Opinion; Subjects: MALAYSIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.19-01543(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-third session, 19–23 November 2018
Opinion No. 90/2018 concerning Mohd Redzuan Bin Saibon (Malaysia)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 6 August 2018 the
Working Group transmitted to the Government of Malaysia a communication concerning
Mohd Redzuan Bin Saibon. The Government replied to the communication on 4 October
2018. Malaysia is not a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2018/90
General Assembly
Distr.: General
31 January 2019
Original: English
A/HRC/WGAD/2018/90
2
Submissions
Communication from the source
4.
Mohd Redzuan Bin Saibon is a Malaysian national. He was arrested on 22 February
2000, at the age of 17, for possession of cannabis. At the time of his arrest, Mr. Redzuan
informed the police of two other locations, at which over 30 kg of cannabis was found.
Some of the cannabis was found at Mr. Redzuan’s family home. As a result, the police
arrested his entire family for investigation.
5.
According to the source, Mr. Redzuan was remanded in custody for two weeks and
charged with three separate counts under section 39B of the Dangerous Drugs Act 1952.
The source alleges that Mr. Redzuan was advised to plead guilty to the charges in return for
the release of his family members from detention. The lawyer representing Mr. Redzuan
during his trial also advised him to plead guilty to the charges.
6.
Mr. Redzuan was convicted under section 39B of the Dangerous Drugs Act 1952,
which carries a mandatory death sentence.1 However, given that he was a minor at the time
the crime was committed, he was sentenced on 9 October 2001 to detention at the pleasure
of the Yang di-Pertuan Agong (the King of Malaysia). Prior to 2001, that sentence was
provided under section 16 of the Juvenile Courts Act 1947 as an alternative to the death
penalty for minors. 2 The source submits that a sentence of detention at His Majesty’s
pleasure is indefinite as there is no maximum term of imprisonment.
7.
After Mr. Redzuan had served more than a year of his sentence, the Prison
Department assisted him in filing an appeal against his sentence to the Court of Appeal. He
was not represented by a lawyer or given legal advice and his appeal was subsequently
dismissed.
8.
The source reports that the Juvenile Courts Act 1947 was repealed and replaced by
the Child Act 2001, which came into force on 1 March 2001. Since the introduction of the
Child Act, detention at the pleasure of the Yang di-Pertuan Agong has been governed by
section 97 of that act. According to the source, the only possibility of release under the act
is through the mechanism outlined in section 97 (4). Section 97 provides:
Death
97 (1) A sentence of death shall not be pronounced or recorded against a person
convicted of an offence if it appears to the Court that at the time when the offence
was committed he was a child.
(2)
In lieu of a sentence of death, the Court shall order a person convicted of an
offence to be detained in a prison during the pleasure of–
(a)
the Yang di-Pertuan Agong if the offence was committed in the
Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or
(b)
the Ruler or the Yang di-Pertua Negeri, if the offence was committed
in the State.
1 The source notes that there is no alternative sentence for a conviction under section 39B of the
Dangerous Drugs Act 1952 other than the death penalty. However, minors are sentenced to detention
in lieu of the death penalty at the pleasure of the Yang di-Pertuan Agong.
2 The source has provided an extract of section 16 of the repealed Juvenile Courts Act 1947, which
provided:
“Sentence of death shall not be pronounced or recorded against a person convicted of an offence if it
appears to the Court that at the time when the offence was committed he was a juvenile: but in lieu
thereof the Court shall order him to be detained during the pleasure of the Yang di-Pertuan Agong if
the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of
Labuan or during the pleasure of the State Authority if the offence was committed in the State, and, if
so ordered, he shall, notwithstanding anything in the other provisions of this Act, be liable to be
detained in such place and under such conditions as the Yang di-Pertuan Agong or the State Authority
may direct, and whilst so detained shall be deemed to be in legal custody.”
A/HRC/WGAD/2018/90
3
(3)
If the Court makes an order under subsection (2), that person shall,
notwithstanding anything in this Act–
(a)
be liable to be detained in such prison and under such conditions as
the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct;
and
(b)
while so detained, be deemed to be in lawful custody.
(4)
If a person is ordered to be detained at a prison under subsection (2), the
Board of Visiting Justices for that prison–
(a)
shall review that person’s case at least once a year; and
(b)
may recommend to the Yang di-Pertuan Agong or the Ruler or the
Yang di-Pertua Negeri on the early release or further detention of that person,
and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may
thereupon order him to be released or further detained, as the case may be.
9.
The source reports that the Board of Visiting Justices is appointed under section 64
of the Prison Act 1995, and that the duties and role of the Board are set out in sections 65
and 66 of that act. According to the source, there is no publicly available information on the
Board of Visiting Justices and the framework for its operations. The source submits that,
despite the existence of the provisions, Mr. Redzuan’s case was not subject to annual
review and he did not meet with any representative from the Board of Visiting Justices
prior to 2013.
10.
The source also reports that Mr. Redzuan has been detained indefinitely since being
sentenced on 9 October 2001, with no judicial review of his sentence and no possibility of
parole. The source states that Mr. Redzuan filed an appeal for clemency through the Prison
Department, but the appeal went unanswered. Mr. Redzuan has now been in detention for
more than 18 years since his arrest on 22 February 2000.
11.
According to the source, a complaint was filed on behalf of Mr. Redzuan’s family
with the Human Rights Commission of Malaysia seeking further investigation of the case.
In particular, the Commission was requested to investigate the cause of Mr. Redzuan’s
prolonged detention and the failure to accord him the annual review required under section
97 (4) of the Child Act 2001. Following a visit by the Human Rights Commission to Mr.
Redzuan on 11 July 2018, the Prison Department verbally informed the Commission that
his case had been sent to the Pardons Board for a pardon application.
Submissions
12.
The source acknowledges that Mr. Redzuan’s sentence was imposed in accordance
with the laws and legislative framework of Malaysia applicable at the time. However, the
source raises the following concerns relating to Mr. Redzuan’s detention, conviction and
sentencing:
(a)
Mr. Redzuan was assaulted by a police officer during the early phase of his
detention when questioned about his employer;
(b)
The police officer in charge of Mr. Redzuan’s case warned him to plead
guilty to the charges to secure the freedom of his family members;
(c)
Mr. Redzuan was not provided adequate legal representation or advice during
his trial at the High Court or during his subsequent appeal at the Court of Appeal;
(d)
Between 2001 and 2013, Mr. Redzuan was not afforded annual reviews of his
case, as provided for under section 97 (4) of the Child Act 2001. The Board of Visiting
Justices only reviewed his case in 2013, 2017 and 2018. During those reviews, Mr.
Redzuan was only asked about the conditions of his detention and his aspirations following
his release;
(e)
The sentencing methods under section 97 of the Child Act 2001 result in
indefinite detention and constitute psychological torture, in violation of article 37 of the
Convention on the Rights of the Child.
A/HRC/WGAD/2018/90
4
Response from the Government
13.
On 6 August 2018, the Working Group transmitted the allegations from the source
to the Government under its regular communication procedure. The Working Group
requested the Government to provide detailed information by 5 October 2018 about the
current situation of Mr. Redzuan. The Working Group also requested the Government to
clarify the legal provisions justifying his continued detention and its compatibility with the
obligations of Malaysia under international human rights law.
14.
The Government submitted its response on 4 October 2018. In its response, the
Government states that Mr. Redzuan was convicted on three separate charges of trafficking
dangerous drugs under section 39B of the Dangerous Drugs Act 1952.3
15.
According to the Government, Mr. Redzuan pleaded guilty to all three offences. On
22 August 2001, the High Court of Malaysia sentenced him to detention in accordance with
section 16 of the Juvenile Courts Act 1947. Mr. Redzuan is currently detained at Sungai
Buloh Prison, where he is still serving the sentence imposed by the High Court in 2001 for
drug trafficking.
16.
The Government states that Mr. Redzuan was accorded reviews by the Board of
Visiting Justices in 2013, 2017 and 2018. In addition, Mr. Redzuan made three pardon
applications to the Pardons Board, in 2006, 2011 and 2017, all of which were approved.
Throughout his detention, Mr. Redzuan did not make a request for annual review of his
case, nor did he challenge the decisions by the Pardons Board.
17.
In relation to the allegation that Mr. Redzuan was assaulted early in his detention,
the Government states that the Royal Malaysia Police strictly adheres to a standard
operating procedure that prohibits torture and all forms of ill-treatment. Information on the
prohibition of force and ill-treatment and on adherence to human rights standards has been
incorporated in the training of police personnel. The Government stresses that violations of
human rights, such as torture and ill-treatment, are best identified and redressed during
domestic proceedings. In that context, it is questionable why Mr. Redzuan did not raise the
alleged assault during his court proceedings, when he could have availed himself of
appropriate remedies. The Government underlines that there are no provisions in domestic
law that decriminalize torture or ill-treatment during detention, nor does the law provide
impunity for perpetrators.
18.
In relation to the allegation of inadequate legal representation, the Government
states that Mr. Redzuan was charged in the High Court with three separate charges that
carry a mandatory death sentence. Mr. Redzuan was under 18 years of age when he
committed the offences and was considered a juvenile. Mr. Redzuan pleaded guilty and the
Court was satisfied that he understood the nature and consequences of his guilty plea. His
legal counsel made no mitigation plea and relied entirely on section 16 of the Juvenile
Courts Act 1947, which provided that a juvenile shall not be sentenced to death. All due
process requirements were met. The Government submits that it is inappropriate for Mr.
Redzuan to claim that he was not provided with adequate legal representation and advice.
19.
The Government recalls that article 5 of the Federal Constitution of Malaysia sets
out the fundamental liberties of all persons in Malaysia, including the right to life and
personal liberty. However, there are exceptions provided for in legislation, including in the
Dangerous Drugs Act 1952, which empowers law enforcement agencies to detain a person
when there have been infringements of the law.
20.
In relation to the sentencing methods under the Child Act 2001, the Government
acknowledges that it is obliged under article 3 (1) of the Convention on the Rights of the
Child to ensure that the best interests of the child are a primary consideration. The
Government refers to provisions of the Convention, including articles 40 (2) (a) and (b), as
“fundamental procedural rights of children in the administration of criminal justice”. In
addition, the Government refers to provisions in the Child Act 2001 that require the Court
3 The offences related to: (a) cannabis (2,761.7 grams) found in Mr. Redzuan’s possession; (b)
cannabis (18,114.1 grams) found in his house; and (c) cannabis (15,106 grams) found in his house.
A/HRC/WGAD/2018/90
5
for Children to treat the best interests of the child as paramount, and underlines that the
criminal procedure adopted by the Court is designed to provide child offenders with a fair
trial.
21.
The Government refers to article 37 of the Convention on the Rights of the Child,
which sets out the circumstances in which a child may be deprived of liberty. While the
Government has placed a reservation on that article, it still ensures that official policies and
laws are in line with international obligations and the domestic legal framework. Section 97
(2) of the Child Act 2001 empowers the court, after convicting a person who was a child at
the time of the commission of an offence punishable with death, to make an alternative
order. The power to make such an order is no less than the power of the court to impose a
sentence on a child convict, although it is in a different form in the present case (namely,
sentencing a child to the care of the Yang di-Pertuan Agong, the Ruler or the Yang di-
Pertua Negeri, depending on where the offence was committed). The detention is not
unconstitutional, as it is the court that makes the order following its conviction order.
22.
In conclusion, the Government emphasizes that the actions taken by the authorities
against Mr. Redzuan were conducted pursuant to domestic law, while observing the
safeguards provided by law. Measures were taken against Mr. Redzuan in light of the
Government’s sovereign responsibility within its territory, as recognized by international
law, to protect national security, public order, morals, rights and the freedoms of others.
Mr. Redzuan’s detention was not arbitrary. The laws of Malaysia ensure due process for
detained persons, and detention is only sustained when an individual remains at high risk of
recidivism.
Further comments from the source
23.
On 11 October 2018, the Government’s response was sent to the source for further
comment. The source responded on 16 October 2018. In its response, the source referred to
the Government’s submission that Mr. Redzuan had made three pardon applications to the
Pardons Board, in 2006, 2011 and 2017, and that all of those applications had been
approved. The source emphasizes that that cannot be correct because, if the applications
had been successful, Mr. Redzuan would no longer be in indefinite detention at Sungai
Buloh Prison.
24.
In addition, the source refers to the Government’s submission that, throughout Mr.
Redzuan’s detention, there was no request for annual review of his case, nor did he
challenge the decisions of the Pardons Board. The source submits that the Government’s
response fails to address the fact that section 97 (4) of the Child Act 2001 was not applied
to Mr. Redzuan. As the source points out, section 97 (4) provides for a mandatory annual
review by the State. The source considers that that position is substantiated by the absence
of any additional provisions allowing those detained under section 97 (2) of the Child Act4
to file an application for annual review under section 97 (4) of the act. Any other
interpretation would result in absurdity, as a juvenile offender sentenced under section 97
(2) would be expected to have the capacity to exercise his or her rights in full under the
Child Act and to file an application for annual review of his or her case through a non-
existent process.
25.
The source reiterates that Mr. Redzuan has already served more than 18 years of his
indefinite sentence, coming close to the limitation for the sentence of life imprisonment in
Malaysia. According to the source, life imprisonment in Malaysia usually involves a
detention period of no more than 30 years. In practice it would usually be a shorter period,
as good behaviour can result in early parole.
4 According to the source, section 97 (2) of the Child Act 2001 was challenged in the case of Kok Wah
Kuan v. The Prison Director of Kajang. The Court of Appeal ruled that the provision was
unconstitutional. That decision was reversed by the Federal Court of Malaysia on the ground that the
separation of powers doctrine is not a provision of the Malaysian Constitution, and the act did not
violate the Constitution for having consigned the Federal Court’s judicial power to determine the
measure of sentence to be served to the executive. The source provided a copy of the Federal Court’s
judgment, as well as a copy of the Child Act 2001 (as at 1 February 2018).
A/HRC/WGAD/2018/90
6
26.
In relation to the adequacy of Mr. Redzuan’s legal representation at trial, the source
states that Mr. Redzuan was not informed of the full repercussions of his lawyer’s decision
to rely on section 16 of the Juvenile Courts Act 1947. In addition, the source alleges that the
lawyer, who was appointed by the court, disregarded the allegation that Mr. Redzuan had
been assaulted.
27.
Finally, the source takes note of the Government’s submissions regarding the
allegation that Mr. Redzuan was assaulted by a police officer during the early phase of his
detention. According to the source, the Government’s stance is untenable, because statutory
bodies, such as the Human Rights Commission of Malaysia and the Enforcement Agency
Integrity Commission, have conducted extensive investigations in the past and have found
evidence of torture and police brutality inflicted by the Royal Malaysia Police.
Discussion
28.
The Working Group thanks the source and the Government for their submissions.
29.
In determining whether Mr. Redzuan’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations (A/HRC/19/57, para. 68).
30.
In the present case, the source alleges that Mr. Redzuan is being detained
indefinitely pursuant to section 97 (2) of the Child Act 2001. The source submits that there
is no statutory limitation on the length of detention under that provision and that Mr.
Redzuan is being held at the pleasure of the Yang di-Pertuan Agong, a sentence that was
imposed in lieu of the death penalty. Moreover, the source argues that the only mechanism
for Mr. Redzuan’s release under the act, namely mandatory annual review by the Board of
Visiting Justices under section 97 (4), was not applied in the present case.
31.
In considering whether Mr. Redzuan’s ongoing detention is arbitrary, the Working
Group takes note of the views of the Committee on the Rights of the Child. In its most
recent concluding observations on Malaysia, in 2007, the Committee expressed concern
regarding the deprivation of liberty of minors at the pleasure of the Yang di-Pertuan Agong
or the Ruler or the Yang di-Pertua Negeri. The sentencing regime was set out in the now
repealed Juvenile Courts Act 1947 and has been retained in the current Child Act 2001. The
Committee considered that such a sentence results in the undetermined length of
deprivation, causing problems in terms of the development of the child, including her/his
recovery and social reintegration (CRC/C/MYS/CO/1, para. 103). The Working Group
considers that the Committee’s observations remain highly relevant, given that they were
made after the Child Act came into force in 2001, and the act itself clearly still results in the
indeterminate detention of children, as in the present case.
32.
In addition, as the Working Group has previously stated, the question of whether
detention is arbitrary must be interpreted broadly to include elements of inappropriateness,
injustice, lack of predictability and due process of law.5 The Working Group considers that
Mr. Redzuan’s detention manifests those elements, particularly in its lack of predictability
and due process of law. Mr. Redzuan has been detained for over 18 years since his arrest on
22 February 2000. While the Child Act 2001 improved on the Juvenile Courts Act 1947 by
introducing mandatory annual review of a minor’s detention by the Board of Visiting
5 Deliberation No. 9 concerning the definition and scope of arbitrary deprivation of liberty under
customary international law, A/HRC/22/44, para. 61. While the Working Group was referring to the
arbitrariness of detention under article 9 of the International Covenant on Civil and Political Rights
(to which Malaysia is not a State party), the reasoning is equally applicable to the prohibition of
arbitrary detention under article 9 of the Universal Declaration of Human Rights.
A/HRC/WGAD/2018/90
7
Justices under section 97 (4),6 that provision has not been applied to Mr. Redzuan. The
Government confirmed that Mr. Redzuan’s case had been reviewed by the Board of
Visiting Justices in 2013, 2017 and 2018, but offered no explanation as to why he was not
afforded an earlier review, in compliance with the statutory requirements. The Working
Group notes that there appears to be no requirement under section 97 (4) that the detainee
apply for review.
33.
As a result, Mr. Redzuan had no notice of the length of his detention, and was not
afforded a review of whether the circumstances that initially justified his detention had
changed7 over the 12 years from the time of his sentencing in 2001 until his first annual
review by the Board of Visiting Justices in 2013. That is particularly serious, given that
section 97 (4) (a) of the Child Act 2001 requires the Board to review Mr. Redzuan’s
detention “at least once a year”. The Government failed to ensure that the procedure
required by national law was observed in the present case. The Working Group considers
that the reviews of Mr. Redzuan’s case in 2013, 2017 and 2018 cannot remedy this serious
violation. There is no way of knowing whether Mr. Redzuan would have been released
earlier had his detention been subject to the annual review required under section 97 (4) of
the Child Act. Moreover, as the source alleges, and the Government did not deny, Mr.
Redzuan was only asked about the conditions of his detention and his aspirations following
his release during the three reviews, and the Board does not appear to have made any
serious attempt to consider his early release. In the view of the Working Group, that line of
questioning by the Board did not amount to a substantive review of the ongoing necessity
of Mr. Redzuan’s detention, but merely consisted of an enquiry into his conditions of
detention.
34.
The Working Group finds that Mr. Redzuan has been detained without a legal basis,
because the means of determining whether his detention remains appropriate and in
accordance with the Child Act 2001, namely mandatory annual review by the Board of
Visiting Justices, was not applied throughout his detention. Moreover, the Government did
not challenge the source’s allegation that Mr. Redzuan’s situation was made worse by the
fact that his attempts to seek release through other mechanisms, such as an appeal for
clemency, received no response from the authorities. Accordingly, Mr. Redzuan’s
deprivation of liberty violates article 9 of the Universal Declaration of Human Rights and is
arbitrary under category I.
35.
In addition, the source raises concerns relating to Mr. Redzuan’s detention,
conviction and sentencing, including that: (a) Mr. Redzuan was assaulted during his
detention; (b) Mr. Redzuan was warned that he must plead guilty to secure the freedom of
his family members; and (c) Mr. Redzuan was not provided with adequate legal
representation or advice during his trial at the High Court and during his subsequent appeal
to the Court of Appeal. The Working Group will consider those allegations in determining
whether Mr. Redzuan was afforded a fair trial.
36.
The source alleges that Mr. Redzuan was assaulted by a police officer during the
early phase of his detention in order to obtain information regarding his employer. In its
response, the Government stated that the Royal Malaysia Police strictly adhered to
procedures prohibiting torture and ill-treatment, and observed that Mr. Redzuan had not
raised the alleged assault during his trial proceedings, when he could have sought
appropriate remedies.
37.
While the Working Group’s mandate extends to alleged ill-treatment that negatively
affects the ability of detainees to prepare their defence as well as their chances of a fair
6 According to section 97 (4) (a) of the Child Act 2001, the annual reviews are mandatory, as it is
stated in that provision that the Board of Visiting Justices “shall” review the case “at least once a
year”.
7 The Working Group recalls that, in the United Nations Basic Principles and Guidelines on Remedies
and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a
Court, detention that was lawful at its inception may become unlawful and arbitrary because the
circumstances that initially justified the detention have changed (A/HRC/30/37, para. 12).
A/HRC/WGAD/2018/90
8
trial,8 the Working Group is unable to make such a finding in the present case. In the view
of the Working Group, the source did not provide sufficient information to support a prima
facie case, including details on the nature of the alleged assault, when and where it
allegedly occurred and how it related to Mr. Redzuan’s employer. The Working Group
requested that the source provide further details in relation to the alleged assault, but the
source was unable to obtain further information due to the lapse of time since the incident
and because of the fact that the police officer in charge of Mr. Redzuan’s case had since
retired from service. In reaching that conclusion, the Working Group takes note of its own
previous findings that torture and ill-treatment is common in police stations in Malaysia
(A/HRC/16/47/Add.2, para. 50), as well as the source’s submission that bodies such as the
Human Rights Commission of Malaysia and the Enforcement Agency Integrity
Commission have found evidence of police brutality in the past. However, those findings
cannot substitute for specific details relating to the alleged assault of Mr. Redzuan.
38.
Further, the source alleges that the police officer in charge of Mr. Redzuan’s case
warned him to plead guilty to his charges in order to secure the freedom of his family
members. According to the source, some of the cannabis was found at Mr. Redzuan’s
family home and his family members were arrested for investigation, although they were
subsequently released without charge. The Working Group considers that the source has
provided sufficient information in relation to the allegation, including that Mr. Redzuan
pleaded guilty to the charges against him. The Working Group notes that, although it had
the opportunity to do so, the Government did not address that allegation in its submission.
Accordingly, the Working Group finds that the source has established a prima facie
violation, which has not been rebutted by the Government, of Mr. Redzuan’s right not to be
compelled to confess guilt, under article 40 (2) (b) (iv) of the Convention on the Rights of
the Child. In its general comment No. 10 (2007) on children’s rights in juvenile justice, the
Committee on the Rights of the Child stated that the term “compelled” in article 40 (2) (b)
(iv) of the Convention should be interpreted broadly and not be limited to physical force,
and that it included other means of coercion (para. 57). The Working Group considers that
the pressure allegedly applied on Mr. Redzuan to plead guilty in order to ensure the liberty
of his family members falls within the scope of that provision.
39.
Finally, the source alleges that Mr. Redzuan did not have adequate legal
representation during his trial and appeal. According to the source, Mr. Redzuan was not
informed of the repercussions of his court-appointed lawyer’s decision at trial to rely on
section 16 of the Juvenile Courts Act 1947, which provided for indeterminate detention in
lieu of the death penalty. The source also claims that Mr. Redzuan’s lawyer disregarded the
allegation that his client had been assaulted.9 Furthermore, the Prison Department assisted
Mr. Redzuan to file an appeal because he had no legal representation at that time. In its
response, the Government recalls that Mr. Redzuan’s lawyer made no mitigation plea and
relied entirely on section 16 of the Juvenile Courts Act 1947, and that due process
requirements were met. The Government did not address the source’s submissions in
relation to Mr. Redzuan’s appeal.
40.
Having considered all of the available information, the Working Group is not
convinced that Mr. Redzuan received inadequate legal representation at trial. The Working
Group has taken into account the fact that the case involved a minor who faced a serious
penalty of detention at the pleasure of the Yang di-Pertuan Agong in lieu of the death
penalty, and that he was defended by a court-appointed lawyer. However, the source did not
submit any information to suggest that Mr. Redzuan’s legal representation at trial involved
incompetence or misconduct that the court failed to remedy.10 There is no information to
8 See opinions Nos. 47/2017, para. 28, and 29/2017, para. 63, and E/CN.4/2004/3/Add.3, para. 33.
9 This is a separate claim to the allegation that Mr. Redzuan was assaulted during his detention, which
is considered earlier in the present opinion (see para. 37 above). The allegation raised here relates to
the disregard by legal counsel of Mr. Redzuan’s claim that he had been assaulted, which demonstrates
that Mr. Redzuan did not receive adequate legal representation.
10 The present case may be contrasted with opinion No. 53/2018. In that case, the accused stated at a
court hearing that he was being held incommunicado and had been subjected to physical and
A/HRC/WGAD/2018/90
9
suggest that the lawyer’s decision to rely entirely on the provisions of the Juvenile Courts
Act 1947 amounted to a failure to present an effective defence, and it may have been part of
the trial strategy or a matter of professional judgment.11 Moreover, the source noted in its
initial submission that there was no alternative sentence for any conviction under section
39B of the Dangerous Drugs Act 1952 other than the death penalty. It is therefore not clear
whether alternative defence options were available to Mr. Redzuan’s lawyer, other than
relying on the Juvenile Courts Act. Similarly, the alleged failure to inform Mr. Redzuan of
the repercussions of the decision and the disregard of Mr. Redzuan’s alleged assault are
matters between Mr. Redzuan and his lawyer, rather than manifest violations for which the
Government can be held responsible.
41.
However, the Working Group considers that the Government’s failure to ensure that
Mr. Redzuan was legally represented during his appeal amounts to a violation of his rights
under article 40 (2) (b) (ii) and (iii) of the Convention on the Rights of the Child to have
legal assistance in the presentation of his defence and to have the matter determined in the
presence of legal assistance. In addition, Mr. Redzuan’s right to appeal under article 40 (2)
(b) (v) of the Convention was rendered ineffective without the presence of legal
representation.
42.
The Working Group concludes that the case presented by the source discloses
violations of Mr. Redzuan’s right not to be compelled to confess guilt and his right to legal
representation during his appeal. As a result, Mr. Redzuan’s right to a fair trial under
articles 10 and 11 (1) of the Universal Declaration of Human Rights was also violated.
Those violations are of such gravity as to give Mr. Redzuan’s deprivation of liberty an
arbitrary character under category III.
Other issues
Review of detention under the Child Act 2001
43.
The Working Group wishes to provide its observations on an issue that it considers
to be of significance in relation to the detention of minors in Malaysia under the Child Act
2001. The issue was not raised by either the source or the Government in the present case.
Accordingly, the Working Group has not taken the issue into account in determining
whether the detention of Mr. Redzuan was arbitrary.
44.
The Working Group recalls that the Government acceded to the Convention on the
Rights of the Child in 1995, but has entered and maintains reservations in relation to certain
articles of the Convention, discussed further below. According to article 40 (2) (b) (v) of
the Convention, which is not subject to a reservation, a child who is considered to have
infringed the penal law has the right to have that decision and any measures imposed in
consequence thereof reviewed by a higher competent, independent and impartial authority
or judicial body, according to law. Section 97 (4) of the Child Act 2001 appears to be
inconsistent with that article, because the final decision on whether to release or detain a
minor remains entirely at the discretion of the Yang di-Pertuan Agong, who may decide not
to follow a recommendation for early release from the Board of Visiting Justices. As the
Head of State of Malaysia, the Yang di-Pertuan Agong is effectively a member of the
executive,12 and not a higher competent, independent and impartial authority or judicial
body.
45.
In those circumstances, the potential benefit of section 97 (4) of the Child Act 2001
as an additional means of keeping a minor’s sentence under review may be minimal. Under
psychological torture, but the public defender and the presiding judge failed to follow up on those
complaints (see paras. 71–73).
11 The source provided the High Court law report, in which it is stated that the accused’s counsel made
no mitigation plea and relied entirely on the provisions of section 16 of the Juvenile Courts Act 1947.
12 In Kok Wah Kuan v. The Prison Director of Kajang (see above), the Federal Court noted that, by
virtue of article 39 of the Malaysian Constitution, executive authority vests in the Yang di-Pertuan
Agong (para. 16 of the judgment). Similar reasoning would apply to the Ruler and the Yang di-Pertua
Negeri.
A/HRC/WGAD/2018/90
10
section 97 (2) and (4) of the act, not only is a minor detained during the pleasure of the
Yang di-Pertuan Agong; the Yang di-Pertuan Agong can also effectively overrule a Board
determination that the minor should be subject to early release.13
46.
Given that the Government noted in its response that article 40 (2) (b) (v) of the
Convention is one of the “fundamental procedural rights of children in the administration of
criminal justice”, the Working Group urges it to further consider whether the provisions of
section 97 of the Child Act 2001 are in conformity with the obligations of Malaysia under
international human rights law. The Working Group considers that an important part of its
mandate is to assist States to ensure that deprivation of liberty, even when carried out in
conformity with national legislation, is consistent with international human rights law.14
Reservations to the Convention on the Rights of the Child
47.
On 19 July 2010, the Government entered a reservation to the Convention on the
Rights of the Child, as follows:
The Government of Malaysia accepts the provisions of the Convention on the Rights
of the Child but expresses reservations with respect to articles 2, 7, 14, 28 paragraph
1 (a) and 37, of the Convention and declares that the said provisions shall be
applicable only if they are in conformity with the Constitution, national laws and
national policies of the Government of Malaysia.15
48.
The Working Group takes note of that reservation, without making any finding on
its validity under international law. However, as the Working Group noted in its opinion
No. 37/2018, there are other provisions of the Convention relevant to the detention of
minors that are not subject to that reservation. They include the requirement that the best
interests of the child be a primary consideration (art. 3 (1)) and the right of every child
recognized as having infringed the penal law to be treated in a manner consistent with the
promotion of the child’s sense of dignity and worth, which takes into account the
desirability of promoting the child’s reintegration (article 40 (1)). As the Government noted
in its submission, Malaysia has a legal obligation under article 3 (1) to ensure that any
action or decision taken in relation to children is centred on the paramount importance of
the child’s best interests. The Working Group considers that that standard was not met in
Mr. Redzuan’s case, given that he has been detained under an indeterminate sentence for an
offence that he committed while a minor. Moreover, the Working Group recalls the
standards provided in other instruments, such as rule 19 of the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and rule 2 of
the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the
Havana Rules), in which it is stated that deprivation of the liberty of a juvenile shall be a
measure of last resort and for the minimum period necessary. Those standards apply to
minors regardless of the Government’s reservation.16
49.
In addition, torture is absolutely prohibited as a peremptory norm of international
law17 and under article 5 of the Universal Declaration of Human Rights, and both of those
apply to Mr. Redzuan’s situation. According to the source, Mr. Redzuan has been placed in
a situation of indefinite detention under the Child Act 2001, which constitutes
psychological torture. The Working Group will refer the matter to the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment.
13 In its response, the Government stated in relation to section 97 (2) of the Child Act 2001 that it was
the court that made an order sentencing a child to detention during the pleasure of the Yang di-
Pertuan Agong following a conviction. However, it is the Yang di-Pertuan Agong, not a court, who
makes the final decision on early release under section 97 (4) of the act.
14 See opinions Nos. 75/2017, 46/2011 and 13/2007. According to para. 7 of its methods of work, the
Working Group may refer to international instruments, including the Convention on the Rights of the
Child, in making this determination.
15 See treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
11&chapter=4&clang=_en.
16 See also Basic Principles and Guidelines, principle 18 and guideline 18.
17 See opinion No. 46/2017, para. 25.
A/HRC/WGAD/2018/90
11
50.
The Working Group joins the calls from other States and United Nations treaty
bodies urging the Government to withdraw its reservations to the Convention. 18 The
Working Group also calls upon the Government to review its laws, particularly section 97
of the Child Act 2001, and to bring them into conformity with the Convention on the Rights
of the Child.
Detention in the context of drug control
51.
Finally, the Working Group notes that Mr. Redzuan was convicted for committing
drug offences while he was 17 years of age. The Working Group wishes to reiterate its
concern about the use of criminal detention as a measure of drug control following charges
for drug use, possession, production or trafficking. The Working Group considers that
criminal laws and penal measures imposed in relation to drug control must meet the strict
requirements of legality, proportionality, necessity and appropriateness, and that fair trial
standards must be upheld in relation to the prosecution of drug-related offences, including
the right to ongoing periodic review (A/HRC/30/36, paras. 57–62). In the present case,
criminal sanctions for drug offences have resulted in a prolonged and indeterminate
sentence being imposed on a minor who has now spent over half of his life in prison. The
Working Group would welcome the opportunity to provide assistance to the Government in
ensuring that its drug control laws are consistent with international human rights standards.
52.
A significant period of time has passed since the Working Group’s last country visit
to Malaysia in June 2010. The Working Group considers that it is now an appropriate time
to continue its constructive engagement with the Government through another visit, and
looks forward to a positive response to its previous request to visit made on 15 April 2015.
Disposition
53.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohd Redzuan Bin Saibon, being in contravention of
articles 9, 10 and 11 (1) of the Universal Declaration of Human Rights, is arbitrary
and falls within categories I and III.
54.
The Working Group requests the Government of Malaysia to take the steps
necessary to remedy the situation of Mr. Redzuan without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration of Human Rights. The Working Group urges the Government to accede to the
International Covenant on Civil and Political Rights, and to withdraw all reservations to the
Convention on the Rights of the Child.
55.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Redzuan immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
56.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Redzuan and to take appropriate measures against those responsible for the violation of his
rights.
57.
The Working Group requests the Government to bring its laws, particularly section
97 of the Child Act 2001, into conformity with the recommendations made in the present
opinion and with the commitments made by Malaysia under international human rights law.
58.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, for appropriate action.
18 A/HRC/25/10, paras. 146.29, 146.32 and 146.34–146.35. See also CRC/C/MYS/CO/1, paras. 11–12
and 38–39, and opinion No. 37/2018, para. 48.
A/HRC/WGAD/2018/90
12
59.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
60.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Redzuan has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Redzuan;
(c)
Whether an investigation has been conducted into the violation of Mr.
Redzuan’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Malaysia with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
61.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
62.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
63.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has requested them to take account of its
views and, where necessary, to take appropriate steps to remedy the situation of persons
arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have
taken.19
[Adopted on 23 November 2018]
19 See Human Rights Council resolution 33/30, paras. 3 and 7.