Malaysia's Internal Security Act (ISA), which gives the government unchecked powers to detain individuals for long periods without charge, is a recipe for abuse, Human Rights Watch said today.
In a new report released today, Human Rights Watch called for the repeal of the 45-year-old ISA, which allows for detention without trial and bars judicial review of detentions. The report, Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia, is based on interviews with family members of current ISA detainees, their lawyers and handwritten statements of ISA detainees.
It documents the physical abuse, ill-treatment and humiliation of more than 25 detainees in Kamunting Detention Center in December 2004. None of these detainees have been charged or tried.
"Those held under the ISA are defined as a group that has virtually no rights, so it is hardly surprising that prison guards treat them as less than human," said Brad Adams, executive director of Human Rights Watch's Asia Division.
According to eyewitness accounts, ISA detainees were beaten, abused and humiliated in a December 2004 incident when prison guards, armed with batons, shields and riot gear, mistreated handcuffed detainees. Mohamad Faiq bin Hafidh, who has been detained since January 2002, described the events of December 8 and 9, 2004, in Kamunting Detention Center. He wrote:
I was handcuffed . . . and my head was pushed down to waist level. My head was struck with a baton and my eye was hit, injuring it. When I reached room seven of [the cell block], I was continuously beaten and then forced to strip naked, ordered to crawl while entering the room and then my buttocks were kicked and that was how I stumbled inside, naked.
No prison officials have been disciplined and the government has not made public the findings of its investigation into the incident. Human Rights Watch's requests to visit Kamunting Detention Center and to interview the director of Kamunting or a government official knowledgeable about the events were denied. Most of the 112 people currently detained in Malaysia under the ISA are held under allegations of associating with militant Islamist groups, though the government has expanded its use of the ISA to include individuals accused of counterfeiting and forging documents and has threatened to use it against practitioners of religious beliefs deemed "deviant" by the government. Some detainees have been in custody for more than four years.
Human Rights Watch said that ISA detainees have no effective recourse to challenge their detention because the law prevents the courts from reviewing the merits of ISA detentions. Although the law allows judicial review of the procedural requirements for detention, Malaysian courts routinely dismiss habeas corpus petitions challenging ISA detentions.
The Malaysian government admits that it chooses not to prosecute ISA detainees. In July 2005, a cabinet minister, Datuk Mohamed Nazri, told Human Rights Watch, "They [ISA detainees] have not committed any crime because ISA is preventive. You cannot, therefore, go to court. The government has information that something will happen. We can't wait till it happens. Lives and property will be lost. So before it happens we detain them."
Human Rights Watch said that it recognizes the obligations of the Malaysian government to protect its population from terrorist attacks and to bring those responsible for engaging in such attacks to justice. But the Malaysian government has not yet demonstrated that any of the individuals it has detained have actually engaged in any illegal activity, or cannot be prosecuted under existing laws.
"Malaysia's policy amounts to the executive branch presuming the guilt of people without charge or trial," said Adams. "The presumption of innocence does not exist for ISA detainees."
Since 1960, the law has been misused by the ruling United Malay National Organization (UMNO) to silence critics, resulting in the detention of more than 10,000 people.
Human Rights Watch said that the ISA's provisions violate fundamental international human rights standards, including prohibitions on arbitrary detention, guarantees of the right to due process and the right to a prompt and impartial trial. Malaysia should end its use of ISA detention and rely on its robust criminal law and capable judiciary to tackle security and other alleged crimes.
"Malaysia aspires to be a leader in the region and a developed country by 2020," said Adams. "The ISA is not a sign of leadership or development––it is a sign of repression."
Human Rights Watch said that long-term critics of the ISA, notably the United States, have been silent since the September 11, 2001, attacks in New York and Washington, D.C. A senior State Department official, when questioned about the ISA, told Human Rights Watch in December 2003, "With what we're doing in Guantánamo, we're on thin ice to push on this." A Malaysian cabinet minister, Datuk Mohamed Nazri, confirmed this, telling Human Rights Watch that the U.S. no longer criticizes Malaysia's use of the ISA because of U.S. detention practices at Guantánamo Bay.
Human Rights Watch called for the repeal of the ISA, to immediately charge or release individuals detained under the ISA and to set up an independent commission of inquiry into the allegations of abuse in December 2004.
In May 2004, Human Rights Watch issued a report, In the Name of Security: Counterterrorism and Human Rights Abuses Under Malaysia's Internal Security Act, detailing abuses against ISA detainees during the first 60 days of detention.