Part 3
By MWC NEWS
Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act
By MWC NEWS
Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act
III. Human Rights Abuses against ISA Detainees
ISA detainees are subject to a wide range of abuses. Their procedural rights, including the right to a fair trial, the right to meet with an attorney, and the right to be informed of the reasons for arrest, are all systematically infringed. But abuse under the ISA is not limited to the denial of procedural rights: detainees are held under difficult conditions that are well below international standards, and are subject to a daily barrage of threats, coercion, intimidation, and, in some cases, physical abuse.
Arbitrary Arrest and Detention
First they came in and showed their police authorization card, then they showed the detention order under section 73 of the ISA. Immediately after that I was handcuffed. [All they said was] national security, nothing more. 59 — former ISA detainee, December 2003
Authorities refused to give family members any reason for the arrests beyond vague references to national security. The police also did not get a judicially-issued arrest warrant. Instead, wives of the detainees were often given a standard form stating that the detentions were carried out under section 73 of the ISA, with no specific information about what their husbands had allegedly done.
Family members who were present told Human Rights Watch of a similar pattern when arrests were conducted: arresting officers would arrive late at night in a group, mostly in plain clothes, and then, after making an arrest, search the house for several hours. Police would then seize virtually anything that would move, including mass circulation news magazines with pictures of Osama bin Laden on the cover, articles by former ISA detainee Saari Sungib, and even an album by Western pop star Cat Stevens, now known as Yusof Islam.60 One detainee had a VCD of the Western music group the Scorpions taken by officials. The authorities also often took computers from those families that had them, mobile phones, and bank books.
As one detainee’s family member told Human Rights Watch:
I was very surprised when the men came in at 3 a.m. They brought [name of husband withheld] in handcuffs and three of them came in to ransack the rooms. They gave me a form that said that your husband is being detained under the ISA. They told me that he was going to be detained for two weeks for investigation. . . . They searched for an hour or so, and then left at 4:30. Then at 5:45 a man came back and said that [name of husband withheld] had been taken in. No information, no nothing about the charges at that time.61
Another detainee’s wife had a similar experience:
When they came, I wasn’t in, I was out with my son. I came back at 11:30. When I came back, my husband was already gone. They were already in my bedroom when I came in. My son and I came in and my daughter was crying, saying that daddy was taken by the police. They questioned me. They showed me the paper [the standard form given to ISA detainees, which states that the individual is being detained for reasons of national security].62
The police also gave false contact information to the wives of detainees at the time of arrest, making it impossible for wives and family members to follow up with authorities to find out where their relative was being held. This further exacerbated the sense of confusion and isolation that families felt during and after the arrests.
Torture and Other Mistreatment
Once individuals were taken into custody, they were interrogated by officers from the Special Branch, which, although part of the police bureaucracy, functions as Malaysia’s domestic security service.63 During the political unrest in the 1970s and during Operation Lalang in the 1980s, Special Branch officers were called upon to interrogate, intimidate, and silence political detainees who were perceived as a threat to the Malaysian government.64 Because Special Branch officers are completely free of outside oversight when they interrogate ISA detainees, they have developed a reputation for abusive and coercive tactics.
Until the detainees are given an opportunity to talk about their experiences in a safe environment, free of government monitoring, it will be impossible to know the extent of the physical or psychological abuse that has taken place. HRW interviews with recently released detainees and family members, and affidavits of current detainees, however, reveal a pattern of physical abuse, including strong indications of torture. Some detainees allege they have been burned, while others reported being slapped in the face or kicked. For instance, Mohamad Kadar, a counter-terror detainee taken in by Malaysian authorities in January 2002, reported that Special Branch officers burned his beard, stepped on his head, and threw dirty water on him.65
International law widely prohibits torture and all cruel, inhuman, or degrading treatment or punishment. States are obliged to investigate all credible reports of torture. Article 5 of the Universal Declaration of Human Rights prohibits torture and other forms of mistreatment. The International Covenant on Civil and Political Rights (ICCPR) in Article 7 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture) reaffirm this prohibition. Article 10 of the ICCPR also holds that persons in detention must “be treated with humanity and with respect for the inherent dignity of the human person.” Although Malaysia is not a party to the ICCPR or the Convention against Torture, the ban on torture and other mistreatment is a fundamental principle of customary international law that applies at all times and in all circumstances.
Torture and other physical abuse
Interrogators often forced detainees to stand for long periods while answering questions, an extremely painful form of mistreatment. Detainees were sometimes forced to strip before questioning began. One detainee wrote in his affidavit: “During interrogation, I was asked to stand on one foot for an hour and only wearing my underwear.”66
Almost uniformly, relatives of detainees reported that the detainees were visibly in poor physical condition when they first saw them during their sixty-day detention period. Some family members reported seeing overt signs of torture, but the visits were heavily monitored, making it virtually impossible for detainees to give family members any real account of their conditions of detention.
One detainee’s wife told Human Rights Watch that her husband had to be helped into the room for his first family visit:
The visit lasted about one hour. He was pale. He seemed weak. He was limping and had to be assisted by the police as he walked into the room. I asked him what happened and he said that he fell in the bathroom. I was aware that he was being tortured. Generally he is very strong, but that day he cried. I’m not sure if he was crying over the injuries or if he was crying over the children.67
Another detainee’s wife made similar observations about her first visit:
During the second visit, I could see that he was under tremendous pressure. I could see that he had lost weight. Also he didn’t walk properly. He didn’t want to talk.68
Other wives noticed less overt signs of physical abuse, but received indirect comments or a refusal to talk about what happened in the early days of detention, which led them to fear the worst. As one wife told Human Rights Watch:
I believe that he was assaulted during the sixty day period. “I had lost hope of seeing you and the children,” he said of his time in sixty-day detention. If he said something like that, then I assume that his suffering was tremendous. I think he was kicked and beaten, but he didn’t want to disclose the details because he didn’t want to upset me.69
Another wife of a detainee, on the verge of tears, reported that her husband had refused to talk, but that she had received word that he had in fact been harmed:
When we asked how he was being treated, he said, “Wait until I come out.” I don’t know what happened to him during his sixty-day detention, but I think that he’s been physically harmed. Other detainees have said that he was tortured.70
Although most of the wives Human Rights Watch spoke to could only report signs of physical abuse, some of them were told by their husbands that they actually had been abused. One wife told Human Rights Watch that her husband was physically abused by interrogators trying to force him to confess:
He told me that he was asked to make a confession, or else they would arrest [him]. . . . He told me he was kicked around and still he didn’t confess.71
For some, seeing a loved one in such bad shape was too much to take:
He was shaking all over. I saw some mosquito bites on his hands. He was sweating, and he seemed scared. His mother started to cry when she saw him.72
Most KeADILan detainees reported being threatened by the authorities but not actually physically abused, either during the initial sixty-day detention period or during their time in Kamunting.73 One reason may be that their cases were much more high-profile, and the level of public scrutiny that the authorities were subject to was much higher.74
In the absence of such public scrutiny, Special Branch interrogators may have been more willing to physically mistreat militants among the ISA detainees. One former KeADILan detainee who was in detention at the same time as some of those held on allegations of terrorism stated that the alleged militants had told him that they were physically mistreated, and believed their harsher treatment would not have occurred if they had been able to bring their cases to the attention of the public:
They were tortured. Their beards were burned by cigarettes. They had cigarettes pushed into their skin, their necks. One had [his] genitals [hit]. This all happened because they did not file any habeas corpus application.75
Cruel, inhuman, and degrading treatment
Prolonged interrogation and sleep deprivation
Detainees are interrogated over and over again by Special Branch officials without the presence of legal counsel. The interrogators work in teams, and often question individuals for several hours straight, day after day. Several released detainees told Human Rights Watch that they had been interrogated daily for nearly the entire length of their initial sixty-day detention. One detainee reported being questioned for a full twenty-four hours without a rest.76
In some cases, interrogation sessions went on for so long that the interrogating officers sometimes themselves fell asleep in the middle of a session, leading to errors in the taking of testimony.77 Because neither the solitary confinement holding cells nor the interrogation rooms had windows, it was impossible for many detainees to know whether it was day or night, or how long they had been in detention.
Extended interrogation sessions, especially those that make use of sleep deprivation as a tool of interrogation, may amount to inhuman treatment under international law. The United States has repeatedly referred to sleep deprivation as a form of mistreatment in its annual Human Rights Country Reports.78
Threats and improper coercion
Threats of physical abuse were a regular feature of interrogation during the initial sixty days of detention.
One detainee told Human Rights Watch, “They threatened me with a wooden stick in my face when they alleged that I wasn’t cooperating.” Another detainee was told to “get ready” to be hit:
[I was] threatened with physical torture and asked to remove [my] spectacles and get ready to be slapped.79
Others were threatened with being hit with a rubber hose, a common prison technique because the hose, though painful, leaves little or no mark. According to one detainee, a Special Branch interrogator told him that he would “whip me with a rubber hose if I lied.”80
One wife of a detainee told Human Rights Watch what her husband told her:
He was intimidated while in detention. They cursed him, they used obscenities, and they yelled at him during the interrogation. They threatened to assault him, but they never actually hit him. They raised up their hand to hit him.81
Perhaps the most common form of coercion that Special Branch interrogators used was to promise that “cooperation” would lead to an early release. “Cooperation” apparently meant not only answering questions, but also not fighting the ISA detention through the courts, urging family members not to have contact with human rights groups, and generally following the commands of the Special Branch. While urging cooperation is a common interrogation tactic during regular criminal prosecutions, in the context of the ISA, where persons can be detained indefinitely without trial by the administrative authorities, its use can amount to an unlawful form of coercion.
Threats made in exchange for cooperation were widespread:
They told my husband, if you cooperate, within sixty days, you’ll be released. All of the IOs [interrogating officers] said this over and over. My husband said, “What else can I do to cooperate? This is all I have for you. I don’t know any more.” How can you cooperate if you don’t know how to answer the question?82
Conversely, failure to “cooperate” meant that a detainee would definitely be sent to Kamunting for two years under section 8 of the ISA. As one former ISA detainee told Human Rights Watch, “They said over and over again, if I didn’t cooperate, they would send me to Kamunting for two years.”83
Such tactics are a violation of even the extremely forgiving standards of the ISA. Under the ISA, an individual can be detained for two years under section 8 only if he or she is a threat to national security. Failure to “cooperate” with investigators, or even failing to answer questions to an interrogator’s satisfaction, does not constitute groups for detention under section 8.
In some cases, the Special Branch went beyond making threats about release or transfer to Kamunting. As one detainee told Human Rights Watch, they were also threatened with transfer to U.S. custody at Guantanamo Bay:
They threatened me: they said over and over again, if I didn’t cooperate, they would send me to Kamunting for a two-year ISA detention. They also threatened to send me to Cuba, to Guantanamo Bay. They said, “If you don’t cooperate, we will send you there.”84
Officials reinforced the commonly held view that Guantanamo is an unsafe place for detainees:
They told me, if you are sent to Cuba, the torture is severe. You might lose an arm or a leg, you might be paralyzed.85
Others were not threatened with transfer to Guantanamo, but instead were told that they should not fight to be released from Kamunting, because they would only be taken in by the United States and sent to Guantanamo if they won their release.86
Special Branch officers also threatened to detain family members if detainees refused to cooperate. One wife learned from her husband that she was used by the authorities as a bargaining chip:
They told him that if he didn’t cooperate, then I would be detained, and my son would be sent to a welfare home. Also he would be sent for a two-year detention. But if he cooperates, then they told him that he would be released within sixty days.87
Other detainees received similar threats. One detainee wrote on an affidavit smuggled out of Kamunting that “they [Special Branch] threatened to arrest my wife if I did not cooperate.”88
Another detainee was told that his brother would be arrested if he did not cooperate:
They threatened to arrest my elder brother by showing me a photo of him being tailed by Special Branch.89
In the context of the broad powers available to the government under the ISA, these threats would certainly have seemed very real to most detainees. Faced with the difficult prospect of putting their wives or other family members through arrest, detention, and intensive interrogation under the ISA that they themselves had endured, detainees were under enormous pressure to comply with the investigators’ demands.
The Special Branch also sought to coerce the testimony of detainees by threatening to deport them or their family members from the country. Because some of the detainees were Indonesian or Singaporean nationals who had residency status in Malaysia that could be revoked, Special Branch interrogators used their residency status as a means to coerce them to confess to criminal offenses. One detainee’s wife told Human Rights Watch:
Even now in Kamunting, they keep threatening that he will be sent back to Indon [Indonesia]. . . . They say you must cooperate or we will send you back. My children are Malaysian: what will happen if he is sent back? What will happen over there? Are you going to split us up? And what if he is detained there? My husband is being threatened in that way.90
According to one detainee, the interrogation officers claimed that they could change a detainee’s immigration status with a single phone call:
One top official was waiting for me in the interrogation room, along with the six other men who usually question me. His face looked so angry, he spoke very loud, and he tried to threaten and intimidate me. He told me if I didn’t cooperate, he would send me back to Indonesia, my immigration card would be taken away, my work permit would be cancelled, my belongings would be confiscated, and all my children would be sent back to Indonesia.
At that moment he ordered his man to contact the immigration registration officer to cancel my entry permit and also to withdraw the I/C card that I have had for 18 years in Malaysia. I did not know if he meant with what he said or he only tried to threaten and intimidate me. All I knew was that they looked very angry and were not satisfied with my answer. Since then, I found myself being treated very meanly and inhumanely. Even the door guard did not want to open the door for me to go to the bathroom, which lasted for several days.
After that incident, they did not call me for a daily meeting for ten days. They let me stay in a very hot room all night and all day, with no mattress, pillow, nor blanket, and no more mosquito repellent, which they used to give me.91
Humiliating and degrading treatment
Interrogations often took place under conditions designed to humiliate the detainees. Interrogators forced detainees to strip to their underwear before questioning began. In at least one instance, a detainee was forced to urinate in front of the interrogators.92 One detainee was forced to masturbate, and later made to insult himself:
I was forced to masturbate and imagine making love with a JI lady. If I refused, they threatened to pull my fingernails.
I was forced to lift a 20-litre dustbin filled with waste, cigarette butts and dust. Then [they] forced me to put my face into the dustbin and inhale the cigarette dust and [was] forced to say, “I am stupid” on numerous occasions.93
Interrogators also asked questions clearly meant to demean and intimidate the detainees, including questions about the detainees’ sex life, and about the adequacy of their sexual performance.94 Within Malaysia’s socially conservative Muslim society, discussions of such issues are extremely invasive.
According to one detainee:
They asked irrelevant questions, such as, “How do you have sex with your wife? Did you lick you wife’s ass? How long do you last when you have sex with your wife?”95
Others faced similar obscene and humiliating questions:
They asked irrelevant and obscene questions of how I carry out sexual relationship with my wife. When I refused to answer, they assaulted me.96
Many detainees also reported continually being asked irrelevant political questions, including questions about former Deputy Prime Minister Anwar Ibrahim, the political viability of PAS, and about connections to former KeADILan detainees. Detainees were asked which politicians they had voted for in the past, and what they thought about then-Prime Minister Mahathir’s stewardship, and they were taunted about what interrogators said was the failure and impending political death of the opposition KeADILan party.97
As with the KeADILan detainees, Anwar was a particular fixation for Special Branch interrogators:
We were asked questions not relevant to the arrest, including the wrongdoing of Anwar Ibrahim. Interrogating Officers said that the Special Branch have a shelf of reports about the wrongdoing of Anwar. They also said that before the case [Anwar’s trial on sodomy and corruption], numerous reports were made against Anwar.98
Mohamad Iqbal was subjected to similar commentary by the Special Branch:
They told me that Anwar Ibrahim is a sex maniac and a prostitute. [They said that ] he has been a prostitute for several men. They also said that he is a foreign agent. . . .99
Special Branch interrogators also sought to convince detainees that UMNO was the only viable political party in Malaysia, constantly disparaging UMNO’s political rivals. Several detainees noted that both KeADILan and PAS were regular targets. “They . . . said KeADILan will die in the next election, just like PAS,” one detainee noted in an affidavit.100
Another detainee told of being urged to join UMNO:
They asked me which political party I support and talked about the wrongdoing of PAS spiritual leader Nik Aziz. They influenced me to be an UMNO member and support UMNO when released from detention.101
Many KeADILan detainees, arrested on charges of planning to use violence to overthrow the government, reported being subjected to the same irrelevant questions and statements about their political background and activities.102 The use of such tactics calls into question the motivations of the Special Branch in detaining these men, and raises the possibility that the motivation for the arrests may have been political instead of security related.
The Special Branch interrogators also went to some lengths to keep ISA detainees, many of whom have devout religious beliefs, from seeking solace through religious practice. The authorities used the detainees’ sensitivity to religious issues as a weakness to abuse and humiliate them.
This abuse took two forms: denying detainees the ability to fulfill even some of the fundamental tenets of Islam, and openly insulting or degrading their religious practices.
During the first sixty days of detention, detainees were not allowed to have a copy of the Quran for weeks at a time. On various occasions, individual detainees were not told the time of the call to prayer, were not allowed to make ablutions in preparation for prayer, were not given proper dress for prayer, and were not told the direction of Mecca. During the time that they were held incommunicado, detainees were denied access to religious counsel. Some detainees were also forced to shave their beards when they were sent to Kamunting for the first time.103 According to one detainee:
[My] request to borrow and read the Quran was denied, and only during the last week of detention [was I given a copy of the Quran].104
The U.N. Human Rights Committee has made it clear that individuals do not surrender their right to practice their religious beliefs merely because they have been incarcerated:
Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.105
Refusing to give ISA detainees a copy of the Quran or denying them the opportunity to wash before prayer cannot be justified on security grounds.
The U.N. Standard Minimum Rules on the Treatment of Prisoners also guarantees the right of detainees to practice their religion while in detention, and specifies that religious texts should be made available and that visitations by religious counselors should be allowed.106
Interrogators also made sexual remarks related to Islam. One detainee was lectured on the appropriateness of sodomizing his wife under Islam, and others were told that they should question their beliefs in other ways.107 Prison officials tried to deny the detainees’ Muslim identity. Detainees were forced to sing Hindi songs; and one guard told a detainee, “You are not a Muslim, but a Hindu Indian.”108
Coerced and false confessions
International law prohibits a person from being compelled to testify against oneself or to confess guilt.109 Under the pressure of coercive interrogation techniques, many detainees made confessions that they would later recant. In several cases, detainees claimed that they had made false confessions to appease their interrogators. Detainees claimed that in some cases they simply signed on to confessions prepared by their interrogators.
In their joint affidavit, detainees also complained of the rewriting of statements by Special Branch interrogators. According to one detainee:
My statement was doctored by Special Branch. During the representation with the Advisory Board, the Special Branch doctored the statement by stating that I “have the knowledge of the establishment of the Regional Islamic Nation and it is the struggle of Jemaah Islamiyah. The struggle is to topple the Malaysian Government through militant means,” but I do not have any knowledge of it. The Chairman of the Advisory Board then said, “Even though you do not know but your top leadership knows,” and when I asked why the statement states that I have that knowledge, he kept quiet.110
The detainees further claimed that the Special Branch fabricated allegations against them to include in their original detention orders:
The facts in the detention order and reasons for detention were engineered. We have no knowledge and have never been asked by our interrogators about the establishment of Regional Islamic Nation through militant means. The facts were engineered by Special Branch, stating that they received the information from Ministry of Home Affairs.111
Conditions of Detention
Conditions of detention during the initial sixty-day detention period are notoriously bad. The current group of ISA detainees was held in solitary confinement, in small cells that lacked windows and even the most basic bedding. Detainees were denied visits from family members for the first several weeks of their detention. Access to legal counsel is usually denied for the entirety of the first sixty days.
Special branch officers have treated the detainees abusively, repeatedly insulting detainees and subjecting them to questions and comments about their sexual habits. Detainees also have been subjected to intensive interrogation and regularly asked irrelevant and demeaning questions during interrogation sessions.
These conditions, most of which in and of themselves violate international standards, also create an environment ripe for other forms of abuse. Extended incommunicado detention ensures that Special Branch interrogators have unfettered access to the detainees, and that any ill-treatment goes unreported, at least initially. This may encourage interrogators and prison officials to act with a freer hand, knowing that wounds heal and memories dim.
Extended incommunicado detention is also part of a broader coercive environment. Forcing detainees to spend several weeks alone, having contact only with prison guards and special branch interrogators, significantly weakens their resolve and allows interrogators to more successfully exert their will over them.
One former detainee told Human Rights Watch:
I was in solitary confinement. It was about an 8x10 [foot] room, with no windows. There was no furniture save for a bunk, and no pillows. The bathroom was down the hall, and we had to ask to use it. I knew the day, roughly, but not the time. I kept track of the days by meals and prayer times.112
The men had to contend with Malaysia’s sweltering heat in their cells, which were often infested with mosquitoes. In a long handwritten affidavit written while in immigration detention, Muslim cleric Mohamad Iqbal described similar conditions during his ISA detention:
[The prison officials] gave me two pairs of blue uniforms. They also gave me a toothbrush and toothpaste, soap, detergent, a plate, and a cup. After that they took me to a room, which was very hot. There was also no window and a 100-watt light bulb was on 24 hours a day.
The room had two beds, and was about 8x10 feet. There was no mattress, no pillow, and no bedclothes. Near the ceiling there was a machine that looked like an air conditioner. Sometimes it made the room temperature very cold, but sometimes it also made the room very hot. There was a hole for air circulation placed near the floor. This hole allowed many mosquitoes to enter the room at night. The room was never exposed to the sunlight. Living in such a room for 54 days made me feel like I was living underground.
For the first ten days I slept on the plywood, as they did not give me a mattress or a pillow. For ten days after that, they handed me a mattress, a pillow, and a blanket, but after that they took them away again for a month. They brought them back in for the last four days of my stay. During my fifty-four days there they moved me several times to another room they referred to as “the haunted room.” They put me there for ten days and then moved me to another room within the same block.113
Current detainees’ descriptions of their conditions of detention closely matched those of earlier, political detainees. According to one former political detainee:
I was finally pushed through a door and when my blindfold was removed and my eyes adjusted to the light I saw that I was in a cell of approximately 8 feet square [probably meaning 8x8 feet, or sixty-four square feet]. There were two wooden platforms placed against the cell walls, one on each side. There was no other furniture of any sort. The cell had no window and ventilation was through two tiny ratholes at the bottom of one wall. There was no bedding or blankets. . . . There was a small thin towel on one platform and beside it was a plastic bowl. The room was brightly lit by an overhead light that was never switched off throughout my stay there.
The glare of the light could not be avoided from any position in that small cell. There was an old vent on one wall that made a continuous horrendous grating sound. This vent did not seem to be moving any air about and was also never switched off. No sound from outside came through the door. The cell was literally soundproof though at times I thought I heard the sound of coughing and heavy breathing as I was led out of the cell to various other places.114
These detention conditions fall far short of international standards. The U.N. Standard Minimum Rules for the Treatment of Prisoners requires that prisoners be provided with suitable light, windows, and bedding.115 Article 10 of the Standard Minimum Rules requires that “all accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climactic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”116 Article 19 requires that all prisoners be issued “a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.”117 The conditions that ISA detainees live under fall far short of these basic standards.
In addition to the conditions described above, ISA detainees being held for alleged terrorist activity have been subjected to daily intimidation and abuse by prison officials and Special Branch interrogators. Special Branch officials openly curse and insult detainees, and regularly force detainees to take off their clothes in front of them. Special Branch officers also force detainees to perform menial tasks for them; some detainees have been forced to make tea for Special Branch officers. Several detainees claimed that they had been told to massage their interrogators.118
Some detainees were denied medical assistance:
[I was] not given assistance for medical attention when I was screaming for help due to severe pain. I thought I was going to die. My body was sweating because of the pain. They gave assistance half an hour later, but they didn’t send me to the hospital. They only took me to a room and gave me some warm water. I was actually having a gall stone.119
Under the Standard Minimum Rules for the Treatment of Prisoners, prison health officials are required to respond to requests for medical treatment from prisoners, and prisoners in need of specialist treatment should be taken to specialist facilities outside of the prison.120
Many of the detainees described long-term solitary confinement in such conditions as a form of “mental torture.”121 While solitary confinement is not forbidden under international law, prolonged solitary confinement has been recognized by the U.N. Human Rights Committee and others as a form of ill-treatment prohibited by the ICCPR.122 The Committee against Torture also criticized the use of incommunicado detention.123
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[59] Human Rights Watch interview with TY, Kuala Lumpur, December 2003.
[60] Human Rights Watch interviews with family members of ISA detainees, December 2003.
[61] Human Rights Watch interview with AZ, Kuala Lumpur, December 2003.
[62] Human Rights Watch interview with RR, Kuala Lumpur, December 2003.
[63] For a brief account of the role of that Special Branch played in the Anwar affair, see Thomas Fuller, “Anwar’s Trial Brings Tactics of Malaysia’s ‘Special’ Police to Light,” International Herald Tribune, November 13, 1998.
[64] See S. Husin Ali, Two Faces: Detention without Trial, (INSAN: Kuala Lumpur, 1996); Dr. Tan Seng Giaw, “The First 60 Days: the 27 October 1987 ISA Arrests,” Democratic Action Party, June 1989.
[65] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit signed by 31 current ISA detainees, on file with Human Rights Watch.
[66] Written complaint of Mohidin bin Shari, on file with Human Rights Watch.
[67] Human Rights Watch interview with YC, Kuala Lumpur, December 2003.
[68] Human Rights Watch interview with AZ, Kuala Lumpur, December 2003.
[69] Human Rights Watch interview with VG, Kuala Lumpur, December 2003.
[70] Human Rights Watch interview with BD, Kuala Lumpur, December 2003.
[71] Human Rights Watch interview with YC, Kuala Lumpur, December 2003.
[72] Human Rights Watch interview with EN, Kuala Lumpur, December 2003.
[73] There were some isolated cases of physical abuse: shortly before being released, ISA detainees Tian Chua and Hishamuddin Rais reported being assaulted in detention, and filed a report with SUHAKAM urging them to take action. “ISA detainees assaulted: KeADILan wants answers,” Malaysiakini, May 10, 2003; Beh Lih Yi, “Suhakam to probe ex-ISA detainees’ complaint of assault,” Malaysiakini, July 1, 2003.
[74] One former political detainee told Human Rights Watch that there was in fact a different standard in terms of physical abuse of ISA detainees, and that non-political detainees were subject to worse treatment: “They said if I was not a ‘political’ detainee, I would be subject to physical abuse,” he said. Human Rights Watch interview, Kuala Lumpur, December 2003.
[75] Human Rights Watch interview with former ISA detainee XY, detained for political activity, Kuala Lumpur, December 2003.
[76] Interview with ex-ISA detainee detained on anti-terrorism grounds, December 2003.
[77] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[78] For example, in its 2001 Country Report, the US government criticized Burma for its practice of “routinely subject[ing] detainees to harsh interrogation techniques designed to intimidate and disorient,” and listed such techniques as sleep deprivation, food deprivation, and being forced to remain in uncomfortable positions for long periods of time. U.S. State Department, 2001 Country Reports on Human Rights Practices (Burma), Sect. 1(c). In 2002, the U.S. government cited Iran for “numerous credible reports that security forces . . . continue . . . to torture detainees,” and noted especially the use of sleep deprivation and “prolonged and incommunicado detention.” U.S. State Department, 2002 Country Reports on Human Rights Practices (Iran), Sect. 1(c) and (d). Saudi Arabia, Tunisia, and Turkey, among others, were also cited by the U.S. government for the use of sleep deprivation as an interrogation technique. See generally U.S. State Department, Country Reports on Human Rights Practices.
[79] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[80] Ibid.
[81] Human Rights Watch interview with NK, Kuala Lumpur, December 2003.
[82] Human Rights Watch interview with JS, Kuala Lumpur, December 2003.
[83] Human Rights Watch interview with ex-ISA detainee TY, Kuala Lumpur, December 2003.
[84] Ibid.
[85] Ibid.
[86] Human Rights Watch interviews, December 2003.
[87] Human Rights Watch interview with NK, Kuala Lumpur, December 2003.
[88] Affidavit of Mohidin b. Shari, on file with Human Rights Watch.
[89] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[90] Human Rights Watch interview with RW, Kuala Lumpur, December 2003.
[91] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[92] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[93] Complaint by Sulaiman bin Suramin, affidavit on file with Human Rights Watch.
[94] Written complaints of Sulaiman b. Suramin and Mohidin b. Shari, on file with Human Rights Watch.
[95] Ibid.
[96] Ibid.
[97] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[98] Ibid.
[99] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[100] Affidavit of Mat Sah bin Mohamad Satray, on file with Human Rights Watch.
[101] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[102] See Fritz, Unjust Order, pp. 54-5.
[103] Ibid.
[104] Ibid.
[105] The right to freedom of thought, conscience and religion (Art. 18), 30/07/93, CCPR General Comment 22. (General Comments), Forty-eighth session, 1993, paragraph 8.
[106] U.N. Standard Minimum Rules for the Treatment of Prisoners, articles 41 and 42.
[107] The detainees made reference to the Islamic law doctrine of sherk, which means apostasy.
[108] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[109] See, e.g. ICCPR, article 14(3)(g); Convention against Torture, article 15.
[110] Ibid.
[111] Ibid.
[112] Human Rights Watch interview with TY, Kuala Lumpur, December 2003.
[113] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[114] Dr. Munawar Ahmad Anees, Statutory Declaration, November 7, 1998.
[115] U.N. Standard Minimum Rules for the Treatment of Prisoners, articles 10, 11, and 19.
[116] U.N. Standard Minimum Rules, article 10.
[117] U.N. Standard Minimum Rules, article 19.
[118] Affidavit.
[119] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[120] Standard Minimum Rules, articles 10, 11, and 19.
[121] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[122] Article 7 of the ICCPR prohibits “torture or other cruel, inhuman, or degrading treatment or punishment.” “The Committee notes that prolonged solitary confinement of the detainee or imprisoned person may amount to acts prohibited by Article 7,” General Comment 20, HRI/GEN/1/Rev. 1 (1994), p. 30, paragraph 11, in Ingelse, The UN Committee against Torture: An Assessment, Kluwer Law International, 2001, p. 256. See also Nigel S. Rodley, The Treatment of Prisoners Under International Law, Oxford University Press, 1999, p. 294.
[123] See Chris Ingelse, The UN Committee against Torture: An Assessment, (Kluwer Law International, 2001), p. 256.
ISA detainees are subject to a wide range of abuses. Their procedural rights, including the right to a fair trial, the right to meet with an attorney, and the right to be informed of the reasons for arrest, are all systematically infringed. But abuse under the ISA is not limited to the denial of procedural rights: detainees are held under difficult conditions that are well below international standards, and are subject to a daily barrage of threats, coercion, intimidation, and, in some cases, physical abuse.
Arbitrary Arrest and Detention
First they came in and showed their police authorization card, then they showed the detention order under section 73 of the ISA. Immediately after that I was handcuffed. [All they said was] national security, nothing more. 59 — former ISA detainee, December 2003
Authorities refused to give family members any reason for the arrests beyond vague references to national security. The police also did not get a judicially-issued arrest warrant. Instead, wives of the detainees were often given a standard form stating that the detentions were carried out under section 73 of the ISA, with no specific information about what their husbands had allegedly done.
Family members who were present told Human Rights Watch of a similar pattern when arrests were conducted: arresting officers would arrive late at night in a group, mostly in plain clothes, and then, after making an arrest, search the house for several hours. Police would then seize virtually anything that would move, including mass circulation news magazines with pictures of Osama bin Laden on the cover, articles by former ISA detainee Saari Sungib, and even an album by Western pop star Cat Stevens, now known as Yusof Islam.60 One detainee had a VCD of the Western music group the Scorpions taken by officials. The authorities also often took computers from those families that had them, mobile phones, and bank books.
As one detainee’s family member told Human Rights Watch:
I was very surprised when the men came in at 3 a.m. They brought [name of husband withheld] in handcuffs and three of them came in to ransack the rooms. They gave me a form that said that your husband is being detained under the ISA. They told me that he was going to be detained for two weeks for investigation. . . . They searched for an hour or so, and then left at 4:30. Then at 5:45 a man came back and said that [name of husband withheld] had been taken in. No information, no nothing about the charges at that time.61
Another detainee’s wife had a similar experience:
When they came, I wasn’t in, I was out with my son. I came back at 11:30. When I came back, my husband was already gone. They were already in my bedroom when I came in. My son and I came in and my daughter was crying, saying that daddy was taken by the police. They questioned me. They showed me the paper [the standard form given to ISA detainees, which states that the individual is being detained for reasons of national security].62
The police also gave false contact information to the wives of detainees at the time of arrest, making it impossible for wives and family members to follow up with authorities to find out where their relative was being held. This further exacerbated the sense of confusion and isolation that families felt during and after the arrests.
Torture and Other Mistreatment
Once individuals were taken into custody, they were interrogated by officers from the Special Branch, which, although part of the police bureaucracy, functions as Malaysia’s domestic security service.63 During the political unrest in the 1970s and during Operation Lalang in the 1980s, Special Branch officers were called upon to interrogate, intimidate, and silence political detainees who were perceived as a threat to the Malaysian government.64 Because Special Branch officers are completely free of outside oversight when they interrogate ISA detainees, they have developed a reputation for abusive and coercive tactics.
Until the detainees are given an opportunity to talk about their experiences in a safe environment, free of government monitoring, it will be impossible to know the extent of the physical or psychological abuse that has taken place. HRW interviews with recently released detainees and family members, and affidavits of current detainees, however, reveal a pattern of physical abuse, including strong indications of torture. Some detainees allege they have been burned, while others reported being slapped in the face or kicked. For instance, Mohamad Kadar, a counter-terror detainee taken in by Malaysian authorities in January 2002, reported that Special Branch officers burned his beard, stepped on his head, and threw dirty water on him.65
International law widely prohibits torture and all cruel, inhuman, or degrading treatment or punishment. States are obliged to investigate all credible reports of torture. Article 5 of the Universal Declaration of Human Rights prohibits torture and other forms of mistreatment. The International Covenant on Civil and Political Rights (ICCPR) in Article 7 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture) reaffirm this prohibition. Article 10 of the ICCPR also holds that persons in detention must “be treated with humanity and with respect for the inherent dignity of the human person.” Although Malaysia is not a party to the ICCPR or the Convention against Torture, the ban on torture and other mistreatment is a fundamental principle of customary international law that applies at all times and in all circumstances.
Torture and other physical abuse
Interrogators often forced detainees to stand for long periods while answering questions, an extremely painful form of mistreatment. Detainees were sometimes forced to strip before questioning began. One detainee wrote in his affidavit: “During interrogation, I was asked to stand on one foot for an hour and only wearing my underwear.”66
Almost uniformly, relatives of detainees reported that the detainees were visibly in poor physical condition when they first saw them during their sixty-day detention period. Some family members reported seeing overt signs of torture, but the visits were heavily monitored, making it virtually impossible for detainees to give family members any real account of their conditions of detention.
One detainee’s wife told Human Rights Watch that her husband had to be helped into the room for his first family visit:
The visit lasted about one hour. He was pale. He seemed weak. He was limping and had to be assisted by the police as he walked into the room. I asked him what happened and he said that he fell in the bathroom. I was aware that he was being tortured. Generally he is very strong, but that day he cried. I’m not sure if he was crying over the injuries or if he was crying over the children.67
Another detainee’s wife made similar observations about her first visit:
During the second visit, I could see that he was under tremendous pressure. I could see that he had lost weight. Also he didn’t walk properly. He didn’t want to talk.68
Other wives noticed less overt signs of physical abuse, but received indirect comments or a refusal to talk about what happened in the early days of detention, which led them to fear the worst. As one wife told Human Rights Watch:
I believe that he was assaulted during the sixty day period. “I had lost hope of seeing you and the children,” he said of his time in sixty-day detention. If he said something like that, then I assume that his suffering was tremendous. I think he was kicked and beaten, but he didn’t want to disclose the details because he didn’t want to upset me.69
Another wife of a detainee, on the verge of tears, reported that her husband had refused to talk, but that she had received word that he had in fact been harmed:
When we asked how he was being treated, he said, “Wait until I come out.” I don’t know what happened to him during his sixty-day detention, but I think that he’s been physically harmed. Other detainees have said that he was tortured.70
Although most of the wives Human Rights Watch spoke to could only report signs of physical abuse, some of them were told by their husbands that they actually had been abused. One wife told Human Rights Watch that her husband was physically abused by interrogators trying to force him to confess:
He told me that he was asked to make a confession, or else they would arrest [him]. . . . He told me he was kicked around and still he didn’t confess.71
For some, seeing a loved one in such bad shape was too much to take:
He was shaking all over. I saw some mosquito bites on his hands. He was sweating, and he seemed scared. His mother started to cry when she saw him.72
Most KeADILan detainees reported being threatened by the authorities but not actually physically abused, either during the initial sixty-day detention period or during their time in Kamunting.73 One reason may be that their cases were much more high-profile, and the level of public scrutiny that the authorities were subject to was much higher.74
In the absence of such public scrutiny, Special Branch interrogators may have been more willing to physically mistreat militants among the ISA detainees. One former KeADILan detainee who was in detention at the same time as some of those held on allegations of terrorism stated that the alleged militants had told him that they were physically mistreated, and believed their harsher treatment would not have occurred if they had been able to bring their cases to the attention of the public:
They were tortured. Their beards were burned by cigarettes. They had cigarettes pushed into their skin, their necks. One had [his] genitals [hit]. This all happened because they did not file any habeas corpus application.75
Cruel, inhuman, and degrading treatment
Prolonged interrogation and sleep deprivation
Detainees are interrogated over and over again by Special Branch officials without the presence of legal counsel. The interrogators work in teams, and often question individuals for several hours straight, day after day. Several released detainees told Human Rights Watch that they had been interrogated daily for nearly the entire length of their initial sixty-day detention. One detainee reported being questioned for a full twenty-four hours without a rest.76
In some cases, interrogation sessions went on for so long that the interrogating officers sometimes themselves fell asleep in the middle of a session, leading to errors in the taking of testimony.77 Because neither the solitary confinement holding cells nor the interrogation rooms had windows, it was impossible for many detainees to know whether it was day or night, or how long they had been in detention.
Extended interrogation sessions, especially those that make use of sleep deprivation as a tool of interrogation, may amount to inhuman treatment under international law. The United States has repeatedly referred to sleep deprivation as a form of mistreatment in its annual Human Rights Country Reports.78
Threats and improper coercion
Threats of physical abuse were a regular feature of interrogation during the initial sixty days of detention.
One detainee told Human Rights Watch, “They threatened me with a wooden stick in my face when they alleged that I wasn’t cooperating.” Another detainee was told to “get ready” to be hit:
[I was] threatened with physical torture and asked to remove [my] spectacles and get ready to be slapped.79
Others were threatened with being hit with a rubber hose, a common prison technique because the hose, though painful, leaves little or no mark. According to one detainee, a Special Branch interrogator told him that he would “whip me with a rubber hose if I lied.”80
One wife of a detainee told Human Rights Watch what her husband told her:
He was intimidated while in detention. They cursed him, they used obscenities, and they yelled at him during the interrogation. They threatened to assault him, but they never actually hit him. They raised up their hand to hit him.81
Perhaps the most common form of coercion that Special Branch interrogators used was to promise that “cooperation” would lead to an early release. “Cooperation” apparently meant not only answering questions, but also not fighting the ISA detention through the courts, urging family members not to have contact with human rights groups, and generally following the commands of the Special Branch. While urging cooperation is a common interrogation tactic during regular criminal prosecutions, in the context of the ISA, where persons can be detained indefinitely without trial by the administrative authorities, its use can amount to an unlawful form of coercion.
Threats made in exchange for cooperation were widespread:
They told my husband, if you cooperate, within sixty days, you’ll be released. All of the IOs [interrogating officers] said this over and over. My husband said, “What else can I do to cooperate? This is all I have for you. I don’t know any more.” How can you cooperate if you don’t know how to answer the question?82
Conversely, failure to “cooperate” meant that a detainee would definitely be sent to Kamunting for two years under section 8 of the ISA. As one former ISA detainee told Human Rights Watch, “They said over and over again, if I didn’t cooperate, they would send me to Kamunting for two years.”83
Such tactics are a violation of even the extremely forgiving standards of the ISA. Under the ISA, an individual can be detained for two years under section 8 only if he or she is a threat to national security. Failure to “cooperate” with investigators, or even failing to answer questions to an interrogator’s satisfaction, does not constitute groups for detention under section 8.
In some cases, the Special Branch went beyond making threats about release or transfer to Kamunting. As one detainee told Human Rights Watch, they were also threatened with transfer to U.S. custody at Guantanamo Bay:
They threatened me: they said over and over again, if I didn’t cooperate, they would send me to Kamunting for a two-year ISA detention. They also threatened to send me to Cuba, to Guantanamo Bay. They said, “If you don’t cooperate, we will send you there.”84
Officials reinforced the commonly held view that Guantanamo is an unsafe place for detainees:
They told me, if you are sent to Cuba, the torture is severe. You might lose an arm or a leg, you might be paralyzed.85
Others were not threatened with transfer to Guantanamo, but instead were told that they should not fight to be released from Kamunting, because they would only be taken in by the United States and sent to Guantanamo if they won their release.86
Special Branch officers also threatened to detain family members if detainees refused to cooperate. One wife learned from her husband that she was used by the authorities as a bargaining chip:
They told him that if he didn’t cooperate, then I would be detained, and my son would be sent to a welfare home. Also he would be sent for a two-year detention. But if he cooperates, then they told him that he would be released within sixty days.87
Other detainees received similar threats. One detainee wrote on an affidavit smuggled out of Kamunting that “they [Special Branch] threatened to arrest my wife if I did not cooperate.”88
Another detainee was told that his brother would be arrested if he did not cooperate:
They threatened to arrest my elder brother by showing me a photo of him being tailed by Special Branch.89
In the context of the broad powers available to the government under the ISA, these threats would certainly have seemed very real to most detainees. Faced with the difficult prospect of putting their wives or other family members through arrest, detention, and intensive interrogation under the ISA that they themselves had endured, detainees were under enormous pressure to comply with the investigators’ demands.
The Special Branch also sought to coerce the testimony of detainees by threatening to deport them or their family members from the country. Because some of the detainees were Indonesian or Singaporean nationals who had residency status in Malaysia that could be revoked, Special Branch interrogators used their residency status as a means to coerce them to confess to criminal offenses. One detainee’s wife told Human Rights Watch:
Even now in Kamunting, they keep threatening that he will be sent back to Indon [Indonesia]. . . . They say you must cooperate or we will send you back. My children are Malaysian: what will happen if he is sent back? What will happen over there? Are you going to split us up? And what if he is detained there? My husband is being threatened in that way.90
According to one detainee, the interrogation officers claimed that they could change a detainee’s immigration status with a single phone call:
One top official was waiting for me in the interrogation room, along with the six other men who usually question me. His face looked so angry, he spoke very loud, and he tried to threaten and intimidate me. He told me if I didn’t cooperate, he would send me back to Indonesia, my immigration card would be taken away, my work permit would be cancelled, my belongings would be confiscated, and all my children would be sent back to Indonesia.
At that moment he ordered his man to contact the immigration registration officer to cancel my entry permit and also to withdraw the I/C card that I have had for 18 years in Malaysia. I did not know if he meant with what he said or he only tried to threaten and intimidate me. All I knew was that they looked very angry and were not satisfied with my answer. Since then, I found myself being treated very meanly and inhumanely. Even the door guard did not want to open the door for me to go to the bathroom, which lasted for several days.
After that incident, they did not call me for a daily meeting for ten days. They let me stay in a very hot room all night and all day, with no mattress, pillow, nor blanket, and no more mosquito repellent, which they used to give me.91
Humiliating and degrading treatment
Interrogations often took place under conditions designed to humiliate the detainees. Interrogators forced detainees to strip to their underwear before questioning began. In at least one instance, a detainee was forced to urinate in front of the interrogators.92 One detainee was forced to masturbate, and later made to insult himself:
I was forced to masturbate and imagine making love with a JI lady. If I refused, they threatened to pull my fingernails.
I was forced to lift a 20-litre dustbin filled with waste, cigarette butts and dust. Then [they] forced me to put my face into the dustbin and inhale the cigarette dust and [was] forced to say, “I am stupid” on numerous occasions.93
Interrogators also asked questions clearly meant to demean and intimidate the detainees, including questions about the detainees’ sex life, and about the adequacy of their sexual performance.94 Within Malaysia’s socially conservative Muslim society, discussions of such issues are extremely invasive.
According to one detainee:
They asked irrelevant questions, such as, “How do you have sex with your wife? Did you lick you wife’s ass? How long do you last when you have sex with your wife?”95
Others faced similar obscene and humiliating questions:
They asked irrelevant and obscene questions of how I carry out sexual relationship with my wife. When I refused to answer, they assaulted me.96
Many detainees also reported continually being asked irrelevant political questions, including questions about former Deputy Prime Minister Anwar Ibrahim, the political viability of PAS, and about connections to former KeADILan detainees. Detainees were asked which politicians they had voted for in the past, and what they thought about then-Prime Minister Mahathir’s stewardship, and they were taunted about what interrogators said was the failure and impending political death of the opposition KeADILan party.97
As with the KeADILan detainees, Anwar was a particular fixation for Special Branch interrogators:
We were asked questions not relevant to the arrest, including the wrongdoing of Anwar Ibrahim. Interrogating Officers said that the Special Branch have a shelf of reports about the wrongdoing of Anwar. They also said that before the case [Anwar’s trial on sodomy and corruption], numerous reports were made against Anwar.98
Mohamad Iqbal was subjected to similar commentary by the Special Branch:
They told me that Anwar Ibrahim is a sex maniac and a prostitute. [They said that ] he has been a prostitute for several men. They also said that he is a foreign agent. . . .99
Special Branch interrogators also sought to convince detainees that UMNO was the only viable political party in Malaysia, constantly disparaging UMNO’s political rivals. Several detainees noted that both KeADILan and PAS were regular targets. “They . . . said KeADILan will die in the next election, just like PAS,” one detainee noted in an affidavit.100
Another detainee told of being urged to join UMNO:
They asked me which political party I support and talked about the wrongdoing of PAS spiritual leader Nik Aziz. They influenced me to be an UMNO member and support UMNO when released from detention.101
Many KeADILan detainees, arrested on charges of planning to use violence to overthrow the government, reported being subjected to the same irrelevant questions and statements about their political background and activities.102 The use of such tactics calls into question the motivations of the Special Branch in detaining these men, and raises the possibility that the motivation for the arrests may have been political instead of security related.
The Special Branch interrogators also went to some lengths to keep ISA detainees, many of whom have devout religious beliefs, from seeking solace through religious practice. The authorities used the detainees’ sensitivity to religious issues as a weakness to abuse and humiliate them.
This abuse took two forms: denying detainees the ability to fulfill even some of the fundamental tenets of Islam, and openly insulting or degrading their religious practices.
During the first sixty days of detention, detainees were not allowed to have a copy of the Quran for weeks at a time. On various occasions, individual detainees were not told the time of the call to prayer, were not allowed to make ablutions in preparation for prayer, were not given proper dress for prayer, and were not told the direction of Mecca. During the time that they were held incommunicado, detainees were denied access to religious counsel. Some detainees were also forced to shave their beards when they were sent to Kamunting for the first time.103 According to one detainee:
[My] request to borrow and read the Quran was denied, and only during the last week of detention [was I given a copy of the Quran].104
The U.N. Human Rights Committee has made it clear that individuals do not surrender their right to practice their religious beliefs merely because they have been incarcerated:
Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.105
Refusing to give ISA detainees a copy of the Quran or denying them the opportunity to wash before prayer cannot be justified on security grounds.
The U.N. Standard Minimum Rules on the Treatment of Prisoners also guarantees the right of detainees to practice their religion while in detention, and specifies that religious texts should be made available and that visitations by religious counselors should be allowed.106
Interrogators also made sexual remarks related to Islam. One detainee was lectured on the appropriateness of sodomizing his wife under Islam, and others were told that they should question their beliefs in other ways.107 Prison officials tried to deny the detainees’ Muslim identity. Detainees were forced to sing Hindi songs; and one guard told a detainee, “You are not a Muslim, but a Hindu Indian.”108
Coerced and false confessions
International law prohibits a person from being compelled to testify against oneself or to confess guilt.109 Under the pressure of coercive interrogation techniques, many detainees made confessions that they would later recant. In several cases, detainees claimed that they had made false confessions to appease their interrogators. Detainees claimed that in some cases they simply signed on to confessions prepared by their interrogators.
In their joint affidavit, detainees also complained of the rewriting of statements by Special Branch interrogators. According to one detainee:
My statement was doctored by Special Branch. During the representation with the Advisory Board, the Special Branch doctored the statement by stating that I “have the knowledge of the establishment of the Regional Islamic Nation and it is the struggle of Jemaah Islamiyah. The struggle is to topple the Malaysian Government through militant means,” but I do not have any knowledge of it. The Chairman of the Advisory Board then said, “Even though you do not know but your top leadership knows,” and when I asked why the statement states that I have that knowledge, he kept quiet.110
The detainees further claimed that the Special Branch fabricated allegations against them to include in their original detention orders:
The facts in the detention order and reasons for detention were engineered. We have no knowledge and have never been asked by our interrogators about the establishment of Regional Islamic Nation through militant means. The facts were engineered by Special Branch, stating that they received the information from Ministry of Home Affairs.111
Conditions of Detention
Conditions of detention during the initial sixty-day detention period are notoriously bad. The current group of ISA detainees was held in solitary confinement, in small cells that lacked windows and even the most basic bedding. Detainees were denied visits from family members for the first several weeks of their detention. Access to legal counsel is usually denied for the entirety of the first sixty days.
Special branch officers have treated the detainees abusively, repeatedly insulting detainees and subjecting them to questions and comments about their sexual habits. Detainees also have been subjected to intensive interrogation and regularly asked irrelevant and demeaning questions during interrogation sessions.
These conditions, most of which in and of themselves violate international standards, also create an environment ripe for other forms of abuse. Extended incommunicado detention ensures that Special Branch interrogators have unfettered access to the detainees, and that any ill-treatment goes unreported, at least initially. This may encourage interrogators and prison officials to act with a freer hand, knowing that wounds heal and memories dim.
Extended incommunicado detention is also part of a broader coercive environment. Forcing detainees to spend several weeks alone, having contact only with prison guards and special branch interrogators, significantly weakens their resolve and allows interrogators to more successfully exert their will over them.
One former detainee told Human Rights Watch:
I was in solitary confinement. It was about an 8x10 [foot] room, with no windows. There was no furniture save for a bunk, and no pillows. The bathroom was down the hall, and we had to ask to use it. I knew the day, roughly, but not the time. I kept track of the days by meals and prayer times.112
The men had to contend with Malaysia’s sweltering heat in their cells, which were often infested with mosquitoes. In a long handwritten affidavit written while in immigration detention, Muslim cleric Mohamad Iqbal described similar conditions during his ISA detention:
[The prison officials] gave me two pairs of blue uniforms. They also gave me a toothbrush and toothpaste, soap, detergent, a plate, and a cup. After that they took me to a room, which was very hot. There was also no window and a 100-watt light bulb was on 24 hours a day.
The room had two beds, and was about 8x10 feet. There was no mattress, no pillow, and no bedclothes. Near the ceiling there was a machine that looked like an air conditioner. Sometimes it made the room temperature very cold, but sometimes it also made the room very hot. There was a hole for air circulation placed near the floor. This hole allowed many mosquitoes to enter the room at night. The room was never exposed to the sunlight. Living in such a room for 54 days made me feel like I was living underground.
For the first ten days I slept on the plywood, as they did not give me a mattress or a pillow. For ten days after that, they handed me a mattress, a pillow, and a blanket, but after that they took them away again for a month. They brought them back in for the last four days of my stay. During my fifty-four days there they moved me several times to another room they referred to as “the haunted room.” They put me there for ten days and then moved me to another room within the same block.113
Current detainees’ descriptions of their conditions of detention closely matched those of earlier, political detainees. According to one former political detainee:
I was finally pushed through a door and when my blindfold was removed and my eyes adjusted to the light I saw that I was in a cell of approximately 8 feet square [probably meaning 8x8 feet, or sixty-four square feet]. There were two wooden platforms placed against the cell walls, one on each side. There was no other furniture of any sort. The cell had no window and ventilation was through two tiny ratholes at the bottom of one wall. There was no bedding or blankets. . . . There was a small thin towel on one platform and beside it was a plastic bowl. The room was brightly lit by an overhead light that was never switched off throughout my stay there.
The glare of the light could not be avoided from any position in that small cell. There was an old vent on one wall that made a continuous horrendous grating sound. This vent did not seem to be moving any air about and was also never switched off. No sound from outside came through the door. The cell was literally soundproof though at times I thought I heard the sound of coughing and heavy breathing as I was led out of the cell to various other places.114
These detention conditions fall far short of international standards. The U.N. Standard Minimum Rules for the Treatment of Prisoners requires that prisoners be provided with suitable light, windows, and bedding.115 Article 10 of the Standard Minimum Rules requires that “all accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climactic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”116 Article 19 requires that all prisoners be issued “a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.”117 The conditions that ISA detainees live under fall far short of these basic standards.
In addition to the conditions described above, ISA detainees being held for alleged terrorist activity have been subjected to daily intimidation and abuse by prison officials and Special Branch interrogators. Special Branch officials openly curse and insult detainees, and regularly force detainees to take off their clothes in front of them. Special Branch officers also force detainees to perform menial tasks for them; some detainees have been forced to make tea for Special Branch officers. Several detainees claimed that they had been told to massage their interrogators.118
Some detainees were denied medical assistance:
[I was] not given assistance for medical attention when I was screaming for help due to severe pain. I thought I was going to die. My body was sweating because of the pain. They gave assistance half an hour later, but they didn’t send me to the hospital. They only took me to a room and gave me some warm water. I was actually having a gall stone.119
Under the Standard Minimum Rules for the Treatment of Prisoners, prison health officials are required to respond to requests for medical treatment from prisoners, and prisoners in need of specialist treatment should be taken to specialist facilities outside of the prison.120
Many of the detainees described long-term solitary confinement in such conditions as a form of “mental torture.”121 While solitary confinement is not forbidden under international law, prolonged solitary confinement has been recognized by the U.N. Human Rights Committee and others as a form of ill-treatment prohibited by the ICCPR.122 The Committee against Torture also criticized the use of incommunicado detention.123
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[59] Human Rights Watch interview with TY, Kuala Lumpur, December 2003.
[60] Human Rights Watch interviews with family members of ISA detainees, December 2003.
[61] Human Rights Watch interview with AZ, Kuala Lumpur, December 2003.
[62] Human Rights Watch interview with RR, Kuala Lumpur, December 2003.
[63] For a brief account of the role of that Special Branch played in the Anwar affair, see Thomas Fuller, “Anwar’s Trial Brings Tactics of Malaysia’s ‘Special’ Police to Light,” International Herald Tribune, November 13, 1998.
[64] See S. Husin Ali, Two Faces: Detention without Trial, (INSAN: Kuala Lumpur, 1996); Dr. Tan Seng Giaw, “The First 60 Days: the 27 October 1987 ISA Arrests,” Democratic Action Party, June 1989.
[65] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit signed by 31 current ISA detainees, on file with Human Rights Watch.
[66] Written complaint of Mohidin bin Shari, on file with Human Rights Watch.
[67] Human Rights Watch interview with YC, Kuala Lumpur, December 2003.
[68] Human Rights Watch interview with AZ, Kuala Lumpur, December 2003.
[69] Human Rights Watch interview with VG, Kuala Lumpur, December 2003.
[70] Human Rights Watch interview with BD, Kuala Lumpur, December 2003.
[71] Human Rights Watch interview with YC, Kuala Lumpur, December 2003.
[72] Human Rights Watch interview with EN, Kuala Lumpur, December 2003.
[73] There were some isolated cases of physical abuse: shortly before being released, ISA detainees Tian Chua and Hishamuddin Rais reported being assaulted in detention, and filed a report with SUHAKAM urging them to take action. “ISA detainees assaulted: KeADILan wants answers,” Malaysiakini, May 10, 2003; Beh Lih Yi, “Suhakam to probe ex-ISA detainees’ complaint of assault,” Malaysiakini, July 1, 2003.
[74] One former political detainee told Human Rights Watch that there was in fact a different standard in terms of physical abuse of ISA detainees, and that non-political detainees were subject to worse treatment: “They said if I was not a ‘political’ detainee, I would be subject to physical abuse,” he said. Human Rights Watch interview, Kuala Lumpur, December 2003.
[75] Human Rights Watch interview with former ISA detainee XY, detained for political activity, Kuala Lumpur, December 2003.
[76] Interview with ex-ISA detainee detained on anti-terrorism grounds, December 2003.
[77] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[78] For example, in its 2001 Country Report, the US government criticized Burma for its practice of “routinely subject[ing] detainees to harsh interrogation techniques designed to intimidate and disorient,” and listed such techniques as sleep deprivation, food deprivation, and being forced to remain in uncomfortable positions for long periods of time. U.S. State Department, 2001 Country Reports on Human Rights Practices (Burma), Sect. 1(c). In 2002, the U.S. government cited Iran for “numerous credible reports that security forces . . . continue . . . to torture detainees,” and noted especially the use of sleep deprivation and “prolonged and incommunicado detention.” U.S. State Department, 2002 Country Reports on Human Rights Practices (Iran), Sect. 1(c) and (d). Saudi Arabia, Tunisia, and Turkey, among others, were also cited by the U.S. government for the use of sleep deprivation as an interrogation technique. See generally U.S. State Department, Country Reports on Human Rights Practices.
[79] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[80] Ibid.
[81] Human Rights Watch interview with NK, Kuala Lumpur, December 2003.
[82] Human Rights Watch interview with JS, Kuala Lumpur, December 2003.
[83] Human Rights Watch interview with ex-ISA detainee TY, Kuala Lumpur, December 2003.
[84] Ibid.
[85] Ibid.
[86] Human Rights Watch interviews, December 2003.
[87] Human Rights Watch interview with NK, Kuala Lumpur, December 2003.
[88] Affidavit of Mohidin b. Shari, on file with Human Rights Watch.
[89] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[90] Human Rights Watch interview with RW, Kuala Lumpur, December 2003.
[91] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[92] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[93] Complaint by Sulaiman bin Suramin, affidavit on file with Human Rights Watch.
[94] Written complaints of Sulaiman b. Suramin and Mohidin b. Shari, on file with Human Rights Watch.
[95] Ibid.
[96] Ibid.
[97] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[98] Ibid.
[99] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[100] Affidavit of Mat Sah bin Mohamad Satray, on file with Human Rights Watch.
[101] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[102] See Fritz, Unjust Order, pp. 54-5.
[103] Ibid.
[104] Ibid.
[105] The right to freedom of thought, conscience and religion (Art. 18), 30/07/93, CCPR General Comment 22. (General Comments), Forty-eighth session, 1993, paragraph 8.
[106] U.N. Standard Minimum Rules for the Treatment of Prisoners, articles 41 and 42.
[107] The detainees made reference to the Islamic law doctrine of sherk, which means apostasy.
[108] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[109] See, e.g. ICCPR, article 14(3)(g); Convention against Torture, article 15.
[110] Ibid.
[111] Ibid.
[112] Human Rights Watch interview with TY, Kuala Lumpur, December 2003.
[113] Affidavit of Mohamad Iqbal, on file with Human Rights Watch.
[114] Dr. Munawar Ahmad Anees, Statutory Declaration, November 7, 1998.
[115] U.N. Standard Minimum Rules for the Treatment of Prisoners, articles 10, 11, and 19.
[116] U.N. Standard Minimum Rules, article 10.
[117] U.N. Standard Minimum Rules, article 19.
[118] Affidavit.
[119] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[120] Standard Minimum Rules, articles 10, 11, and 19.
[121] “Violation of Human Rights by Malaysian Police and Ministry of Home Affairs,” affidavit.
[122] Article 7 of the ICCPR prohibits “torture or other cruel, inhuman, or degrading treatment or punishment.” “The Committee notes that prolonged solitary confinement of the detainee or imprisoned person may amount to acts prohibited by Article 7,” General Comment 20, HRI/GEN/1/Rev. 1 (1994), p. 30, paragraph 11, in Ingelse, The UN Committee against Torture: An Assessment, Kluwer Law International, 2001, p. 256. See also Nigel S. Rodley, The Treatment of Prisoners Under International Law, Oxford University Press, 1999, p. 294.
[123] See Chris Ingelse, The UN Committee against Torture: An Assessment, (Kluwer Law International, 2001), p. 256.
