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Saturday, March 31, 2007

AIM Statement

Here's a statement from Amnesty International Malaysia.

Malaysian Guantanamo detainees will not receive fair trials under the Military Commissions Act

Amnesty International Malaysia believes that the two Malaysians, Mohd Farik Amin and Mohammed Nazir Lep detained at Guantanamo would not receive a fair trial according to international standards, despite the call by the Malaysian government as stated by Member of Parliament, Datuk Shabery Cheek yesterday.

What Datuk Shabery and the government have failed to understand is that the Military Commissions Act (MCA) has failed to comply with international standards and key requirement of a free and fair trial. Amnesty International has outlined various concerns about the Act in out report entitled “USA: Justice delayed and justice denied? Trials under the Military Commissions Act”

The military commissions operate in a legal vacuum where defendants cannot turn to international human rights law, the Geneva Conventions or the US Constitution for protection. The military commissions are part of a universe absent of judicial remedy for detainees and their families. Even if a detainee is acquitted, he may be returned to indefinite detention as a so-called “enemy combatant”.

The military commissions are patently tailored to fit the unlawful practices where information coerced by cruel, inhuman or degrading treatment will be admissible. At the same time, the government may introduce evidence while keeping secret the methods used to obtain it. At any such trials, the defendants will be individuals who have been subjected to years of indefinite detention, whose right to the presumption of innocence has been systematically undermined by a pattern of official commentary on their presumed guilt, including on the part of the President, who is given the power under the MCA to establish the commissions and act as final clemency authority.

The right to a lawyer of choice for detainees charged for trial by military commission is restricted under the MCA. The civilian lawyer must be a US citizen and have passed stringent security clearance. A defendant is not able to choose as a lawyer a non-US national and even if the defendant retains a US civilian lawyer with the necessary security clearance, he will still be represented by a US military lawyer as associate counsel, even if that goes against the defendant’s wishes. The right to trial within a reasonable time, guaranteed in US federal courts and courts-martial, is denied to "unlawful enemy combatants". Furthermore, the detainee cannot bring a habeas corpus petition, either to the commission or to any other court.

The fact that there is no civilian component to the military commissions’ raises concern as to whether they can meet the requirements of independence and impartiality. The MCA provides for a military judge - a serving officer of the US armed forces on active duty - to preside over each military commission and to decide on questions of law, including the admissibility of evidence. In the USA, unlike the ordinary trial-level federal courts, military tribunals, whether courts-martial or military commissions are part of the political branches, rather than the judicial branch of government

The absence of a framework of law upon which either the defendant or the commission can draw leaves the defendant’s ability to prepare a defence in jeopardy and raises further questions about the independence of the commission.

We also find it ironic that Datuk Shabery Cheek is calling for fair trials for the Malaysians at Guantanamo yet has ignored the fact that the right to trial for those detained under the Internal Security Act (ISA) in Malaysia has been denied.

We are also shocked about his claim that the ISA does not infringe on human rights. Various local and international organizations including SUHAKAM has recognized that the ISA, which allows for indefinite detention without trial and has facilitated patterns of grave ill-treatment, as a violation of fundamental human rights. Amnesty International has repeatedly called for the repeal of the ISA due to these concerns.

Finally, we urge the Malaysian government to bring home the two Malaysian Guantanamo detainees and accord them a fair trial based on the rule of law and international human rights principles. If the Malaysia justice system can find no ground or evidence on the basis of which to prosecute them, then they must be released.