Malaysiakini: Test Case In The Works To Free Trio Held Under EO

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Written by Hafiz Yatim for Malaysiakini

Decades after the racial riots on May 13, 1969 that sparked an emergency declaration, authorities today are detaining many youths for alleged involvement in crimes, holding them without trial and treating them at their whims while the emergency status has yet to be lifted.

The Emergency Ordinance (Public Order and Prevention of Crime) 1969, a form of detention without trial as provided for under the draconian Internal Security Act, had been used to detain youths for alleged involvement in gang fights. The use of the declaration has apparently now expanded to include alleged motorcycle theft, an offence that is also punishable under the Penal Code.

While some youths who admitted to stealing motorcycles are brought to court and charged, there are others who refuse to confess and face the threat of being placed under the EO.

Such is the fate of three youths, including Muhamad Arif Abu Samah, 20, whose case was reported in Malaysiakini last month and who was placed under EO in Mersing this month.

Two brothers – Mohamed Ramadan Mohamed Ali, 22, and Mohamad Rafe, 20, whose cases were also reported in Malaysiakini, – also faced a similar fate when they were placed under EO in Chemor, Pahang and Kulim, Kedah respectively. All three are suspects involved in alleged motorcycle thefts in the district of Gombak.

Their EO orders were signed by Deputy Home Minister Abu Seman Yusop on May 16.

However, what is interesting to note about their alleged offence is that the complainants or victims of the motorcycle thefts were not named but the types of vehicles and the licence plates were mentioned.

Solicitors for the three from Kanesalingam and Co had written two letters both addressed to Prime Minister Najib Abdul Razak dated May 13 and May 26 this year, respectively, to lift the declared emergency proclamation and free their clients.

In the letters, the solicitors claimed their clients were detained for more than 60 days without trial; forced to sign blank documents; kicked and severely assaulted with metal pipes, wires and aluminium rods; and prevented from meeting their lawyers. The families of Rafe and Ramadan were duped out of RM13,000 by someone claiming to be an inspector to secure their release.

Lawyer K Shanmuga, who wrote the May 13 letter, urged Najib and the cabinet to advise the Yang di-Pertuan Agong to revoke the proclamation and also the EO within five days of receiving the letter, failing which it would be deemed a refusal to its application.

Judicial review application

The second letter dated May 26 gives Najib 10 days (until June 5) from the date of the letter to revoke the emergency proclamation or else a test case judicial review application will be sought.

Based on the letter by Shanmuga, the judicial review also includes a mandamus order (to compel) the prime minister and cabinet to revoke the said proclamation and repeal the use of EO.

All three family members also filed separate habeas corpus applications to secure a High Court order to have them released. However, following this latest development, the solicitors had to rethink their strategy.

Without access to their lawyers, these youths have no way of defending themselves.

Besides the May 13 emergency, there were other periods of emergency including the Konfrontasi period in 1964, which has been revoked, and the emergency declared in Sarawak and Kelantan following the change in state governments.

Arif’s father Abu Samah Ab Rahim, 49, and his wife Maznah Yusof, 41, had related that police came barging into their home on the early morning of March 8 to tell them their son was being arrested under suspicion of being a motorcycle thief.

“However, all of us do not believe this as he does not have any criminal record and had just worked one month as a despatch clerk and was saving his money to further his studies,” he said.

Maznah said if her son had been a thief, he would have led an extravagant life, but they (the parents) bought his clothes and all his necessities and he even asked them for money.

For the brothers Rafe and Ramadan, their parents were cheated into paying RM13,000 to secure their release when someone claiming to be Inspector Zulkifly was alleged to have demanded the money.

Lawyers For Liberty spokesperson Fadiah Nadwa Fikri claims the episode shows that the EO is being used to blackmail money from poor families.

“From this, we can surmise that they are police officers. They are using the EO as a means to blackmail money from families,” she claimed, adding that Abu Samah also claimed he was approached to pay RM15,000 to secure Arif’s release but he declined.

Longest running emergency to date

Malaysian Centre for Constitutionalism and Human Rights representative Edmund Bon, when contacted, said he knew of the cases and proposed the intervention by way of judicial review.

“All of them are detained and restricted without trial and they have no way of defending themselves. Most of those detained are poor, uneducated and marginalised, and because the emergency order has not been lifted it is used against them to restrict their fundamental liberties,”  he said.

Bon, who is also a lawyer and former Bar Council constitutional committee chairperson, said the government has not released official figures of those being detained, despite attempts by various parties to ask for it.

“By our count there are 1,500 people detained annually in Simpang Renggam. So on average, since 1969 and 42 years after that, thousands have had the EO implemented on them. The trend now is to detain youths for various allegations which cannot be substantiated like in the two cases,” he said.

“This is why we have sent letters to the PM asking to repeal the EO as this is a law similar to the ISA. If this is not done, we will use the three’s plight as a test case to secure their release,” he said.

This article was originally posted by malaysiakini.com on 30 May 2011. Click to view original here.



Malaysian Centre for Constitutionalism and Human Rights (MCCHR) is a non-profit based in Kuala Lumpur with the mission of promoting active democratic participation and human rights awareness.

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