3.5 Treatment under detention
3.5.1 Access to the outside world
The importance of this cannot be overstated. As discussed earlier above, incommunicado detention has been viewed as a violation of the right to be treated humanely as well as the right not to be subjected to torture. Besides the very act of cutting the detainee off from the outside world, it effectively prevents the detainee from complaining against any ill-treatment and emboldens the authorities to do whatever they like without having to worry about the consequences.
(a) Detention under section 73 MISA /74 SISA
Rule 94 of the Malaysian Internal Security (Detained Persons) Rules 1960 provides that the Lockup Rules, 1953 shall apply to such detained persons. SUHAKAM observed that these Lockup Rules do not provide for “unhampered regular visits by independent, qualified and responsible persons to supervise the strict observance of the relevant laws and regulations by the relevant authorities in charge of the administration of such undisclosed places of detention” .
While the Lockup Rules specifically allows for visits to be made by inter alia, family members and friends , counsel and medical officers , there have been reported cases where those detained under section 73 have been denied access to their lawyer and not allowed to have their family members visit them.
In the case of Abdul Ghani Haroon v Ketua Polis Negara and another application , the police alleged that visits by family members are not allowed because that would “…impede police investigations that were in progress”.
The Court held that such reasoning was unacceptable. The learned Judge asked rhetorically, “What harm could a brief visit by immediate family members do to the police investigations?” The learned Judge went on to hold that “[t]he law, especially a law that affects fundamental rights, should not be enforced blindly. It must be interpreted and carried out as humanely as possible. …There is no provision under the MISA that confers upon the police such drastic powers”.
As for the denial of access to their lawyers, the Court held that unreasonably denying such access would result in the detention being made mala fide as such denial “…is not only cruel, inhuman and oppressive, it is also a blatant violation of the applicants' constitutional rights under art 5(3) of the Constitution…”.
The Federal Court also had the opportunity to decide on the issue of access to legal counsel during detention under section 73 in Mohamad Ezam’s case .
According to the facts of that case, such access was only given after the expiry of the detention. The court held that it was unreasonable and a clear violation of Article 5(3) of the Federal Constitution which guarantees the right of a detained person to be consulted and defended by a legal practitioner of his choice. The court held further that such conduct also lends support of the allegation of mala fide on the part of the police.
In case there was still any lingering doubt, the court held in no uncertain terms that “…the MISA is still subject to the rights entrenched in art 5(3)” .
In the Singaporean decision of Lee Mau Seng , it was held that the constitutional right under Article 5(3) which provides that a person arrested “…shall be allowed to consult and be defended by a legal practitioner of his choice” applies even in arrests made under the ISA. The Court held that the contention made by the AG that section 74 of the ISA was “…intended to deprive a person of a 'fundamental liberty' which the Constitution guarantees to him, namely the right to be allowed to consult a legal practitioner of his choice” was an “unacceptable proposition” .
Having said that, the Court went on to hold that “The principle that the courts will not order the release of a person in habeas corpus proceedings unless it can be shown that his detention is illegal or unlawful has been long accepted as fundamental and it would be wrong for [the Court] to depart from this principle”
As such, while the applicant’s constitutional right had been infringed, it was held that habeas corpus was “…not an available remedy” .
(b) Detention under section 8
The rules relating to those detained under section 8 of the MISA are found in the Malaysian Internal Security (Detained Persons) Rules 1960 . The rules allow for visitation from his “relatives and legal advisor” as well as access to a Medical Officer .
However, it is submitted that the limitations imposed are not reasonable. For example, no one is allowed to receive more than one visit a week. This not only means that the intervals during the visits will be long, but also that if the detainee needs to consult his lawyer, he would not be able to see his relatives in the same week. The visits are also limited to 30 minutes.
Shockingly, there is no privacy at all during these visits. Rule 81(5) that an officer must “…be in sight and hearing during the whole of any visit”.
3.5.2 Place of detention
(a) Detention under section 73
Section 73(7) of the MISA provides that those detained under section 73 “…may be detained in any prison, or in any police station, or in any other similar place authorized generally or specially by the Minister”.
It is submitted that the aforesaid provision is too wide and vague. It is worrying to think that anyone detained under section 73 may be kept in a prison along with other convicted prisoners.
When the SUHAKAM had their Open Inquiry on the MISA , police witnesses informed them that generally, detainees under section 73 are held in the lockup of a police station for the first 48 hours of detention. Thereafter, they are blindfolded and taken to an undisclosed location which is gazetted as Police Remand Centres. The cloak and dagger approach is allegedly because of the national security concerns.
However, this would also mean that it increases the opportunity of abuse of the detainees as he is vulnerable, confused and cut off from the outside world . SUHAKAM highlighted 2 cases of former detainees to illustrate the fear of being abuse as a result of held in an undisclosed location. These former detainees also described the claustrophobic conditions of solitary confinement they were kept in.
Further, SUHAKAM found the living conditions of detainees not up to standard. For example, the detainees are “deprived of clean bedding and adequate sunlight to enable the differentiation between day and night” .
(b) Detention under section 8
Section 8(3) provides that detainees detained under section 8 will be held in a place the Minister may direct. SUHAKAM observes that in practice, the detainees will be held at the Kamunting Detention Centre.
The HRDC noted that that those detained at the Kamunting Detention Centre, were “held in isolation in small, poorly ventilated cells”.
Local Human Rights non-governmental organisation SUARAM reported inter alia on the conditions inside the Kamunting Detention Camp. They highlighted the poor diet and health facilities in the camp, the censorship on the detainees’ letters, the denial of religious activities, and the limitation on reading materials.
3.5.3 Torture, inhumane and degrading treatment
(a) Detention under section 73
The Lockup Rules 1953 provides that police officers must not act in such a manner as may tend to annoy a prisoner . They are also not allowed to strike or apply physical force to a prisoner unless in self-defence or in defence of another person .
The Lockup Rules also provide that punishment for disciplinary offence is confinement in a “punishment cell” on restricted food diet (upon certification by a medical officer) for a period of not more than 3 days .
With such general provisions, it should come as no surprise that there is much complaint on ill-treatment and torture on detainees.
Amnesty International delegates had recorded an “…almost uniform pattern in the ill-treatment of ISA detainees” during detention under section 73.
In the same report, it was highlighted that during the former Deputy Prime Minister’s trial late in 1998, the Police Special Branch officers testified in court where they “…described techniques of 'turning over' and 'neutralising targets' who were suspected of threatening security, including techniques of instilling fear through threatening indefinite detention under the ISA and through non-stop interrogation underscored with implied threats of violence. The officer testified these methods of interrogation were outlined in the Special Branch Handbook, and that such techniques were normal practice among Special Branch officers in 'handling the country's enemies, for example the communist threat at one time'” .
The Human Rights Watch reports that former detainees have described the torture they had to endure, both physical and psychological. These includes”…allegations of physical assault, forced nudity, sleep deprivation, around-the-clock interrogation, death threats, threats of bodily harm to family members, including threats of rape and bodily harm to their children”. The Human Rights Watch also reported about solitary confinement in “tiny, dark cells”. Prolonged torture and deprivation have led to some to sign state-manufactured "confessions" under severe duress. During the first trial of former Deputy Prime Minister Anwar Ibrahim, police admitted to the courts that the process of 'extracting confessions' under duress was standard practice.
One such person who had to endure through such torture was Sukma Darmawan. In a handwritten letter – which was authenticated by his family members, a copy of which was forwarded to Amnesty International - he described how he was severely physically and psychologically tortured during his detention under the MISA .
During his trial in 1999, Sukma testified in Court and described how he was tortured. This included threats and blackmails by the police, stripped naked, having his genitals groped and nipples pinched, subjected to taunts etc. He testified that he eventually confessed as he “…was frightened and sad... [and he] could no longer take the continuous yells and threats... ”
SUARAM had reproduced portions of sworn Affidavits from several detainees complaining about the abuses they suffered during the detention period. Besides the physical abuse, the affidavits detailed the emotional and psychological torture they had to endure during interrogation.
(b) Detention under section 8
The Internal Security (Detained Persons) Rules 1960 provides that prison officials are not allowed to use personal violence on any detainees. The exceptions are where there is a repeated refusal to obey a lawful order, or in self-defence or in defence of someone else . Unfortunately, it appears that that is all that is in place to protect the detainees from being denied their rights not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
However, SUHAKAM noted that they were not aware of cases of serious violations of the said rights at the Kamunting Detention Centre. This was only noted in their report made in 2003 .
The Human Rights Watch published a paper in September 2005 detailing abuses on detainees at the Kamunting Detention Centre, specifically referring to an incident which took place on the 8th and 9th of December 2004 . The official stance taken on that incident was that weapons were found in the detention cells of the detainees during a surprise check and that force was necessary to overcome violent and threatening detainees. The detainees’ side of the story is that the alleged weapons are in fact knives, scissors, badminton racquets and other objects which have been previously approved by the authorities.
Be that as it may, it is submitted that the treatment inflicted on the detainees is by no means reasonable even if the accusations against them were true.
In their paper, the abuses inflicted on the detainees were described by the detainees themselves, some of whom were eyewitnesses, others who were victims . The abuses include being handcuffed behind their backs and beaten severely, kicked repeatedly and stripped naked, being hit on the head, being “treated like animals”, being spat upon, being forced to do humiliating acts like made to crawl back into their cells. Some suffered broken bones and fractures.
They were subsequently denied medical attention. The detainees in a signed letter wrote that it was only on the third day after the incident that they were brought to the hospital. This included those who suffered fractures and bleeding to the head. Some were only taken to the hospital after more than a week.
When the detainees’ lawyers tried to visit them on the 10th December, they were not allowed to. The lawyers were finally allowed to see their clients on the 28th – close to 3 weeks after the incident.
Subsequently, 20 detainees were punished for the incident which took place on the 8-9 December, 2004. Some were kept in solitary confinement in a cell without light where they had to sleep on the cement floor. As of the date of the report, some of the detainees were still being thus punished. This is clearly a violation of the Internal Security Act (Detained Persons) Rules 1960 which only allow a maximum of 7 days of punishment after a factual inquiry . Further, no such inquiry was ever held.
Visitations have also subsequently been restricted after the incident in that physical contact has been disallowed and wives of the detainees have to speak to their husbands through a small hole situated 3 – 4 feet above ground level in the fibreglass and wire mesh partition which separates them.
As for the situation in Singapore, due to the low number of detainees as compared to Malaysia as well as the absence of a Human Rights Commission, the reports are not as extensive. However, the reports reveal the same but shocking tale of torture and inhumane treatment.
In May and June 1987 where over 20 people were detained under section 74 of the SISA, they were taken blindfolded to the Whitley Road Detention Centre . It is reported that most of the abuse of the detainees take place during the first 3 days at this place, causing disorientation and fear. Interrogation took place in a “…dark, overcooled, soundproof rooms with… bright spotlights” . The detainees were abused physically and psychologically by “…sleep deprivation, blows to the body and threats of being detained indefinitely” .
Testimonies of those who had been previously detained under the SISA reveal the same kind of treatment which includes but is not limited to solitary confinement with lights on 24 hours a day, threats of indefinite detention, harassing family members, depriving reading materials for months, long hours of interrogation in a cold room where some detainees have suffered involuntary spasms due to the freezing temperature, mental and physical abuses which includes breaking of bones, electrocution, drenched with urine .
The government denied all these abuses and alleged that no detainee had complained of ill-treatment. However, Asia Watch had information that at least 2 detainees – Tang Fong Har (detained on 20th June, 1987) and Teo Soh Lung (detained on 21st May 1987) – had presented evidence of their abuses before the Advisory Board
3.5.4 Summary and conclusion
In respect of access to the outside world, despite having the legal and constitutional provisions in place, detainees are still prevented from having access to the outside world during detention. As seen in the cases discussed above, the police in Malaysia can blatantly ignore these provisions while in Singapore, the infringement of the constitutional right does not make the detention unlawful.
This clearly falls short of the standards set out in the ICCPR as discussed above.
It is submitted that there are no reasonable grounds as to why detainees should be deprived from their right to consult their solicitor nor should they be deprived from seeing their family members.
On the other hand, there are so many reasons as to why they be allowed legal representation. For instance, not everyone knows their rights. Their lawyer would be able to advice them on that. Further, the access to legal representation will go a long in ensuring that the detainee’s rights to inhumane treatment and freedom from torture etc be respected. Early access to legal representation may also result in speedier proceedings in the court.
In respect of detention under section 8, it is also submitted that the non-respect of privacy is unreasonable. Even convicted prisoners are not treated like that! What more for a detainee who has not been found guilty of any crimes? Further, this goes against the rules of confidentiality between solicitor and client.
As for the places of detention, it is clear that the situation falls below the standards set in the ICCPR.
Finally, it is without doubt that the provisions in place are wholly inadequate to protect the detainees from violations to the right to be treated humanely as well as the right to be free from torture, inhuman or degrading treatment or punishment as provided for in the ICCPR. Even the existing provisions are no guarantees that the rights protected are not violated. In reality, the detainees have paid and are probably still paying for these inadequacies.
It is submitted that the situation is unacceptable and the status quo cannot remain.
There are no provisions in the MISA and SISA regarding compensation for wrongful detention .
There are no authorities where compensation was ordered to be paid when a detention was found to be unlawful. In fact, in all the Malaysian cases referred to in this essay, none of the application for judicial review and/or habeas corpus included a prayer for compensation for wrongful detention. It would appear that even the lawyers do not bother asking for it. Perhaps, with the poor “success rate” of judicial review , if a detainee’s application is allowed, they would gladly accept it without any compensation.
Presently, the High Court in Malaysia is hearing a suit filed by Mohamad Ezam and 7 others against a former Inspector-General of Police, the Home Ministry and the Government seeking for inter alia damages for the unlawful detention under section 73 if the MISA against them . The case was fixed for continued hearing on the 7th September 2006 and as such, the decision will unfortunately not be reached before this essay is due.
While monetary compensation can never be sufficient, it is submitted that there is no reason why there is no such right guaranteed. Some of those who have been detained lose their jobs while in detention. Family members suffer as some of those detained are the sole breadwinner of the family. Costs are incurred when these detainees engage solicitors. Costs are incurred also when family members have to travel some distance to visit the detainees.
Those lives of those who have been detained will never be the same again. At the very least, if it has been proven that their detention is unlawful, it is submitted that the state should pay compensation to them.