often well
exceeding the maximum sentences for their original crimes. In one case, a
prisoner had been held for 37 years. Most of these "forgotten prisoners"
committed their crimes as minors or while of unsound mind. In 1998 the
Attorney General stated that the Government had expedited hearings on the
cases. No results of these hearings have been reported.

Section 396 of the Criminal Procedure Code allows the detention as a
material witness of a person whose testimony is necessary in a criminal case
if that person is likely to abscond. In August an Indonesian woman was
released after being detained for over a year as a material witness, though
she herself was accused of no crime.

The Government does not use forced exile.

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