Miscarriage of justice under preventive detention law in Malaysia

Another case of outright violation of fundamental rights in Malaysia. Law is still at a state of chaos on our homeland. You may find that the case below may imitate the storyline of Green Zone, which illustrates the way US Government defamed the Iraqi Government under Saddam Hussein's tyranny rule for possessing Weapons of Mass Destruction and shamefully declared it as a cause for invasion of Iraq. It is one of the biggest lies of the century. Malaysia is no loser in this respect. Mere accusation is sufficient to put someone behind the bars. All these owe to the stupidly drafted ISA and relevant preventive detention laws. See the real case below which is copied from loyarburok.com, as follows:

Any Law that Goes Against Human Rights Ceases to be Lawful

30 March, 2010

By Elza Irdalynna

Elza Irdalynna’s letter about her brother Khaeryll Benjamin Ibrahim@ Benjy’s ordeal – from his impeded access to counsel to his re-arrest under preventive detention laws; where on the same day his lawyer, Amer Hamzah Arshad was manhandled and briefly arrested by the police.

Speak with me

by Elza Irdalynna
On March 11th, he was arrested at his apartment’s parking lot in Segambut. Police brought him to an apartment he rented in Kepong, and after entering, claimed that in that residence, he possessed 800grams of cocaine, and 140grams of methamphetamine, and accused him of processing and trafficking, putting him under the risk of being charged under Section 39B, which carries the death penalty.
On March 12th he was remanded for 7 days. When my parents inquired if we can engage a lawyer, the Investigation Officer told us “No need.”
On March 17th, after our family waited more than an hour, we were allowed to see him for the very first time, under supervision.
Again my mother asked if we should get him a lawyer, again the I.O advised against it, claiming “Lawyer tak boleh buat apa-apa sekarang. Buang duit je. (Lawyer can’t do anything now. It’s simply a waste of money).”
On March 18th, his remand was extended another 7 days. The magistrate inquired why there was no lawyer present for him, and whether he was made aware he had the right to a counsel of his choice. He replied “No.” Therefore, he requested for one, and only nine hours later, did the I.O call to inform my mother, who promptly engaged Amer Hamzah Arshad.
But the very next day, the police used their Executive authority under Section 28A that vetoed his right to a counsel. All requests made by our lawyer to visit him was denied.
Only after we complained to SUHAKAM, did the police allow Amer to visit him.
On the last day of his remand.
After the investigations were concluded.
For only 15 minutes.
On March 25th, he was brought to court, and charged under Section 12(2) for possession of 0.24grams of metaphetamin in his Segambut residence. Nothing the police claimed they found in the Kepong residence, the cocaine and shabu that was “already packaged to be distributed” or the so called “cocaine processing mini-lab” was brought to court.
Because there WAS none.
He was released on bail. A trial date was set. He was so close to being free, and seeing his 4 year old son again.
But as he was signing the papers of his release, the Plainclothes were outside waiting.
Not two steps after he came out of the bail department, without any explanation, they re-arrested him. Amer was restrained from protecting him, and only after Amer repeatedly asked them to show their I.D, did they do so. Still, no explanation was given to the family. We were merely told to go to the Headquarters and speak to Inspector Kang. The same guy who claimed my brother possessed the cocaine they NEVER found.
He never saw us, he was “in a meeting.” He wasn’t too occupied to give the press a statement, but was unavailable to see us.
We were told by the new I.O. for this case, and the DSP (the guy who signed the papers denying my brother the right to a counsel) that they are detaining him for 60 days under the Special Preventive Measures Act (LPK), after which, they could further detain him for 2 years if found guilty.
Guilty according to them. For under this act, it is a detention without trial, like the Internal Security Act. Any information gathered from “witnesses” and “investigations” will never be disclosed to him or his lawyer, or the court. He will also not be able to defend himself against any allegations. Under this act, he will never have his day in court.
On March 25th, my brother, Ben, was denied his Constitutional rights.
For 2 weeks, our family went through hell. Sleepless nights, press waiting outside our door, Ben had asthma attacks after the police delayed themselves in acquiring the requested medication for 3 days, Mama, who is a cancer patient herself, suffered chest pains and lost her voice.
We felt it was all worth it, for we would be able to have him back.
But now, a new nightmare has begun.
Whether or not Ben is guilty, should not be for the Police to decide. If they HAD the evidence to strengthen their warrant for re-arrest, why was it not brought to court? Why is Ben not given a chance to defend himself? How can we ever know the authenticity of these so called witnesses and their statements? If there were ANY to begin with?
Under this act, I could simply be caught for any crimes of drug offences the police accuse me of, because they can claim they have enough information (even if they have absolutely nothing) and detain me. For 60 days, for 2 years, and even EXTEND it after.
Acts like this and the ISA are licenses for ARBITRARY arrest and detention. Anytime. Anywhere. Anybody.
My family and Amer will not back down. We will fight for Ben’s right. We will speak up for all of those who were silenced before us, who will be silenced hereafter.
But we seek your help. In any way at all, help us fight this. Re-post this, write on your blogs, write to your local representative, to our newspapers, and together we shall use our voice, our art, our space, to stand up not just for Ben, but for all our rights.
Liberty is a Constitutional right. It’s time to get it back.

Matter of fact? Matter of law?

This is the so-called blurred line where judges are experts in drawing the distinction between matter of facts and matters of law. For the purpose of practical proceedings before a court, matter of facts can only be pleaded before a trial court ie. High Court or any other subordinate court. An appellate court does not entertain any matter of facts, as it is obliged to review only matters of law appealed before it so as to exercise its appellate jurisdiction. In short, an appellate court such as Court of Appeal or Federal Court in Malaysia is bound to respect the finding of facts in High Court, unless there is an error of law in either substantive or procedural matter that can jeopardize such finding. All these are basic legal knowledge that I have already absorbed generally in my 1st year of Legal Method studies.

The judges sitting on the bench of Court of Appeal in the case of Abdul Malek ought to resit for their legal examination in this subject. Don't worry, I won't charge exorbitant tuition fee in this respect. But you owe Malaysians a justice seen to be done. =)

Moot

A struggle throughout the whole week finally came to an end. Sweat, energy and teamwork were the basic elements that moulded our submitted case in totality. Law library almost became my 2nd home throughout the week, and now public interest litigation seems to be a very dynamic field in my eyes due to the non-stop preach by our funny and knowledgeable Dr Gan. I am pretty sure that he is one of the kindest lecturers whom I have ever encountered, as his willingness to meet me at around 12.30am last night (more accurately, early morning today) to take our bundle of authorities is the best proof.

The leading judge before us was a kind and experienced lawyer. He was right. Thanks to the faculty for giving us such a good chance to be involved in a hard learning process on our own. My legal methods seem very much useful now compared to the past, haha.

I think I am quite lucky for being able to grasp the key to establishing a strong case. Salute to my previous boss, Benny for equipping me with some essential skills to be a better lawyer. And thank you so much, Candy, Siew Siah and Yuet Mei. I enjoyed the fun time with you all.

See you, moot.

What I want is simple in fact

Few years ago, I was so afraid of being tied to somebody, as I noticed the fragility of my heart. The feeling of being hurt could always come back to haunt me whenever I felt lonely and moody. I could barely afford a minor blow in this respect. Today it's back.

I thought I have become tougher inside after I found her back. Sadly, it was merely an illusion. I am still the small boy who wants care more than any others around me.

For quite a number of times, the girl voiced out her concern over my bewildering aim. She was worried of the possibility of my dwindling time spent with her. 'I am a more future-oriented guy', that is the way I answer her usually. 'It's our future that I am looking forward to build, girl.' I thought she understood me. I am the eldest in family. My family needs me to prosper. Hence I must have a different kind of mentality to cope with both the financially and psychologically demanding hot soup that I am in.

Here she is. I think I really need her today. But my voice seemed to be so annoying to her ears. Perhaps that was only my perception. Hanging up the phone was virtually the only choice I had. The feeling haunts me back again.

What I want is simple. It is only you.