From detention without trial to detention with sham trial - that's the ISA replacement bill!

Lawyers For Liberty condemns the tabling of the Securities Offences (Special Measures) Bill on 10 April 2012 in the Dewan Rakyat as the bill clearly appears to be an affront to the fundamental liberties guaranteed under Part II of the Federal Constitution.

While we note that the Bill has repealed the archaic Internal Security Act 1960 (ISA) which allowed detention without trial, the replacing bill poses serious threats to a person’s liberties based on the following:-

i). The definition of “security offences” under the bill is too broad, unclear and it includes a so-called “activity detrimental to Parliamentary democracy”;

ii). The bill gives extraordinary power to the police to arrest and detain a person for a period of 28 days within which it is not subject to any judicial oversight for the accused to challenge the legality of the arrest and detention;

iii). Section 30 allows continued detention of a person even after his acquittal pending the disposal of all appeals which can extend to a few years;

iv). The definition of “sensitive information” in relation to Section 8 is too broad and it includes any document which also includes classified documents that concern sovereignty, national security, defence, public order and international relations;

v). Section 13 denies the right to bail from the beginning of the trial;

vi). Section 14 restricts the right to cross examine by the accused and his counsel as the prosecution can apply to protect the identity of witnesses whose evidence can be given in camera without the presence of both the accused and his counsel.

vii). Section 17 to Section 19 have effectively turned inadmissible evidence under the Evidence Act 1950 into admissible evidence, this includes the admissibility of statements by dead persons or persons who cannot be found or by persons who have become incapable of giving evidence and children of tender years;

viii). Section 23 also allows non-production of original or actual exhibits;

ix). Section 26 allows evidence of accomplices and agent provocateurs to be admissible without the need to challenge their credibility as witnesses, which clearly increases the risk of entrapment or where a person can easily be framed.

Full of oppressive clauses

Based on the above, we find the bill is plagued with oppressive provisions which infringe the basic rules of evidence, impeding a person’s right to a fair trial which is guaranteed under the Federal Constitution. This departure from the basic rules of evidence will inevitably render the trial a sham thus making the right to a fair trial illusory.

Similar to the ISA, the bill is created under the oppressive Article 149 of the Federal Constitution which mandates the making of any law notwithstanding its inconsistency with certain articles of the Federal Constitution which guarantee fundamental liberties.

Lawyers For Liberty hereby demands the government to immediately withdraw the repressive bill and repeal Article 149 of the Federal Constitution under which the bill is created and pay heed to the people’s resolve to challenge any regressive move by the government that infringes the fundamental liberties guaranteed under the Federal Constitution.

Lawyers For Liberty