Re: Six activists being detained under Malaysian Emergency Ordinance
To: Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razuk; Minister of Home Affairs, Datuk Seri Hishammudin Hussein; Inspector General of Police, Tan Sri Ismail Omar
From: Vicheka Lay, Member, LRWC
Lawyers’ Rights Watch Canada (LRWC) is deeply concerned to learn that six advocates for electoral reform have been detained without charge in an undisclosed location with limited access to legal counsel by the Malaysian government under its Emergency Ordinance (Public Order and Prevention of Crime) 1969 (Emergency Ordinance). LRWC fears that the secrecy surrounding their detention places them at risk of torture and other physical and psychological maltreatment.
The six detainees, including Dr. Jeyakumar Devaraj who is a member of parliament, hold positions in the Malaysian Socialist Party (PSM). They were arrested in Penang on June 25, 2011, while traveling to an event for the Coalition for Clean and Fair Elections, which government authorities banned as an illegal organization on July 2, 2011. Twenty four other people were arrested alongside them.
LRWC believes that the government is using the Emergency Ordinance to arbitrarily arrest and imprison these people in order to stifle their attempts to peacefully advocate for reform, thereby denying their internationally recognized rights to liberty, freedom of expression and freedom to criticize government. The arrest and detention of these people signals a worsening of the already-grim human rights situation in Malaysia.
According to Human Rights Watch’s (HRW) 2006 Annual Report, the Malaysian government has a history of deploying the Emergency Ordinance, proclaimed as a temporary emergency measure 16 May 1969, to arbitrarily arrest and imprison people:
“The Malaysian government has locked away more than 700 individuals at the Simpang Renggam Behavioural Rehabilitation Centre…in Johor. Some have already been detained for more than eight years. None know when they will be released. They are incarcerated not because they were found guilty of a crime and sentenced by a court of law. Instead, they are detained by executive fiat in violation of international and Malaysian law.”
LRWC endorses Amnesty International’s statement that, “the Emergency Ordinance violates human rights, as set out in the Universal Declaration of Human Rights. These include the right to liberty, the right to a fair and public trial and the right to be presumed innocent.”
LRWC is also alarmed by the refusal to provide the detainees with access to legal counsel, as required by customary international law, in a timely manner. The United Nation’s Basic Principles on the Role of Lawyers requires states to ensure that access to legal counsel by detained persons is prompt, confidential and free from interference. Article 8, states as follows:
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials. (emphasis added)
The importance of timely access has been confirmed by many tribunals including the European Court of Human Rights (ECtHR) In the case of Magge v UK, the ECtHR determined that denial of access to a lawyer for a period of 48 hours constituted a violation of Article 6 (fair trail rights) of the European Convention on Human Rights:
In the Court’s opinion, to deny access to a lawyer for such a long period [48 hours] and in a situation where the rights of the defence were irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6 [fair trial rights].
The six detainees were denied access to counsel for a period of almost two weeks, and were then granted only fifteen minutes with their respective legal representatives. It is reasonable to conclude that, when charges are laid, the detainees’ right to defend the charges will have been irretrievably prejudiced because of the failure to allow them timely access to counsel.
LRWC call on the Government of Malaysia to:
- Immediately release the six detainees under conditions that accord with the internationally protected rights of the detainees to liberty, the presumption of innocence, freedom from arbitrary detention and fair trial rights; and,
- Guarantee that the six detainees will not be tortured or otherwise ill-treated; and,
- Disclose the locations of the detainees during their imprisonment; and,
- Ensure the six detainees have confidential access to lawyers of their choice, their families, and an independent court, as well as any medical attention they may require.
LRWC urges you to ensure respect for internationally protected rights in Malaysia, including rights to liberty, freedom of expression, freedom to criticize government, rights to counsel, freedom from torture and other cruel, inhuman or degrading treatment or punishment and fair trial rights, including timely access to a competent tribunal to contest the legality of detention.. These rights are universally accepted as fundamental and universally applicable. LRWC notes that Malaysia is a member of the United Nations and the Commonwealth and that both the UN and the Commonwealth have confirmed the duty of states to safeguard these rights.
LRWC will continue to monitoring this situation, and looks forward to your response. Thank you for your attention to our concerns.