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(Oct 10, 2012) On October 2, 2012, a High Court of Malaysia awarded damages to three opposition politicians and two activists who had been detained in that country for almost two years. High Court Judge Lau Bee Lan ruled that they had been detained illegally and awarded them more than RM4.06 million (over US$1.3 million) in damages. The arrests and detentions had followed anti-government protests in 2001. The damages were based on a rate of about US$5,000 for each person for each day they were detained. (5 Win Unlawful Detention Case, Awarded RM4.06m in Damages, THE MALAYSIAN INSIDER (Oct. 2, 2012);Maureen Cosgrove, Malaysia Court Awards Damages to Former Detainees, PAPER CHASE NEWSBURST (Oct. 3, 2012).)

The five plaintiffs had been arrested under Act 82, 1960 (as revised through Jan. 1, 2006), LAWS OF MALAYSIA [scroll down to Act 82].) That Act specified that anyone could be detained for up to two years if such detention was necessary to prevent a person from "acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof … ." (Id. art. 8.)

In addition to applauding the damages award, some commentators have hailed the court's criticism of the statements made by the police characterizing the defendants as terrorists. Hishamuddin Rais, an activist and one of the five plaintiffs in the case, stated that "[t]he court has reaffirmed our belief that the ISA is a law that has nothing to do with fighting terrorism. It is a law that has been used to arrest the political opponents of the ruling party." (Malaysian Court Awards Ex-Detainees Damages, BANGKOK POST (Oct. 2, 2012).)

In 2010, in a separate, similar case, a businessman detained under the ISA in the 1990s was awarded the approximate equivalent of US$1.07 million by another Malaysian High Court. (Id.)

Background on the ISA

The ISA had been widely criticized by human rights groups, including the United Nations Working Group on Arbitrary Detention, which recommended that it be revised or repealed. (Human Rights Council, Report of the Working Group on Arbitrary Detention - Addendum - Mission to Malaysia, A/HRC/16/47/Add.2, Office of the High Commissioner for Human Rights website [scroll down and select by title and date].) The ISA was abolished by MalaysianPrime Minister Najib Razak, following his 2011 announcement of a national security reform plan. (Malaysian Court Awards Ex-Detainees Damages, supra; Malaysia Repeals Internal Security Act, UPI.COM (Sept. 19, 2011).)

The law that replaced the ISA, theSecurity Offences (Special Measures) Act 2012 [hereinafter SOSMA] (Act No. 747, June 18, 2012, E-FEDERAL GAZETTE (June 22, 2012)) has also been criticized. Human Rights Watch (HRW) issued a statement based on the proposal for the Act, saying that it "does not go far enough to protect the fundamental rights and freedoms of Malaysians." (Mickey Spiegel, Smoke and Mirrors: Malaysia's "New" Internal Security Act, 167 ASIA PACIFIC BULLETIN (June 14, 2012); Security Offences (Special Measures) Bill 2012, Parlimen Malaysia website (last visited Oct. 9, 2012).) Among other matters, HRW pointed to the question of judicial review of detention. Whereas the old ISA had permitted 60 days of detention, which could be extended up to two years at a time, SOSMA has cut the initial detention to 28 days. (SOSMA, art. 4 (5).) The new legislation, however, still does not mandate judicial review for that initial detention period and also permits the authorities to hold a person for 48 hours without contact with family members or an attorney. (Spiegel, supra; SOSMA art. 5 (2).)

Author: Constance Johnson More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Malaysia More about this jurisdiction

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Last updated: 10/10/2012