Federal Court has declared doctrine does not exist in constitution, says Govt

KUALA LUMPUR: The doctrine of separation of powers has no legal basis in Malaysia, the Human Rights Council (HRC) in Geneva has been told.

The Government said this in response to the report by the United Nation’s Working Group on Arbitrary Detention to the HRC Monday night.

As proof, it cited the controversial decision in re Kok Wah Kuan (the juvenile convicted of murdering his teacher’s daughter) where the Federal Court held that the Federal Constitution “does not have the features of separation of powers”; contained features which “do not strictly comply” with the doctrine; and it was just “political doctrine.”

It was responding to the view that Malaysia did not have a fully independent Judiciary because the amendment to Article 121(1) of the Constitution had wrested the judicial power of the courts, taking away its equal footing with the Executive and the Legislature.

The Suhakam-endorsed report is based on the visit of a fact-finding mission from June 7- June 17, which had included visits to detention facilities and private interviews of detainees.

The Government thanked the four-member group it had invited here, saying it had benefited from the constructive engagement.

Malaysia said the visit had brought to light “certain institutional and implementation gaps,” and it was committed to improving the promotion and protection of human rights.

However, on the recommendation that the Internal Security Act, Emergency (Public Order and Preven­tion of Crime) Ordinance, Dangerous Drugs (Special Preven­tive Measures) Act and Restricted Residence Act be repealed or amended to conform with the UN Declaration of Human Rights, the Government argued that they were enacted to shield public interest, peace and national security and had safeguards to ensure compliance with the rule of law.

It stressed that actions taken under them “were not considered punishment” as the detainee was not registered as an offender.

Their purpose is prevention and rehabilitation, it stressed.

It denied that the Home Minister had excessive powers, citing the safeguards on paper – maximum two-year term, habeas corpus, representation to Advisory Board and legal representation – as proof.

The Government took “strong exception” to the view that “the office of the Attorney-General eludes the normal penal procedure for common crimes and offences.”

On Tuesday, The Star had reported the group’s statement to the HRC, in which it reported finding others at centres reserved for detainees, those who should have been charged with common offences and dealt with under the regular penal procedure.

The Government’s citing of Section 8 of the ISA which allows the Minister to order detentions without trial for up to two years “if he is justified it is necessary” as a safeguard was intriguing, considering former prime minister Tun Dr Mahathir Mohamed’s revelation on Feb 17 that since the police advised him on national security, “if the police said arrest, I just signed-lah.”

It said it placed high importance to rights of detainees and listed 11 safeguards to protect those rights.

With regard to allegations of the unprofessional conduct of Rela members, the Government asked complainants to lodge a police report so there could be an investigation.

It added that Rela members had no opportunity to abuse detainees as they are now only tasked with the security and safety of the external premises of immigration detention centres.

As for the finding that almost all detainees under preventive laws interviewed had said police tortured them to obtain confessions or evidence, the Government replied it did not condone any act of torture or degrading treatment.

It added that between 2008 and 2010, nine police officers had been prosecuted for abuse of power and excessive use of force in interrogation.

On conditions at detention centres and prisons, the Government said there were sufficient laws in place to ensure humane conditions at immigration detention centres.

It said RM100mil had been allocated for improvements, and that it was studying the best practices of Australia and Holland.

Prison overcrowding was also addressed with improvement to rehabilitation programmes and reducing recidivism, it said, adding that it was working towards having foreign prisoners do parole or serve their sentences in their country of origin.

With regard to the high number of deaths in custody, the Government said the current measures were adequate to address such cases.

Taking “strong exception” to the view it did nothing to facilitate access to the UNHCR office here, Malaysia insisted it did so “consistently on the basis of humanitarian ground”, although it was not a party to treaties on refugees.