God said “let there be light.” And it was so. Likewise, the Home Minister in Malaysia may say “Let him be detained forever.” And it will be so. The EO makes men into gods. The EO makes members of the ruling elite into gods.

So what is the EO? It’s the Emergency Ordinance. What does that mean? It’s a law enacted on 16 May 1969, three days after the race riots in Malaysia which left 190 people dead. What kind of law? A law which allows the government to deny people their basic human rights. Which rights? The right to freedom, the right to fair trial, the right to legal representation. For how long? Forever.

The EO is the type of law which countries may enact, from time to time, for limited durations, to deal with situations when speed is essential. Such laws may be required in times of dire threat to national security. Such laws may be required when action must be taken quickly to prevent public disorder. Such ‘derogation of basic rights’ may be necessary when the available numbers of policemen, investigators and prosecuting officers can’t cope with the demands of fairness to persons who are suspected of being a threat to public order.

Preventive detention – including the denial of visits by family and lawyers – may be necessary to prevent a suspect from sending signals to co-conspirators.

In Malaysia, the decision to detain someone under the EO is not made by a court or a judge. It’s made by the police and – after 60 days – by the Home Minister. By law, they may make the decision on the sole basis of suspicion. All they have to do is ‘suspect’ you are a threat to national security. No evidence is required. No court may conduct a judicial review of the reasons for ‘preventive detention.’

The EO detainee has only one avenue for challenging the reasons for his detention: the detainee may make a representation to an Advisory Board, composed of persons nominated by the government. The Advisory Board does not have preset meeting dates; it meets on an ad hoc basis. The Advisory Board can only make a recommendation to the Minister for Internal Security (Home Minister); the Minister is not obliged to heed the recommendation. According to some reports, the Advisory Board has disagreed with the Minister only in 2 % of the cases it has heard.

A judge may hear a suit of habeas corpus – an appeal to a court to release a prisoner – but only to review whether the procedural aspects of the detention complied with the law.

The courts have set aside detention orders on the following grounds: (1) the detainee was not informed of the reason for arrest, (2) no police officer attended the habeas corpus hearing to explain why the detention should continue, (3) the detainee’s lawyer was not informed of the date of meeting of the Advisory Board and (4) the detainee was not represented by counsel during the hearing.

Detainees can, and often have been, re-arrested when they leave the court. For this reason, detainees have little motivation to spend the RM 20,000 or so it costs in court and professional fees to apply for habeas corpus.

A succession of Home Ministers have used the EO in a most grievous way: there have been cases where persons have been re-arrested under the EO after being tried and acquitted by the courts of crimes under the Criminal Procedure Code (CPC). This is contemptuous disregard both for judges and for detainees.

This is how ‘preventive detention’ often works: a person is arrested under the CPC. After 3 days the police still don’t have sufficient evidence to prove a charge against the detainee. So they ask a magistrate to issue a detention order, good for 15 days. 15 days later they still don’t have sufficient evidence. They then go to another magistrate with another ‘charge’ and get a fresh detention order. They do this several times. Some call this ‘chain smoking.’

After getting several magistrates to issue detention orders, the police still don’t have sufficient evidence which will hold up in court. So they choose not to travel along the normal avenue of honourable justice, i.e. determining guilt on the basis of a fair trial, considering only permissible evidence (versus fabricated evidence or confessions produced under duress). They choose instead to go down the road of dishonourable action – they invoke the EO: either because there is no honest evidence, or because they lack the competence to gather evidence.

The EO allows up to 60 days detention without directly involving the Home Minister. After 60 days, the Home Minister can issue a remand order for 2 years – which can be renewed ad infinitum. There are known cases when persons have been detained for eight years. There have also been deaths in custody.

There are many documented instances of the use of the EO. The case of Samsudin is well known. This is a summary of Samsudin’s case prepared by Human Rights Watch:

“Samsudin was taken to nine different police stations in four states and detained, without access to counsel, for 143 days under successive detention orders by the Malaysian police. He was then detained under the EO for sixty days and banished to a remote village for two years under restricted residence. None of the government’s allegations against Samsudin were tested or proved in court. His punishment was simply ordered by the government.”

Notice the EO allows the Minister to order internal banishment. A person who is banished is usually taken to a remote place and left to fend for himself. The person is not provided with any means of getting started: no accommodation, no job, no allowances. Also, the person is required to report to the local police at least once a week, in addition to remaining at home usually from 8 pm to 6 am.

Even those who are taken as prisoners during wars or who are tried for war crimes have the right to fair trial, with the support of legal counsel – and may only be convicted by a duly appointed court: they are presumed innocent until proven guilty. Not so under the EO.

In 2005, a Malaysian Royal Commision recommended the repeal of the EO. The Commission said the EO is “undesirable because [it denies] the individual his personal liberty without a right to trial in an open court as provided for in Article 5 of the Constitution and in the International Bill of Rights. This right is among the most precious that the individual has and it must be protected.”

Every candle lit for the EO6 in the public protests around Malaysia daily is a message for the Inspector General of Police, Tan Sri Ismail Omar and the Home Minister, Dato’ Seri Hishammuddin Hussein, that they are not gods. Will you help them see the light?

Rama Ramanathan maintains the blog Rest Stop Thoughts

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