Thursday, March 23, 2017

HRD Lena Hendry fined RM10,000...

 

See earlier related posts:-   

ARTICLE 19, ALIRAN, PROHAM, NUBE,WH4C & 111 Others say Drop Charges against Lena Hendry 

Lena Hendry - Drop Charges says ICJ, Article 19, FIDH, Front Line, OMCT & 116 other groups 

HR Defender Lena Hendry Acquitted by Court - Draconian law remains..?

HRD Lena Hendry found Guilty - A Sad day for Human Rights?



Lena Hendry fined RM10,000 for airing documentary

 | March 22, 2017 
 
Human rights activist found guilty last month of screening documentary on Sri Lankan civil war, No Fire Zone: The Killing Fields of Sri Lanka.

VIDEO INSIDE
Lena-Hendry_law_600

KUALA LUMPUR: Human rights activist Lena Hendry was fined RM10,000 for airing an uncensored documentary on the Sri Lankan civil war in 2013.

Magistrate Mohd Rehan Mohd Aris meted out the fine after the court had deliberated an appropriate sentence to be imposed on the Pusat Komas programme coordinator.

“After reading the submissions from the defence and prosecution, the court decided to impose a RM10,000 fine on the accused,” he told the packed courtroom.

Lena faces a one-year jail term if she fails to settle the RM10,000 fine.

The court also ordered Lena to settle the fine by today.

Last month, the court found Lena guilty of the charge under Section 6(1)(b) of the Film Censorship Act for showing No Fire Zone: The Killing Fields of Sri Lanka, a documentary on the Sri Lankan civil war that lasted for 26 years.

Lena committed the offence at the Kuala Lumpur and Selangor Chinese Chamber of Commmerce Hall here on July 3, 2013.

The court granted her a stay of execution on her jail sentence pending any appeal, however, Lena decided to pay the fine.

She was first acquitted by the same Magistrate on March last year at the end of the prosecution’s case.

However, the High Court overturned the acquittal and order Lena to enter defence for her charge.

Lena was represented by lawyer New Sin Yew and Joshua Tay while deputy public prosecutor Nurakmal Farhan Aziz appeared for the prosecution.- FMT News, 22/3/2017

Wednesday, March 22, 2017

Siti Noor Aishah - POCA,POTA..dimansuhkan - Resolusi Badan Peguam

Kes Siti Noor Aishah Atam mendapat perhatian lebih 800 peguam yang menghadiri Mesyuarat Agung Badan Peguam pada 18/3/2017 - di mana satu Resolusi mengenai Siti Noor Aishah dan mangsa lain Akta POCA dan akta lain yang membenarkan penahanan tanpa bicara telah diluluskan. 

Resolusi menuntut agar POTA, POTA dan akta sedemikian yang memberikan penahanan tanpa bicara dimansuhkan. Sekiranya anda ditahan atau dihadkan kebebasan di Akta membenarkan tahanan tanpa bicara sedemikian, anda tidak ada hak untuk mencabar SEBAB penahanan. Yang bersalah pun boleh dengan senang dimangsakan. Mahkamah Tinggi telah mendapati Siti tidak bersalah dan telah bebaskan beliau tetapi terus selepas itu menjadi mangsa akta tanpa bicara...

Bila polis tahan anda, mereka hanya boleh tahan maksima 24 jam - jika mahu tahan lebih lama, mereka perlu bawa orang yang disyaki kepada Majistret dan seteruskan dapatkan perintah reman daripada Majistret. Majistret akan mengambil kira hujahan pihak polis, orang yang disyaki(atau peguam beliau) dan juga akan mengkaji Diari polis untuk menentukan apakah penyiasatan yang sudah dilakukan. Berasaskan semua ini, Majistret akan memutuskan sama ada tahanan reman dilanjutkan atau tidak, serta untuk berapa lama secara wajar...

Tetapi jika POCA atau POTA digunakan, budibicara Majistret terus dirampas. Apa yang diperlukan hanya kenyataan polis dan terpaksa Majistret memberikan perintah reman 21 hari. Selepas itu, jika polis bawa kenyataan polis dan kenyataan pendakwa raya, terpaksa Majistret melanjutkan reman untuk 38 hari.

Teruk lagi jika SOSMA digunakan, tak perlu pun di bawa kepada Majistret. Polis sendiri dapat lanjutkan reman untuk 21 hari..

Sejak Mei 2014, POCA bertambah bahawa - dulu dihadkan kepada jenayah melibatkan kekerasan dan ugutan...tetapi kini boleh dipakai untuk semua jenayah didalam Kanun Keseksaan...dan asalkan 2 atau 3 orang terlibat, boleh dipakai. Sama ada ia digunakan secara betul atau ikut had yang ditetapkan, kita tidak akan tahu secara pasti - kita kena percaya polis dan/atau kerajaan UMNO-BN. Kini, Mahkamah sendiri tidak boleh lagi mengkaji SEBAB mengapa seseorang dijadikan mangsa POCA dan/atau POTA...Tak buat salah pun boleh jadi mangsa - dan tak ada cara kini untuk membetulkan keadaan dan mendapatkan keadilan...

Kalau pakai POCA atau mana-mana Akta Tanpa Bicara - senang sangat bagi polis dan/atau pentadbiran kerajaan...tak ada keterangan pun boleh ...kan tak boleh kita bawa kes kepada Mahkamah untuk mengkaji semula alasan dan asas pengunaan Akta tersebut...

Akta sedemikian harus dimansuhkan...Baca Resolusi Badan Peguam yang telah disokong majoriti besar peguam yang hadhir  - hanya beberapa yang membantah atau berkecuali...


Malangnya media massa tak melapurkan dengan jelas kandungan Resolusi ini...yang saya anggap sangat penting untuk rakyat Malaysia...hari ini mungkin anda selamat, tetapi besuk macam mana - anda atau kenalan saudara akan menjadi mangsa...

Dalam demokrasi, Mahkamah memainkan peranan penting - untuk memastikan tidak ada salahlaku pihak polis atau pentadbiran kerajaan...Justeru, rakyat yang dimangsakan boleh menuntut Mahkamah mengkaji semula(judicial review, dll) mana-mana keputusan kerajaan(Menteri,polis, dll...) - tetapi Akta tanpa bicara menghalang Mahkamah melihat sama ada SEBAB dan atau ASAS pengunaan Akta tanpa bicara ini digunakan adalah betul dan/atau wajar...Kuasa Hakim dan Mahkamah dirampas...

Jika anda atau kenalan anda menjadi mangsa Akta tanpa bicara, bawa kepada perhatian Majlis Peguam, SUHAKAM, dll...


Mangsa POCA, POTA...biasa bukan orang kenalan ramai atau 'celebriti' - tetapi warga biasa saperti Siti Noor Aishah ...Adakah PAS, DAP, PKR, Amanah, MCA, MIC, Gerakan, UMNO, dll...prihatin mengenai rakyat biasa saperti ini? Bila tokoh politik jadi mangsa, barulah heboh dan bising...



Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent
Whereas:

(1) The case of Siti Noor Aishah Atam highlighted the very real possibility that innocent persons are wrongly made victims of draconian laws that allow for detention without trial.  Most victims are totally denied the right to a fair trial, but Siti Noor Aishah Atam, despite being acquitted by the courts, was still was subjected thereafter to detention without trial laws.

Detention Without Trial Laws

(2) Detention without trial continues to exist in Malaysia despite the fact that the draconian Internal Security Act 1960 (“ISA”) and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 have been repealed.
(3) The Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”), which came into force on 31 July 2012 vide section 32(1), and repealed the ISA.  The Emergency (Public Order and Crimes Prevention) Ordinance 1969 was also repealed in 2013.

(4) The Dangerous Drugs (Special Preventive Measures) Act 1985, which provides for detentions and/or restrictions without trial, still remains.  Vide Resolution under subsection 1(4) [PU(B) 241/2015], this Act was extended for a further period of five years with effect from 15 June 2015.

(5) Other laws that provided for detention without trial today include the Prevention of Crime Act 1959 (“POCA”), following amendments in 2014, and the new Prevention of Terrorism Act 2015 (“POTA”).

(6) Vide Prevention of Crime (Amendment And Extension) Act 2014, a new Part IVA entitled “Detention Orders” was inserted, which now allows for detention without trial orders.  Section 19A, amongst others state, “. . . . (1) The Board may, after considering the report of the Inquiry Officer . . . . and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime . . .”.

No Judicial Review to Challenge the Reasons One is Victimised

(7) Like the now repealed draconian ISA, there shall be no judicial review with regards the reasons or justification of detention and/or restriction orders under these detention without trial laws, but only “in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.  Section 15A(1) POCA states that “ . . . . There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.

(8) POCA’s usage which was originally limited for triads or crime gangs have been significantly extended vide Prevention of Crime (Amendment of First and Second Schedule) Order 2014 [PU(A) 122/2014], which came into force in 2 May 2014.  Whilst previously limited for those persons who belong to any group, body, gang or association of 5 more persons who associate for purposes which include the commission of offences “involving violence or extortion” — it was extended to all offences under the Penal Code, and persons who also consort with these groups of two or more persons.  As such, now any person who allegedly commits any Penal Code offence with two or more persons can now be subjected to POCA, irrespective of whether it involved violence or not.

(9) POCA now can also be used against persons allegedly involved in the trafficking in dangerous drugs, in trafficking of persons and smuggling of migrants, and those who benefit from such actions.  It can be used against those who allegedly engage in the commission or support of terrorist acts under the Penal Code.  It can also be used for persons who recruit, or agree to recruit, another person to participate in the commission of an offence.

(10) POCA can also be used against “. . . . all persons who, being not less than twenty-one years of age, have since attaining the age of seventeen been convicted on at least three occasions of offences involving dishonesty or violence”.

(11) The breadth of the application of POCA is draconian, and it opens to the possibility of unchecked abuse by the police, public prosecutors and the Government.  It undermines the safeguards to prevent a miscarriage of justice.

Remand Devoid of Judicial Discretion

(12) With regard to post arrest remand for the purposes of investigation, Parliament amended the Criminal Procedure Code, restricting also the permissible length of remand orders by Magistrates (section 117 of the Criminal Procedure Code), where even “if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application”.  The Magistrate is empowered to exercise his/her judicial discretion, after considering the representations made either by the accused himself; or through a counsel of his choice; the representations of the police or the prosecutors; including also considering what the police had done since arrest as contained in the police diary.  Now, even if dissatisfied with the decision of the Magistrate, there is still the possibility of revision by the High Court Judge.

(13) Parliament amended the law concerning remand, possibly to prevent abuse of remand but all these safeguards are ignored if POCA, POTA and/or SOSMA is/are used.

(14) When POCA is used, all that is needed is a production of a statement in writing signed by a police officer not below the rank of Inspector, stating that there are grounds for believing that the name of that person should be entered on the Register, and the Magistrate has no choice but to remand the person in police custody for a period of 21 days. (Before the 2014 amendment, the required statement was of a police officer not below the rank of Assistant Superintendent — now just an Inspector will suffice.)  Judicial discretion of the Magistrate in the remand proceeding is ousted.  The right to be heard of the suspect and/or his lawyer is denied.

(15) For a further remand, all that is required is a statement in writing signed by the Public Prosecutor and a statement by a police officer not below the rank of Assistant Superintendent, the suspect will be remanded for a further period of 38 days.

(16) The same when POTA is used, judicial discretion of the Magistrate is ousted.  On the production of the statements by the police, and subsequently the police and public prosecutor, the Magistrate has no choice but give the remand order of 21 days, and thereafter 38 days.  The right to be heard is denied, and the judicial discretion of a Magistrate is ousted.

(17) When SOSMA is used, there is not even the need to bring the suspect before the Magistrate.  A police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than 28 days, for the purpose of investigation.

Right to Consult and/or Be Represented by Lawyer Curtailed and/or Denied to Persons Subject to Inquiry and/or Witnesses

(18) Under POCA, the right to be represented by a lawyer during the inquiry is limited, as stated in section 9(5): “Neither the person who is the subject of the inquiry nor a witness at an inquiry shall be represented by an advocate and solicitor at the inquiry except when his own evidence is being taken and recorded by the Inquiry Officer.”

(19) There is not even the right to be present and/or represented during the inquiry when evidence is taken from other witnesses and/or sources, let alone the right to cross-examine let alone challenge alleged evidence against the victim of these detention without trial laws.

(20) It must be noted, that the right to be represented by a lawyer is denied to any person/s in detention and/or confined in prison when the Inquiry Officer conducts his inquiry.  Section 9A(2) states: “(2) Nothing in this section shall authorise the attendance of the subject of the inquiry or his advocate and solicitor or representative, if any, at the place of detention or prison.”
(21) There is also no right of representation when the Inquiry Officer submits his report to the Board of Inquiry.  There is also no right to even make a submission for the consideration of the Inquiry Officer and/or Board of Inquiry before a final decision is made.  Section 9(6) states: “The Public Prosecutor may appear at an inquiry to assist the Inquiry Officer.”  But no such right to the victim or his lawyer.

(22) The process is grossly unjust, and an innocent victim like Siti Noor Aishah Atam can easily and/or unjustly be deprived of his/her liberty, rights and freedom. 

Danger of Abuse, Corruption and Miscarriage of Justice

(23) Corruption has always been suspected when it comes to the police and/or prosecutors.  This possibility of corruption is escalated when detention without trial laws and SOSMA are used, especially when judicial monitoring of administrative decisions is stifled and/or excluded.  The right to be heard and the right to a fair trial are denied.

(24) The Malaysian Anti-Corruption Commission (“MACC”) stated that about 54% of civil servants under the age of 40 are corrupt (New Straits Times and Malaysiakini, 8 Mar 2017), and this is most disturbing.

(25) When persons are not charged, tried and convicted, there is also the possibility that others involved in the crime will never be revealed, and will simply escape having to face justice.

(26) Detention without trial laws encourage a lackadaisical attitude and inefficiency in the police force and other enforcement and prosecution officers, as there is now no more the need to find sufficient evidence as required by law to prove in court that one is guilty of a crime.  The case of Siti Noor Aishah Atam is evidence of this, when even the books for which she was arrested for in the first place were not even books banned in Malaysia.  The courts in that case acquitted Siti at the close of the prosecution case, as the prosecution failed to prove a prima facie case.

(27) When innocent persons are placed under detention without trial, it is also possible that the true criminals will never be caught and brought to justice.  Police may just close the files, believing that they have managed to get the real perpetrator, when the persons in detention may be some innocent person.  The belief of the police and/or prosecution in the guilt of a person is immaterial, as what is important is for the court to decide on the guilt of an accused person, also noting the large number criminal trials that have ended with acquittals.

(28) Victims of crimes also deserve to see justice be done, and this can only happen if there is a fair trial, a conviction and a sentence.  In the absence of a conviction, victims and their families are also denied the possibility of subsequently commencing a legal action claiming for damages and/or compensation.

(29) With the unavailability of judicial review of the reasons or justifications of the actions and/or decisions of the police, public prosecutors and/or the Board of Inquiry, including the imposition of remand orders, detention orders and/or restrictions / conditions on the victims of POCA and such detention without trial laws, the likelihood of miscarriage of justice is extremely high.  Innocent persons will be wrongly deprived of their liberty, freedom and human rights.
Lost Right to Rely on the Double Jeopardy Principle

(30) Worse still, for these victims of detention without trial laws is that they can always at any time during their detentions and/or any time later, be charged, convicted in court and sentenced for, the very same offences for which they were subjected to detention and/or restrictions / conditions under POCA and such detention without trial laws. 

(31) Section 19G of POCA states: “The detention of any person under this Part shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention.” 

(32) The double jeopardy principle that prevents an accused person from being tried again on the same charge, following a valid acquittal or conviction, will not apply.

Siti Noor Atam Aishah — Proof of the Abuse of SOSMA and POCA?

(33) Siti Noor Aishah Atam — a 29-year-old Malaysian woman and a University of Malaya Masters of Usuluddin (Islamic Studies) student — was arrested on 22 Mar 2016, for the alleged possession of 12 books related to on Jemaah Islamiyah (“JI”), Islamic State (“IS”) and Al-Qaeda (“AQ”) at her residence.  She was charged under section 130JB(1)(a) of the Penal Code, tried, acquitted and was released by Judicial Commissioner Datuk Mohamad Shariff Abu Samah in the High Court [Di dalam Mahkamah Tinggi Jenayah 4 Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur Perbicaraan Jenayah No: 45SO-7-5/2016].

(34) The Public Prosecutor at the High Court applied that Siti continue to be detained under SOSMA pending the filing of the appeal, which the court denied.  A BERNAMA report carried by Sinar Harian stated: “. . . . Mahkamah turut menolak permohonan Timbalan Pendakwa Raya Mohamad Mustaffa P. Kunyalam untuk menahan Siti Noor Aishah di dalam penjara mengikut Seksyen 30(1) Akta Kesalahan Keselamatan (Langkah-langkah Khas) 2012 (SOSMA) sementara menunggu rayuan difailkan oleh pihak pendakwaan terhadap pembebasan tertuduh. . . .’ (BernamaSinar Harian, 29 Sept 2016).

(35) It was reported (Malaysiakini, 29 Nov 2016), that Siti Nor Aishah, after release was thereafter arrested and detained under POCA until Saturday (26 Nov 2016), and was then fitted with an electronic monitoring device (“EMD”), and asked to report every Friday at the police station in Bukit Aman for eight weeks.

(36) She would also most likely been subjected to Restriction Orders (or Police Supervision Orders) under POCA, which could include inhibitions with regard to movement, restrictions as to the people she can communicate with, and even restrictions with regard access to the internet and social media.

(37) The re-arrest and detention under POCA in the case of Siti Noor Aishah Atam may also be an act of contempt of court.

(38) Siti Noor Aishah Atam’s case provides a good example, to suggest that many (if not all) of the persons who are currently detained and/or restricted may be innocent. 

Compensation for Deprivation of Liberty, Freedoms and Rights

(39) A person arrested and detained by police or the authorities suffers more than the loss of liberty.  It also affects his/her employment and/or income generation activities.  It impacts not just on his/her good name, and also causes much suffering to the family and dependents, including children.

(40) All the more unjust is that these detention and/or restrictions are with regard to a person not being accorded even the right to heard and a fair trial — not even the right to a judicial review of the reasons for his loss of liberty.

(41) As such, those under detention without trial laws must be presumed to be innocent.  The Universal Declaration of Human Rights, in Article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

(42) There is a need for the provision of monetary compensation and damages caused by the unjust deprivation of liberty by the State.  It is most unjust for these innocent persons not to be compensated for their loss of liberty, freedom and rights.  There are provisions in other jurisdictions.

(43) The provision of such compensation payable by the Government would also deter police officers and others from unnecessarily detaining persons using POCA, POTA and/or SOSMA.

SOSMA — A New ESCAR

(44) The Malaysian Bar opposed the passing of the Essential (Security Cases) Regulations 1975 (“ESCAR”), which were promulgated to amend the procedural and evidential rules in relation to trials for offences against national interest.  The Regulations brought draconian changes in the basic rules of evidence and the judicial discretion of the courts in meting out sentences.

(45) In October 1977, the Malaysian Bar held an Extraordinary General Meeting (“EGM”) to discuss the ESCAR, and resolved to advise all Members of the Bar not to appear in trials under the ESCAR.

(46) The SOSMA is similar to the ESCAR, and the Malaysian Bar need to strongly oppose its usage, and call for its repeal.

Therefore, it is hereby resolved:

(A) That the Malaysian Bar call on the Malaysian Government to repeal all detention without trial laws, including the Prevention of Crime Act 1959 (“POCA”), Prevention of Terrorism Act 2015(“POTA”) and the Dangerous Drugs (Special Preventive Measures) Act 1985 be repealed;

(B) That the Malaysian Bar call on the Malaysian Government to immediately and unconditionally release all those currently detained and/or restricted under detention without trials including Siti Noor Aishah Atam;

(C) That the Malaysian Bar call on the Malaysian Government to repeal the Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”); 

(D) That the Malaysian Bar call on the Malaysian Government to enact laws that provide for compensation for all persons deprived of liberty by reason of detention and/or restrictions imposed under detention without trial laws and/or SOSMA;

(E) That the Bar Council do whatsoever deemed necessary to ensure that detention without trial laws and SOSMA are repealed, that all victims of these laws are immediately and unconditionally released, that the SOSMA is repealed; and
(F) That the Bar Council do whatsoever deemed necessary to ensure that laws are enacted to ensure just compensation is provided for all those deprived of liberty by actions of the State in the administration of criminal justice.


The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.

Bar Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent


Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent
Whereas:

(1) The case of Siti Noor Aishah Atam highlighted the very real possibility that innocent persons are wrongly made victims of draconian laws that allow for detention without trial.  Most victims are totally denied the right to a fair trial, but Siti Noor Aishah Atam, despite being acquitted by the courts, was still was subjected thereafter to detention without trial laws.

Detention Without Trial Laws

(2) Detention without trial continues to exist in Malaysia despite the fact that the draconian Internal Security Act 1960 (“ISA”) and the Emergency (Public Order and Crimes Prevention) Ordinance 1969 have been repealed.
(3) The Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”), which came into force on 31 July 2012 vide section 32(1), and repealed the ISA.  The Emergency (Public Order and Crimes Prevention) Ordinance 1969 was also repealed in 2013.

(4) The Dangerous Drugs (Special Preventive Measures) Act 1985, which provides for detentions and/or restrictions without trial, still remains.  Vide Resolution under subsection 1(4) [PU(B) 241/2015], this Act was extended for a further period of five years with effect from 15 June 2015.

(5) Other laws that provided for detention without trial today include the Prevention of Crime Act 1959 (“POCA”), following amendments in 2014, and the new Prevention of Terrorism Act 2015 (“POTA”).

(6) Vide Prevention of Crime (Amendment And Extension) Act 2014, a new Part IVA entitled “Detention Orders” was inserted, which now allows for detention without trial orders.  Section 19A, amongst others state, “. . . . (1) The Board may, after considering the report of the Inquiry Officer . . . . and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime . . .”.

No Judicial Review to Challenge the Reasons One is Victimised

(7) Like the now repealed draconian ISA, there shall be no judicial review with regards the reasons or justification of detention and/or restriction orders under these detention without trial laws, but only “in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.  Section 15A(1) POCA states that “ . . . . There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision”.

(8) POCA’s usage which was originally limited for triads or crime gangs have been significantly extended vide Prevention of Crime (Amendment of First and Second Schedule) Order 2014 [PU(A) 122/2014], which came into force in 2 May 2014.  Whilst previously limited for those persons who belong to any group, body, gang or association of 5 more persons who associate for purposes which include the commission of offences “involving violence or extortion” — it was extended to all offences under the Penal Code, and persons who also consort with these groups of two or more persons.  As such, now any person who allegedly commits any Penal Code offence with two or more persons can now be subjected to POCA, irrespective of whether it involved violence or not.

(9) POCA now can also be used against persons allegedly involved in the trafficking in dangerous drugs, in trafficking of persons and smuggling of migrants, and those who benefit from such actions.  It can be used against those who allegedly engage in the commission or support of terrorist acts under the Penal Code.  It can also be used for persons who recruit, or agree to recruit, another person to participate in the commission of an offence.

(10) POCA can also be used against “. . . . all persons who, being not less than twenty-one years of age, have since attaining the age of seventeen been convicted on at least three occasions of offences involving dishonesty or violence”.

(11) The breadth of the application of POCA is draconian, and it opens to the possibility of unchecked abuse by the police, public prosecutors and the Government.  It undermines the safeguards to prevent a miscarriage of justice.

Remand Devoid of Judicial Discretion

(12) With regard to post arrest remand for the purposes of investigation, Parliament amended the Criminal Procedure Code, restricting also the permissible length of remand orders by Magistrates (section 117 of the Criminal Procedure Code), where even “if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application”.  The Magistrate is empowered to exercise his/her judicial discretion, after considering the representations made either by the accused himself; or through a counsel of his choice; the representations of the police or the prosecutors; including also considering what the police had done since arrest as contained in the police diary.  Now, even if dissatisfied with the decision of the Magistrate, there is still the possibility of revision by the High Court Judge.

(13) Parliament amended the law concerning remand, possibly to prevent abuse of remand but all these safeguards are ignored if POCA, POTA and/or SOSMA is/are used.

(14) When POCA is used, all that is needed is a production of a statement in writing signed by a police officer not below the rank of Inspector, stating that there are grounds for believing that the name of that person should be entered on the Register, and the Magistrate has no choice but to remand the person in police custody for a period of 21 days. (Before the 2014 amendment, the required statement was of a police officer not below the rank of Assistant Superintendent — now just an Inspector will suffice.)  Judicial discretion of the Magistrate in the remand proceeding is ousted.  The right to be heard of the suspect and/or his lawyer is denied.

(15) For a further remand, all that is required is a statement in writing signed by the Public Prosecutor and a statement by a police officer not below the rank of Assistant Superintendent, the suspect will be remanded for a further period of 38 days.

(16) The same when POTA is used, judicial discretion of the Magistrate is ousted.  On the production of the statements by the police, and subsequently the police and public prosecutor, the Magistrate has no choice but give the remand order of 21 days, and thereafter 38 days.  The right to be heard is denied, and the judicial discretion of a Magistrate is ousted.

(17) When SOSMA is used, there is not even the need to bring the suspect before the Magistrate.  A police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than 28 days, for the purpose of investigation.

Right to Consult and/or Be Represented by Lawyer Curtailed and/or Denied to Persons Subject to Inquiry and/or Witnesses

(18) Under POCA, the right to be represented by a lawyer during the inquiry is limited, as stated in section 9(5): “Neither the person who is the subject of the inquiry nor a witness at an inquiry shall be represented by an advocate and solicitor at the inquiry except when his own evidence is being taken and recorded by the Inquiry Officer.”

(19) There is not even the right to be present and/or represented during the inquiry when evidence is taken from other witnesses and/or sources, let alone the right to cross-examine let alone challenge alleged evidence against the victim of these detention without trial laws.

(20) It must be noted, that the right to be represented by a lawyer is denied to any person/s in detention and/or confined in prison when the Inquiry Officer conducts his inquiry.  Section 9A(2) states: “(2) Nothing in this section shall authorise the attendance of the subject of the inquiry or his advocate and solicitor or representative, if any, at the place of detention or prison.”
(21) There is also no right of representation when the Inquiry Officer submits his report to the Board of Inquiry.  There is also no right to even make a submission for the consideration of the Inquiry Officer and/or Board of Inquiry before a final decision is made.  Section 9(6) states: “The Public Prosecutor may appear at an inquiry to assist the Inquiry Officer.”  But no such right to the victim or his lawyer.

(22) The process is grossly unjust, and an innocent victim like Siti Noor Aishah Atam can easily and/or unjustly be deprived of his/her liberty, rights and freedom. 

Danger of Abuse, Corruption and Miscarriage of Justice

(23) Corruption has always been suspected when it comes to the police and/or prosecutors.  This possibility of corruption is escalated when detention without trial laws and SOSMA are used, especially when judicial monitoring of administrative decisions is stifled and/or excluded.  The right to be heard and the right to a fair trial are denied.

(24) The Malaysian Anti-Corruption Commission (“MACC”) stated that about 54% of civil servants under the age of 40 are corrupt (New Straits Times and Malaysiakini, 8 Mar 2017), and this is most disturbing.

(25) When persons are not charged, tried and convicted, there is also the possibility that others involved in the crime will never be revealed, and will simply escape having to face justice.

(26) Detention without trial laws encourage a lackadaisical attitude and inefficiency in the police force and other enforcement and prosecution officers, as there is now no more the need to find sufficient evidence as required by law to prove in court that one is guilty of a crime.  The case of Siti Noor Aishah Atam is evidence of this, when even the books for which she was arrested for in the first place were not even books banned in Malaysia.  The courts in that case acquitted Siti at the close of the prosecution case, as the prosecution failed to prove a prima facie case.

(27) When innocent persons are placed under detention without trial, it is also possible that the true criminals will never be caught and brought to justice.  Police may just close the files, believing that they have managed to get the real perpetrator, when the persons in detention may be some innocent person.  The belief of the police and/or prosecution in the guilt of a person is immaterial, as what is important is for the court to decide on the guilt of an accused person, also noting the large number criminal trials that have ended with acquittals.

(28) Victims of crimes also deserve to see justice be done, and this can only happen if there is a fair trial, a conviction and a sentence.  In the absence of a conviction, victims and their families are also denied the possibility of subsequently commencing a legal action claiming for damages and/or compensation.

(29) With the unavailability of judicial review of the reasons or justifications of the actions and/or decisions of the police, public prosecutors and/or the Board of Inquiry, including the imposition of remand orders, detention orders and/or restrictions / conditions on the victims of POCA and such detention without trial laws, the likelihood of miscarriage of justice is extremely high.  Innocent persons will be wrongly deprived of their liberty, freedom and human rights.
Lost Right to Rely on the Double Jeopardy Principle

(30) Worse still, for these victims of detention without trial laws is that they can always at any time during their detentions and/or any time later, be charged, convicted in court and sentenced for, the very same offences for which they were subjected to detention and/or restrictions / conditions under POCA and such detention without trial laws. 

(31) Section 19G of POCA states: “The detention of any person under this Part shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention.” 

(32) The double jeopardy principle that prevents an accused person from being tried again on the same charge, following a valid acquittal or conviction, will not apply.

Siti Noor Atam Aishah — Proof of the Abuse of SOSMA and POCA?

(33) Siti Noor Aishah Atam — a 29-year-old Malaysian woman and a University of Malaya Masters of Usuluddin (Islamic Studies) student — was arrested on 22 Mar 2016, for the alleged possession of 12 books related to on Jemaah Islamiyah (“JI”), Islamic State (“IS”) and Al-Qaeda (“AQ”) at her residence.  She was charged under section 130JB(1)(a) of the Penal Code, tried, acquitted and was released by Judicial Commissioner Datuk Mohamad Shariff Abu Samah in the High Court [Di dalam Mahkamah Tinggi Jenayah 4 Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur Perbicaraan Jenayah No: 45SO-7-5/2016].

(34) The Public Prosecutor at the High Court applied that Siti continue to be detained under SOSMA pending the filing of the appeal, which the court denied.  A BERNAMA report carried by Sinar Harian stated: “. . . . Mahkamah turut menolak permohonan Timbalan Pendakwa Raya Mohamad Mustaffa P. Kunyalam untuk menahan Siti Noor Aishah di dalam penjara mengikut Seksyen 30(1) Akta Kesalahan Keselamatan (Langkah-langkah Khas) 2012 (SOSMA) sementara menunggu rayuan difailkan oleh pihak pendakwaan terhadap pembebasan tertuduh. . . .’ (BernamaSinar Harian, 29 Sept 2016).

(35) It was reported (Malaysiakini, 29 Nov 2016), that Siti Nor Aishah, after release was thereafter arrested and detained under POCA until Saturday (26 Nov 2016), and was then fitted with an electronic monitoring device (“EMD”), and asked to report every Friday at the police station in Bukit Aman for eight weeks.

(36) She would also most likely been subjected to Restriction Orders (or Police Supervision Orders) under POCA, which could include inhibitions with regard to movement, restrictions as to the people she can communicate with, and even restrictions with regard access to the internet and social media.

(37) The re-arrest and detention under POCA in the case of Siti Noor Aishah Atam may also be an act of contempt of court.

(38) Siti Noor Aishah Atam’s case provides a good example, to suggest that many (if not all) of the persons who are currently detained and/or restricted may be innocent. 

Compensation for Deprivation of Liberty, Freedoms and Rights

(39) A person arrested and detained by police or the authorities suffers more than the loss of liberty.  It also affects his/her employment and/or income generation activities.  It impacts not just on his/her good name, and also causes much suffering to the family and dependents, including children.

(40) All the more unjust is that these detention and/or restrictions are with regard to a person not being accorded even the right to heard and a fair trial — not even the right to a judicial review of the reasons for his loss of liberty.

(41) As such, those under detention without trial laws must be presumed to be innocent.  The Universal Declaration of Human Rights, in Article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

(42) There is a need for the provision of monetary compensation and damages caused by the unjust deprivation of liberty by the State.  It is most unjust for these innocent persons not to be compensated for their loss of liberty, freedom and rights.  There are provisions in other jurisdictions.

(43) The provision of such compensation payable by the Government would also deter police officers and others from unnecessarily detaining persons using POCA, POTA and/or SOSMA.

SOSMA — A New ESCAR

(44) The Malaysian Bar opposed the passing of the Essential (Security Cases) Regulations 1975 (“ESCAR”), which were promulgated to amend the procedural and evidential rules in relation to trials for offences against national interest.  The Regulations brought draconian changes in the basic rules of evidence and the judicial discretion of the courts in meting out sentences.

(45) In October 1977, the Malaysian Bar held an Extraordinary General Meeting (“EGM”) to discuss the ESCAR, and resolved to advise all Members of the Bar not to appear in trials under the ESCAR.

(46) The SOSMA is similar to the ESCAR, and the Malaysian Bar need to strongly oppose its usage, and call for its repeal.

Therefore, it is hereby resolved:

(A) That the Malaysian Bar call on the Malaysian Government to repeal all detention without trial laws, including the Prevention of Crime Act 1959 (“POCA”), Prevention of Terrorism Act 2015(“POTA”) and the Dangerous Drugs (Special Preventive Measures) Act 1985 be repealed;

(B) That the Malaysian Bar call on the Malaysian Government to immediately and unconditionally release all those currently detained and/or restricted under detention without trials including Siti Noor Aishah Atam;

(C) That the Malaysian Bar call on the Malaysian Government to repeal the Security Offences (Special Measures) Act 2012 [Act 747] (“SOSMA”); 

(D) That the Malaysian Bar call on the Malaysian Government to enact laws that provide for compensation for all persons deprived of liberty by reason of detention and/or restrictions imposed under detention without trial laws and/or SOSMA;

(E) That the Bar Council do whatsoever deemed necessary to ensure that detention without trial laws and SOSMA are repealed, that all victims of these laws are immediately and unconditionally released, that the SOSMA is repealed; and
(F) That the Bar Council do whatsoever deemed necessary to ensure that laws are enacted to ensure just compensation is provided for all those deprived of liberty by actions of the State in the administration of criminal justice.


The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.

Tuesday, March 21, 2017

‘Wrongfully’ sacked workers union president turns to Suhakam for help(FMT,17/3/2017)

On 17/3/2017, a Human Rights Defenders' delegation, representing 55 groups, comprised of Syed Shahir bin Syed Mohamud, Charles Hector, Rudy Rusly(General Secretary of the Club Employeees Union Peninsular Malaysia), Adrian Pereira, executive director of the North South Initiative(NSI) went to Malaysian Human Rights Commission(SUHAKAM) to bring to the attention the issue of Freedom of Association, Union Busting and the Victimization/Discriminization Against Worker Leaders - with particular reference to case involving Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) and 6 other Union Committee Members at INFINEON in Malacca.






The Union President is also wrongfully being prevented by the Company from entering the Union office, and/or carrying out his Union duties/responsibilities. He is also being prevented from being involved in the discussions and negotiations of the upcoming Collective Bargaining Agreement.

We met with Human Rights Commissioner, Lok Yim Pheng, and had a long meeting and discussion. It is our hope that SUHAKAM will conduct a thorough investigation, and maybe even have an inquiry and do the needful to ensure that human rights is respected and protected.


Our hope is that INFINEON, a company that claims to respect worker rights, will not delay matters and will immediately do the needful to respect worker and trade union rights, which are all human rights. As Human Rights Defenders, we shall struggle on until justice is done...

See related posts:- 

55 Groups - INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS - Reinstate Union President?

Malaysia: Workers claim discrimination against union leaders at Infineon's assembly factory; company responds (BHRRC)- We have send in our response to Infineon's response, and are currently still waiting for INFINEON's response to that.

 

 


 

‘Wrongfully’ sacked workers union president turns to Suhakam for help

March 17, 2017

Former senior employee claims company sacked him to stop him from fighting for workers’ rights.

suhakam-sacked 

KUALA LUMPUR: A former employee of an electronics company in Malacca, who is also president of the workers union, filed a complaint of wrongful termination with the Human Rights Commission of Malaysia (Suhakam) here.

Muhammad Zulfadly Thye Abdullah, who was a senior technician analyst at the company, claimed he was dismissed for “committing the act of malingering”, or feigning illness to avoid going to work.

He said despite his dismissal, he remained the president of the union. He claimed he was prevented from carrying out his duties as the union president after his dismissal.

Zulfadly said he had been employed at the company since 1998, and the president of the workers union since 2005

Human rights lawyer Charles Hector, who brought the case to the attention of  Suhakam, said the company’s charge against Zulfadly was “defective”.

“According to the company policy, malingering is not a form of misconduct that can lead to termination,” he said.

Zulfadly stated in his memorandum that he was sacked on Dec 13 last year. He said he had obtained a medical certificate (MC) from the company panel clinic on Oct 18 for back pain, followed by another MC for the next three days, after being diagnosed with kidney stones.

However, the company found out that he had attended a union event in Putrajaya when he was on medical leave on Oct 18.

Zulfadly was charged with skipping work and subjected to a domestic inquiry. He was dismissed on Dec 13.

“I replied to the company that my decision to go to the union event was a last-minute one.

“It was a short event and I took the bus instead of driving there because of my back pain,” he said.

After he was sacked, Zulfadly claimed he was barred from carrying out his duties as the union president.

“I could not enter the union office in the factory compound and I was not allowed to perform my duty of negotiating over the collective agreement for the workers’ working shifts.”

He claimed the company had sacked him to prevent him from fighting for the workers’ rights.

“The Industrial Relations Act guarantees the right of workers to participate in unions.

“Even though I have been terminated from my job, I am still the president of the union, elected by fellow members.”

Suhakam commissioner Lok Yim Pheng, who heard the complaint, expressed sympathy with Zulfadly’s plight.

“I share a union background and I will be with you in this fight for workers’ rights,” said Loke, who is the former secretary-general of the National Union of the Teaching Profession.

She promised to look into Zulfadly’s complaint and make the appropriate recommendations to the government.

“Suhakam will put an end to this.”

Syed Shahir Syed Mohamud, who is former president of Malaysia Trade Union Congress, was also present.- FMT News, 17/3/2017


Some of the additional points raised at SUHAKAM :-


FREEDOM OF ASSOCIATION, UNION BUSTING  AND VICTIMIZATION OF UNION LEADERS

Freedom of Association is guaranteed by the Malaysian Federal Constitution, and worker’s right to promote, form and join Trade Unions are provided for in Malaysian laws.

However, unlike societies and other associations, Trade Union’s in Malaysia have been subjugated by existing bad laws and practices in Malaysia. 

When Malaysia intended to a party in the Trans Pacific Partnership Agreement(TPPA), some countries were forbidden to enter into agreement with Malaysia by reason of the Malaysia’s current labour laws and policies. Malaysia had to agree to amend its laws to comply with international standards and practice, if was to be part of the TPPA. As such, an agreement was entered into between the United States of America and Malaysia to this effect - Malaysia – United States Labour Consistency Plan. Now that the TPPA may not be going forward, Malaysia may not be proceeding with the necessary labour amendments. SUHAKAM need to do what is required to get Malaysia to amend/repeal laws so that it is in compliance with international standards.

However, even that TPPA motivated agreement, does not really cover all the needed changes in law.

RIGHT OF MEMBERSHIP OF TRADE UNION – Membership lost when employment lost?

Section 26(1A) of the Trade Unions Act 1959 provides that membership to a Trade Union will simply be lost when one loses one’s employment. For an in-house union, it is even worse, this means that the employer can get rid of Union leaders simply by terminating him/her…This means a worker, a member of the Union, on losing his/her job will no longer be able to rely on the Union for help and injustice. So, when a Union member most definitely needs the solidarity and support of the Union, it is lost…

Section 26(1A) - Trade Unions Act 1959
(1A) No person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered.

Now, the courts have determined that when a dismissed worker claims for ‘wrongful dismissal’ and is seeking reinstatement, then he/she shall be able to continue to be a Union member and/or a Union leader. But despite, several such judgments, Malaysia has yet to amend the law.

The reality is that some workers who have been ‘wrongfully terminated’ or ‘retrenched’ really may not be interested in being reinstated, or there in fact may be no opportunity to effectively be reinstated. This will also be workers (union members) who have had rights violated by their employer – but the law says they cannot retain their union membership. Hence not only can’t they get help/assistance from their Union in times of need, but the Union itself is barred from helping and/or fighting for the rights of these ‘members’.

The choice of joining or leaving a Trade Union must exist only with the member. The Trade Union may also have the right to expel members for good reason, just like any other Societies or associations. As such,  the existence of a law that terminates a membership of a Trade Union member goes against the fundamental principles of Freedom of Association.

Further, it gives employers the ‘power’ to terminate workers, and leaving them out in the cold alone separated from their fellow union members and the Trade Union itself – it creates a situation where Union Busting and Worker Exploitation can so easily be done by Employers.

Available Ineffective Remedies facilitates Union Busting and Worker Exploitation

Workers wrongfully dismissed have no immediate or direct access to the Industrial Court. Even after attempts at Conciliation fails, the matter is referred to the Minister who decides, without giving the affected worker the right to be heard, which cases get referred to the Industrial Court, and which are not.

Even after it arrives at the Industrial Court, it takes too long. As an example, in the case of  Wan Noorulazhar bin Mohd. Hanafiah, Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR) wrongfully dismissed on 26/8/2011, but the Industrial Court has still not heard and disposed of this matter after almost 6 years.

UNION BUSTING - INFINEON TECHNOLOGIES MALAYSIA WORKERS UNION

Well about 40 members of the Union participated at a union event in Putrajaya, then INFINEON commenced disciplinary action on the Union President, and shortly thereafter on 6 other members of the Union Committee. 

The President was terminated, and the rest were given warnings.

Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca was charged of committing the misconduct of commiting an act of malingering. This is not even in the list of misconducts of the said company. Act of malingering is pretending to be sick to avoid work – but Zulfadlee was not pretending as he truly was not well. He was examined by a qualified doctor, and was issued a Medical Certificate. Still not well, the following day the Specialist issued MC for 3 more days, and the radiology report confirms that he a stone in the kidney/bladder. But, he was still wrongfully terminated.

The fact that he was the Union President, certainly was a consideration – and this is wrong in law – victimization by reason of Union involvement.

Infineon knows very well that the Industrial Court and/or court process will take years and years. Justice delayed is justice denied. It matters not, as they will be able to continue to benefit for years even if what they did was wrong or an injustice.

The effect of a ‘warning’ may affect promotions and wage increments – and this certainly will put fear in the Union Committee.

What makes it worse is that all this is happening when the new Collective Bargaining Agreement discussions and negotiations was starting in January 2017.

INFINEON previously tried to change the 3 shift system to a 2 shift system, and the Union and its members opposed this strongly. A vote amongst Union members was made which proved that an overwhelming  majority opposed this. The current Collective Bargaining Agreement is also stopping the company from changing to a 2-shift system.. The only solution may be to change it through the upcoming CBA.This is simply a possible reason - but we do not know why exactly.

Hence the removal of the President, and the other actions may simply be to remove resistance from the Union and its members, so that the Employer may be able to push forward what they want.

Union President – prevented from entering Union Office and carrying out his duties.

As Zulfadlee is claiming ‘wrongful dismissal’, he clearly remains the Union President. Infineon, however is not even allowing him to go to the Union office. They also do not want him to participate in the Collective Bargaining discussions and negotiations between Union and Infineon Melaka. This is certainly wrong.

Union Busting in Malaysia

Over the past years, there have been several Union leaders who have similarly been ‘wrongfully dismissed.

-Wan Noorulazhar bin Mohd Hanafiah, an employee of RENESAS who is the President of the UNION was dismissed on 26/8/2011 by RENESAS whereby the alleged misconduct, was that his actions were ‘contrary to explicit company policies’. He allegedly made statements about treatment of workers in a closed Facebook Group, whose members were fellow workers.

19/8/2013 - 18 members of the National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) in DRB HICOM subsidiary in Pekan were terminated for submitting a MTUC memorandum to one of the contesting candidates in the Pekan parliamentary constituency

- 29/11/2013 MAS wrongly terminated Ismail Nasaruddin, the President of NUFAM for a statement he issued in his capacity as President of NUFAM.

Other Union leaders who have ‘wrongfully terminated’ include Abdul Jamil Lalaludeen dan Chen Ka Fatt, Vice President and Treasurer respectively of the National Union of Bank Employees (NUBE); and Hata Wahari, President  National Union of Journalists(NUJ). This is not the complete list of Union leaders who have been wrongfully terminated.

WORKER RIGHTS ARE HUMAN RIGHTS, and SUHAKAM needs to immediately act on this – speaking out when rights are violated, and making also necessary recommendations for changes in laws so that Malaysia will be in compliance with international standards.