To all intents and purposes the Penal Code is being ignored by the authorities, judging by the frequent use of the Emergency Ordinance even when crimes committed fall under the former.

This is the preliminary conclusion of the UN Working Group on Arbitrary Detention revealed at the press conference held by its chairperson-rapporteur El Hadji Malick Sow at Wisma UN today.

He said: "Although there is a Penal Code, people are still detained under the Emergency Ordinance, even if the crimes that they have committed (are punishable under the Penal Code)."

The former magistrate from Senegal  added that the working group is seriously concerned about the preventive laws in force mainly; the Internal Security Act 1960, the Emergency (Public Order and Prevention of Crime) Ordinance, the Dangerous Drug (Special Preventive Measures) Act 1985 and the Restricted Residence Act.

Thousands are also  detained under the 1969 Emergency (Public Order and Crime Prevention) Ordinance (EO) for committing criminal offences punishable under the Penal Code, according to the report.

We have informed the government of this as it is a major concern, Malick said before a crowd of about 30 reporters and representatives from various embassies.

All stacked up against suspect

The preliminary findings state that these laws deny the detainee the right to a fair and public hearing by an independent and impartial tribunal, consecrated in the Universal Declaration of Human Rights and other principles of international customary law.

The law, which allows for detention of up to 60 days, is a classic example of arbitrary detention.

The detention is an administrative decision and there is no room for judicial intervention. The advisory board’s role is only confined to making recommendations which does not have to be accepted by the ministry, he explained.

He said that in 2009, there were only 10 habeas corpus applications which were successful out of a total of 92 and even so, it is only on technicalities.

Even if they are released by the habeas corpus application, they are frequently rearrested immediately after the release, he added.

Also present were delegate Roberto Garretón from Chile, who worked as a human rights lawyer, and United Nations Resident Coordinator for Malaysia, Kamal Maholtra.

The delegates visited Malaysia from June 7 to 18, at the invitation of the Malaysian Government, meeting high level authorities from the Executive, Legislative, and Judicial branches of the administration to study the institutional and legal framework regarding deprivation of liberty in the country.

They also met with the legal fraternity, civil society members and representatives of United Nations agencies and international organisations stationed in this country.

The Working Group also visited various places of detention, including  prisons, immigration holding facilities, police stations, psychiatric hospitals, and a drug rehabilitation centre.