Action Alert: Malaysia – Deportation of five ISA detainees whose habeas corpus applications have been refused

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IHRC urges campaigners to write to Chairperson-Rapporteur of UN Working Group on Arbitrary Detention requesting them to take action against the arbitrary detention of the twelve detainees.

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Islamic Human Rights Commission
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17 March 2010

Action Alert: Malaysia – Deportation of five ISA detainees whose habeas corpus applications have been refused


Contents
1. Summary
2. Background
3. Action required
4. Sample letter


1. Summary

On 21 January 2010 twelve people were detained under the controversial Internal Security Act (ISA). The detainees were under incommunicado detention, thus, were denied their right to seek legal advice nor challenge the “evidence” on which their detention is based.  One of the detainees is a Malaysian citizen and the rest are foreigners. Five of the detainees have been deported to their country of origin and six other foreign detainees are due to be deported soon.

One of the deported detainees Khaleed Salem who is of Yemeni origin was taken to police custody immediately upon his arrival to the country. IHRC urges campaigners to write to Chairperson-Rapporteur of UN Working Group on Arbitrary Detention requesting them to take action against the arbitrary detention of the twelve detainees.


2. Background

ISA was enacted by the Malaysian Parliament in 1960 soon after the independence of the country from Britain in 1957. The ISA empowers the police to detain a person for 60 days without trial on the grounds of national security. After the end of the 60 day period, the Minister of Home Affairs can further extend the detention for a period of two years. It can then be renewed for every two years. Hence, under the ISA, a detainee may be held indefinitely incommunicado detention.

The aim of the ISA was initially to obviate the so called ‘Communist threat’. Until the collapse of the Soviet Union, the ISA was fiercely used to subjugate the leftist opposition. However, in the last two decades the ISA has notoriously been used to repress any critical voice against  government policies viz. human rights activists, journalists, minority groups and academics.

On 15 March 2010, Malaysian human rights groups, Suara Rakyat Malaysia (SUARAM) and Gerakan Mansuhkan ISA (GMI), have informed the international community of the deportation of the five detainees who had previously been held under ISA. The Malaysian authorities accused the detainees of involvement in international terrorism yet refused to hear their habeas corpus applications.

The government official employed a legal legerdemain to ease pressure that is mounted on the ISA. They informed the public that, the detainees were first “released” from the ISA and then were handed over to the Immigration Department because their visa had expired. Thus, they did not permit them to challenge their incommunicado detention.  

The details and the status of the 12 detainees are stated below:

1. Azzahari bin Murad (Malaysian). He has been detained under the Section 8(5) of the ISA, which imposes strict control orders on detainees. He is now restricted to areas in Petaling Jaya.
2. Aiman Al Dakkak- USM PHD Student (Syrian) Facing deportation
3. Mohamed Hozifa (Syrian) Facing deportation
4. Hassan Barudi-Student (Syrian) Facing Deportation
5. Kutiba Al-Issa- Student (Syrian) Facing deportation
6. Khalid Salem- Student (Yemeni) Deported on 6 March 2010
7. Luqman Abdul Salam-Student (Nigerian) Deported on 13 March 2010
8. Hussam Khalid- Student (Jordanian) Deported on 15th March 2010
9. Abdul Alhi Bolajoko Uthman-Student (Nigerian) Deported on 14th March 2010
10. Unknown
11. Unknown
12. Unknown

Arbitrary detention has strictly been prohibited under UN Human Rights treaties and relevant mechanisms. In this regard article 55 of the Rome Statute defined arbitrary detention as a major crime. Further, the article 9 of the Universal Declaration of Human Rights declares that "no one shall be subjected to arbitrary arrest, detention or exile" and the article 10 declares that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

The detainees have been held under incommunicado detention and prevented from qualified legal advice. They have not also been permitted to challenge “evidences” that are held against them which amounts to arbitrary detention.  Considering that at present, Universal Declaration of Human Rights has been incorporated in the domain of customary international law, the Malaysian government, by implementing its policy of incommunicado detention, is in breach of both the Rome Statute of the International Criminal Court and the customary international law.


3. Action required

Write to Chairperson-Rapporteur of UN Working Group on Arbitrary Detention requesting them to urge the Malaysian government to:


1.    Allow family members to meet the detainees.
2.    Allow lawyers to meet the detainees.
3.    Confirm the names and the safety conditions of the detainees.
4.    Either try the detainees before an impartial and independent court or release them immediately.

 

4. Sample letter
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A sample letter is given below for your convenience. Please note that model letters can be sent directly or adjusted as necessary to include further details. If you receive a reply to the letter you send, we request you to send a copy of the letter you sent and the reply you received to IHRC. This is very important as it helps IHRC to monitor the situation with regards to our campaigns and to improve upon the current model letters. It is preferable that letters be sent via post, or otherwise by fax and/or email.


Sample letter to the UN Working Group on Arbitrary Detention. You may write to Chairperson-Rapporteur of Working Group on Arbitrary Detention Malick El Hadji Sow via the email address wgad@ohchr.org, and you may CC that to and InfoDesk@ohchr.org.


[Your name]
[Your address]

[Date]

Malick El Hadji Sow, Chairperson-Rapporteur
Working Group on Arbitrary Detention
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
8-14, avenue de la Paix
1211 Geneva 10, Switzerland

Your Excellency, Malick El Hadji Sow

Re: Deportation of ISA detainees whose habeas corpus application has been refused

I am writing to express my extreme concern regarding the recent violation of human rights of the 12 detainees who were held under the controversial Internal Security Act (ISA) in Malaysia. As you may be aware ISA legislation was enacted by the Malaysian Parliament in 1960 soon after the independence of the country from Britain in 1957. The ISA empowers the police to detain a person for 60 days without trial on the grounds of national security. After the end of the 60 day period, the Minister of Home Affairs can further extend the detention for a period of two years. It can then be renewed for every two years. Hence, under the ISA, a detainee may be held indefinitely incommunicado detention.

The aim of the ISA was initially to obviate the so called ‘Communist threat’. Until the collapse of the Soviet Union, the ISA was fiercely used to subjugate the leftist opposition. However, in the last two decades the ISA has notoriously been used to repress any critical voice against government policies viz. human rights activists, journalists, minority groups and academics.

On 15 March 2010, Malaysian human rights groups, Suara Rakyat Malaysia (SUARAM) and Gerakan Mansuhkan ISA (GMI), have informed the international community of the deportation of the five detainees who had previously been held under ISA. The Malaysian authorities accused the detainees of involvement in international terrorism yet refused to hear their habeas corpus applications.

The government official employed a legal legerdemain to ease pressure that is mounted on the ISA. They informed the public that, the detainees were first “released” from the ISA and then were handed over to the Immigration Department because their visa had expired. Thus, they did not permit them to challenge their incommunicado detention.  

The details and the status of the 12 detainees are stated below:

1. Azzahari bin Murad (Malaysian). He has been detained under the Section 8(5) of the ISA, which imposes strict control orders on detainees. He is now restricted to areas in Petaling Jaya.
2. Aiman Al Dakkak- USM PHD Student (Syrian) Facing deportation
3. Mohamed Hozifa (Syrian) Facing deportation
4. Hassan Barudi-Student (Syrian) Facing Deportation
5. Kutiba Al-Issa- Student (Syrian) Facing deportation
6. Khalid Salem- Student (Yemeni) Deported on 6 March 2010
7. Luqman Abdul Salam-Student (Nigerian) Deported on 13 March 2010
8. Hussam Khalid- Student (Jordanian) Deported on 15th March 2010
9. Abdul Alhi Bolajoko Uthman-Student (Nigerian) Deported on 14th March 2010
10. Unknown
11. Unknown
12. Unknown

Arbitrary detention has strictly been prohibited under UN Human Rights treaties and relevant mechanisms. In this regard article 55 of the Rome Statute defined arbitrary detention as a major crime. Further, the article 9 of the Universal Declaration of Human Rights declares that "no one shall be subjected to arbitrary arrest, detention or exile" and the article 10 declares that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

The detainees have been held under incommunicado detention and prevented from qualified legal advice. They have not also been permitted to challenge “evidences” that are held against them which amounts to arbitrary detention.  Considering that at present, Universal Declaration of Human Rights has been incorporated in the domain of customary international law, the Malaysian government, by implementing its policy of incommunicado detention, is in breach of both the Rome Statute of the International Criminal Court and the customary international law.

I look forward to hearing back from regarding these urgent matters.

Yours sincerely,


[Your signature]
[Your name]

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