The JI four's "confessions": TV3 indulges in trial-by-media

Any decent and thinking person watching TV3's airing of so-called "confessions" by four alleged members of the alleged regional terror group Jemaah Islamiah would have been outraged. Edmund Bon, the lawyer representing a few other JI detainees, felt repulsed at the broadcast and sent this to us. His comments were partially reported in The Sunday Mail. To its credit, Suhakam has also slammed TV3 for airing these "confessions."

We reproduce lawyer Bon's comments in full. It is great to see a lawyer standing up for human rights and justice. His piece is slightly long but definitely worth a read:

"In a press release, TV3 called it making history “again by filming an exclusive interview with four JI detainees now under the custody of Indonesian police” (see Malaysiakini report “TV3's ‘confession’ flick irks Suhakam”, 2 April 2004).

I do not wish to be part of that “history” and hence, I am compelled to place in proper context the “confessions”.

The participants. They are Malaysians detained in Indonesia. They were arrested at different times. The manner and precise details of their arrests and detentions are sketchy and not fully known. How they have been treated since their arrests have not been revealed or tested in a court of law. Whether they have had access to lawyers and have been advised of their rights are other questions unanswered. The point to be remembered is that the participants are not free men. They are men under arrest and detention.

The venue. It was held in a police building of the Indonesian authorities. The background looks posh and stylish but it is only in fact a police station. The police control it. The participants were under the supervision, direction and rule of the police. There was no escaping. It was a controlled environment.

The TV crew. The crew were despatched from a Malaysian television station, TV3. There were two men asking the questions, with presumably some others as film crew. Their presence could only have been possible with the assistance of the Malaysian and Indonesian authorities. The men had laptops and were neatly dressed. Beneath those suits however, they knew what they wanted to get. They acted more like interrogators than journalists. They acted as if they were Special Branch officers, in nice suits, interrogating suspects. The questions were leading questions, as if the answers were already known. The answers forthcoming from the participants appear to have been scripted and rehearsed. There was no turning back for the participants. They were not full, candid and frank “confessions”.

The governments. The governments of Malaysia and Indonesia were not represented during the confessions. This is not unexpected, they had to hide behind the scenes. However, it is tacit that their approval was given and they knew beforehand what was to be aired. Would they allow suspected members of JI to state that there was no such organization as JI or deny the existence of JI’s activities and give reasons for that? Would they allow suspected members of JI to state they were tortured, coerced or induced by promises into “confessing”?

The programme. It was a gimmick. There were no “confessions”. It was a scripted interview. All of them acted and played their parts. Why this was done is unclear but one can speculate that the authorities are trying very hard now to justify their allegations of JI terrorist activities and JI’s existence.

The world knows that they could not do it at the Bashir trial and he, being the supposed head of JI, is going to be released in April 2004 whereas his poor purported “followers” in Indonesia such as the participants and many others in Kamunting will linger on in detention. If nobody could or can do it properly through the courts of law, why not now through trial by media?

Detention without trial of Bashir’s “followers” in Indonesia and Malaysia emphasizes this simple fact – there is no evidence beyond a reasonable doubt which will stand in a court of law justifying incarceration of these purported JI members for their purported terrorist activities.

The content. This is a laugh, really. The questions are leading, and the answers scripted; yet, the participants do not say anything we did not already know from the propaganda of the security forces of America, Malaysia, Indonesia and other States. This propaganda swirls like a tornado trying to convert any other remaining unbelievers of terrorism and JI. But the truth remains, and I have said it many times before, that a lie told a thousand times, twisted another thousand times, would soon “become” or “be believed” as gospel truth.

And yet, if I was to tear the “confessions” apart, what offence have the participants committed? No, I did not know about the plans or actions regarding the Bali or Marriot bombings but after that (after that when?), I knew it was wrong. Where is the offence? We all know the bombings were wrong. Charge them and imprison them if need be on proper charges. Let them have a fair trial before an effective judicial and legal system, and one not politicized by State(s’) propaganda.

If that’s all the authorities have on these four men - which has convinced them to detain them for terrorism-related offences - then shame on Indonesia and Malaysia. If that is about all Malaysia and Malaysia’s supposedly efficient Special Branch have on our friends in Kamunting, then now I understand why no charges have been brought against them to date. I say they are friends because no one, unless he is GOD, is to judge and throw the first stone punishing another before he is properly tried in an effective trial with full rights accorded to him as an accused person.

The legal implications. Firstly, TV3 may have committed contempt of court. The issues covered are sub judice. There are 10 detainees in Kamunting who have filed habeas corpus applications in the Malaysian courts. The applications were dismissed recently by the Kuala Lumpur High Court. Their appeals to the Federal Court are still pending. They are alleged to be members of JI. Among the issues covered in these applications are whether there is evidence JI exists and the alleged terrorist activities of JI. It is my view that TV3’s programme of the “confessions” would tend to influence the Federal Court to decide against the detainees.

Secondly, let us ask the right questions about the “confessions”. Safe? Reliable? Tortured out of them? How do we know? How do we test? Are we to treat every person being detained - either pending trial or not - like this? The issue is – can one being detained ever be allowed to “confess” anywhere other than in a court of law, on the same very issues of his detention? If so, why have a justice system because we can bypass that.

Coercion? Inducement for less time in detention or for immediate release? Did TV3 ask and air who had special treatment before the “confessions” were aired? TV3 did not ask and air who had special “rights” in detention to meet his wife at a hotel. TV3 did not ask and air who had special “rights” to be on the phone with people overseas. Why not? Would that have made a difference? Perhaps.

The criminal justice system is meant to ensure that “confessions” given are voluntary and free. That is an accepted safeguard. Use that system.

The history. There are too many questions unanswered with regards to the programme. There have been ISA detainees who have “confessed” on air only to retract their “confessions” later after release. To repeat the oft-used examples, Chng Suan Tze v. Minister of Home Affairs [1989] 1 MLJ 69 and Teo Soh Lung v. Minister of Home Affairs [1990] 2 MLJ 129 are two reported cases where duress was alleged by the detainees to coerce them into making “confessions” on air. This danger is too real to be ignored; too glaring to be unnoticed.

The human rights issue. Quite simply, the human rights question is: why now? It appeared that only until after the participants were arrested and detained did they wish to “apologise” and “repent”. What did they go through while under detention to only want to “apologise” and “repent” now, when before that they were purportedly running around trying to blow up hotels or like action? But the human rights standard as agreed by the international community is envisaged in Article 95 Standard Minimum Rules For The Treatment of Prisoners and which reads:

“Without Prejudice to the provisions of Article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence.” (Emphasis in bold mine)

Has this been breached? Has TV3 ensured this was not breached before interviewing and airing the programme?

The bottom line is this – charge them or release them. Do not showcase human beings in front of nationwide audiences for them to be judged on an unfair basis whereby the programme is entirely skewed and lopsided with no counteractive measures available.

Give them a fair trial – it is as simple as that. Human rights norms demand in Article 9 of the International Covenant on Civil and Political Rights that anyone arrested or detained be brought promptly before a judge to exercise judicial power and that person shall be entitled to a trial within a reasonable time or to release.

The reversal. I do not agree that TV3 was right in making the programme and airing the same. Suffice to say, I am instructed that there are untruths, factual inaccuracies, embellishments, concoctions and falsehoods in the statements made by the participants. The damage is however done.

Although I again state that it is not right to air such a programme, TV3 must be responsible and ethical to balance the damage and soften the blow. TV3 must now go to Kamunting and air a programme featuring four suspected JI terrorists being held there to allow them what they wish to say in refutation or in addition or in denial or in support of the “confessions” of the participants.

Wan Min Wan Mat (although he is supposedly to be in Kamunting, he is not there but at a place unknown), Idris Salim and Roshelmy Shariff are among those being held by Malaysian authorities suspected of being JI members and who have been implicated by the participants of the programme. There are among those who must be given a chance to say something, if they wish to, and let me say in anticipation that I believe they do.

The result. TV3 calls it history. Only in Malaysia probably will we find a supposedly independent and free television station proclaiming history being made after making a mockery of human rights and assassinating detainees without trial, via trial by media.

The crux. Ask yourself these three posers after watching the programme to see if you can satisfy your conscience: what is a human being, how are human beings to treat each other in society and is this the type of society we want to live in?"