The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak vehemently oppose all forms of detention without trial, and view the passage into law of the Prevention of Terrorism Act 2015 (Pota) in the early hours of 7 April 2015 with grave concern.
Pota is clearly an attempt by the government to resurrect the Internal Security Act 1960 (ISA), Restricted Residence Act 1933, Banishment Act 1959, and Emergency (Public Order and Prevention of Crime) Ordinance 1969. Pota is objectionable, ignores due process, infringes upon our constitutional rights, and is repugnant to the rule of law. Pota brings about the re-emergence of detention without trial laws, the limiting or denial of legal representation, and the ouster of the jurisdiction of the courts.
Pota is unclear in its scope inasmuch as it is directed at an ill-defined group of persons. It is purportedly directed at persons who are “engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country”. However, words like “engaged”, “commission”, “support” and “involving” have not been defined in Pota.
Thus, the reach of the legislation is extremely wide and lends itself to abuse. It opens up the real possibility that almost anyone could be targeted under Pota. It cannot be conveniently seen as simply targeting ‘terrorists’. We have seen how the ISA, which had been meant to deal with the communist insurgency, was used to stifle political dissent and imprison political opponents.
Pota gives false hope in the exclusion of “political belief and political activity” as a grounds for detention. Organisations not registered as political parties under the Societies Act 1966 or not registered under the Societies Act 1966 at all may be subjected to the wide powers of PotaA. We also note that in the past, politicians and political activists had been detained under the ISA for activities that were nonetheless viewed as prejudicial to national security or public order. We fear Pota will be similarly abused as a tool for political oppression.
The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak are also very troubled by the encroachment into judicial discretion in criminal matters. Under Pota, a person can initially be remanded for investigative detention for a maximum of 60 days. A magistrate has no discretion to refuse a request for remand, and is reduced to rubber-stamping requests by the police and public prosecutor. Likewise, a Sessions Court judge has no discretion to refuse any application by the public prosecutor to order that an accused person be attached with an electronic monitoring device.
Discretionary powers that exist to enable the Judiciary to confront the excesses of the Executive are now effectively extinguished. The intrusion on judicial discretion permitted by Pota is serious, as it is tantamount to vesting judicial power in the Executive. We remind the government that under our constitutional scheme, judicial power is vested in the Judiciary, and the vesting of judicial powers in any other body is unconstitutional.
Further, there is no provision for the person remanded to be informed of the grounds of arrest nor is there any guarantee that legal representation will be allowed. This is because the police are prone to applying the exclusion under section 28A(8) of the Criminal Procedure Code to deny access to legal representation. This is another serious matter, as access to legal representation for persons facing a serious allegation of terrorism and the prospect of loss of liberty should not be denied.
Pota also confers draconian powers on the Inquiry Officer — who is not expressly defined in Pota — tasked with investigating the allegations against the accused person and presenting the evidence to the Prevention of Terrorism Board (POTB). In this regard the normal rules of evidence and criminal procedure are excluded, and the Inquiry Officer may procure evidence by any means. The Inquiry Officer then presents his/her report to POTB, and there is no provision for POTB to inquire into the report or require further investigation.
POTB has extensive powers — it may grant a detention order of up to two years or a restricted residence order of up to five years. These periods of detention or restricted residence may be subsequently renewed for an indeterminate period. These orders are to be made by POTB without due process, inasmuch as the accused person is denied the right to make any legal representation to the POTB.
Next, the argument that Pota cannot be compared with the ISA because it is no longer the Minister of Home Affairs who decides on the detention or restriction order, is specious. Members of the POTB are appointed by the Yang di-Pertuan Agong (but following convention, upon the advice of the government) and can be dismissed by the Yang di-Pertuan Agong at any time. This absence of security of tenure undermines whatever independence POTB purports to have. Only the Chairman is required to have legal experience, and there is no provision that he or she must be or must be qualified to be a judge.
We have seen from the practice of the Prevention of Crime Act 1959 that the names of the members of the Prevention of Crime Board have not been made public. It is likely to be no different for members of the POTB. The fact that POTB hearings will not be held in public means, in effect, that Pota will allow secret hearings by a secret panel. There will be no transparency.
One of the most offensive aspects of Pota is its absolute ouster of judicial scrutiny. No judicial review of the detention order or the restriction order is possible. This is an affront to the Judiciary and is further contrary to Article 8 of the Federal Constitution, which guarantees equality and equal protection before the law. The small concession that courts can review procedural compliance is illusory in practice since the POTB determines its own procedures.
The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak take the view that the answer to the fight against terrorism does not lie in oppressive laws that violate our adherence to the rule of law, due process and constitutional safeguards. The war against terrorism requires the strengthening of our ability to detect, gather evidence, investigate and deal with the threat of terrorism in a holistic manner. We must eschew shortcuts or quick fixes that seemingly provide short-term solutions but no long-term result.
We are aware of the evolving threat of global terrorism and the efforts by the Government to adapt in order to counter it domestically. We are supportive of these efforts but maintain that the war on terrorism must be won without compromising the rule of law, human rights and principles of natural justice.
The Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak reject this attempt by the government to revive detention without trial, repeated renewals of such detention, the ouster of the jurisdiction of the Judiciary, and the limitation or denial of the rights of suspected persons to due process of law.
We urge the government to withdraw Pota from being tabled in the Dewan Negara.
Datuk GBB Nandy @ Gaanesh
Sabah Law Association
Advocates’ Association of Sarawak
10 April 2015