Imprisoned but not convicted of a crime – it can happen in Malaysia

Malaysia needs to ensure justice is served in our prisons and prevent innocent people languishing there. No one should be behind bars because of poverty, says the columnist. — 123rf.com

On Feb 3, 2023, Malaysia’s Prisons Department announced it is planning reforms to reduce chronic overcrowding and recidivism; among the reforms are a rehabilitation programme and electronic monitoring for low-risk prisoners.

This is a pretty pivotal shift.

As nations go, Malaysia is on the punitive side, with some draconian laws and unforgiving punishments. The country's prison population rate is the fifth highest in Asia, reports the World Prison Brief (Turkmenistan takes the ignominious top position). Malaysia is also probably the only country where a former and current prime minister have done jail time.

(Former PM Datuk Seri Najib Razak was recently sentenced to prison over the 1MDB financial scandal and current PM Datuk Seri Anwar Ibrahim served jail time for corruption and sodomy in cases widely regarded as politically motivated and for which he was later pardoned.)

Ours is a tangkap nation that favours catching people unaware for some offence and slamming them behind bars. Raids are regular, as many a migrant worker can tell you, and can end with a lorry full of people taken away to prison. At one time, drug users were regularly picked up in raids and thrown by the thousands into drug detention centres.

Those centres proved to be ineffective and expensive, and we’ve since shifted towards treatment programmes. But we still lock up an awful lot of minor drug offenders in prison (63% of prisoners). Prison isn’t an answer for addiction; treatment is. It’s a waste of time and money and a risk to public health to keep throwing drug users in prison.

What is really disturbing and in need of urgent reform are the many people NOT convicted who are in prison. Yes, you read that right. A shocking 42% of people in prison (over 30,000) are on remand or awaiting trials. They may wait months, even years. Eventually, they may be found innocent after a trial that drags on for years, but they get no compensation for the years lost behind bars.

These cases invariably involve poor people unable to afford bail or secure surety. This is so grossly unfair. Shouldn’t people be presumed innocent until found guilty?

Lawyer and rights activist Charles Hector has called for a fund to provide bail for the poor, like Thailand’s Justice Fund, so no one is “languishing in prison simply because of poverty”. Remember, prisons can severely affect mental health.

“One effect of prolonged remand is that many eventually buckle and plead guilty even though they are innocent,” says Hector.

They lose faith in the system, or believe it’s better to move on than waste more money and an indefinite time fighting their case, he explains. This is utterly tragic.

Hector says cases where bail was unaffordable should be prioritised and, ideally, completed within three months. But we need more judges and courts to do this. Cases are currently constantly postponed and adjourned amidst impossible court schedules.

Hector also calls for bail amounts and conditions to be reviewed, and for compensation to be awarded to people found innocent after spending years in prison awaiting trial.

Then there are cases not entitled to bail. Sosma, the Security Offences (Special Measures) Act, has a provision under which a person can be detained and held for 28 days without a court order, and once charged, held in remand for years with no bail. Why can’t judges decide on their bail? The current Home Minister, Datuk Seri Saifuddin Nasution Ismail, has refused calls to review the Act.

Former Bersih chairman Maria Chin Abdullah Maria – who was arrested under Sosma a day before the Bersih 5 rally in 2016 and held in solitary confinement in a windowless cell – says Sosma “institutionalises injustice”. Lawyer Matthias Chang was also arrested under Sosma while visiting his client being held under Sosma.

Penang’s deputy chief minister P. Ramasamy has said Sosma has “no place in the government’s Masyarakat Madani*” and other laws cover gangsterism and terrorism. He called for Sosma detainees to be released.

Sosma reflects that prevailing tangkap mentality among our authorities. It’s easier to lock away a problem than address it. But we’ve reached a breaking point. Malaysia’s prisons are bursting, with close to 80,000 prisoners. And despite chronic overcrowding, the prison population continues to grow.

Selangor’s Sungai Buloh prison was built for a maximum of 2,500 inmates but is now crammed with 4,500. Outbreaks of Covid-19 and tuberculosis highlight the health risks of overcrowding. We urgently need a new approach.

The Prisons Department has started community rehabilitation programmes (with 5,000 prisoners on job schemes) which, so far, show a recidivism rate of just 0.24% – far less than the 15% among non-rehabilitated inmates. It is also looking at electronic monitoring: a cost-effective, less restrictive and more humane option with better recidivism results.

The department plans to accommodate more prisoners using former National Service camps and bunk beds. But it aims to cut the prison occupancy rate by two-thirds by 2030, its commissioner-general Nordin Muhamad has said. But this still does not resolve the large number of remand/awaiting trial prisoners – that’s an issue for our criminal justice system, and solving it could address prison overcrowding.

In the long-term, we should also try to prevent crime by looking at related psychosocial factors and addressing issues such as juvenile delinquency.

But first, we need to ensure justice is served in our prisons and prevent innocent people languishing there. No one should be behind bars because of poverty.

*Madani is an acronym for a policy under the Malaysia Unity Government that embraces six core values: keMampanan (sustainability), kesejAhteraan (prosperity), Daya cipta (innovation), hormAt (respect), keyakiNan (trust) and Ihsan (compassion).

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Human Writes columnist Mangai Balasegaram writes mostly on health but also delves into anything on being human. She has worked with international public health bodies and has a Masters in public health. Write to her at [e-mail]. The views expressed here are entirely the writer's own.