Anti-terrorism or punishing all dissent?

New security law a shameless revival of ISA, Restricted Resident, Banishment and Emergency Ordinance

COMMENT

By Steven Thiru

The Malaysian Bar abhors detention without trial, and views the Prevention of Terrorism Bill 2015 (commonly referred to as “POTA”), which was recently introduced in the Dewan Rakyat, as a repressive law that is an affront to the rule of law and repugnant to the principles of natural justice.

It is a shameless revival of the Internal Security Act 1960 (“ISA”), Restricted Residence Act 1933, Banishment Act 1959 and Emergency (Public Order and Prevention of Crime) Ordinance 1969, all of which were previously repealed or revoked in 2011 or 2012. Moreover, many of the oft-touted goals of the Government Transformation Programme, of removing old and archaic laws, have been comprehensively reversed because POTA, like the Prevention of Crime Act 1959 (“POCA”) that was extensively amended and expanded in 2014, allows for detention without trial and restricted residence or internal banishment.

POTA 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, because words like “engaged”, “commission”, “support” and “involving” have not been defined in POTA, the reach of the legislation is extremely wide and lends itself to abuse. It opens up the possibility that almost anyone could be targeted under POTA. We have seen how ISA, which had been meant to deal with the communist insurgency, was used to stifle political dissent and imprison political opponents.

The exclusion of “political belief and political activity” as a ground for detention under POTA is also false comfort. The Malaysian Bar is concerned that 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 POTA. 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.

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 by the police for remand, and is reduced to a rubber stamp. 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 permitted. 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.

Moreover, it is to be noted that POTA allows for a Sessions Court Judge to order that an accused person be attached with an electronic monitoring device upon the application of the Public Prosecutor. However, the Sessions Court Judge has no discretion at all in the matter. Thus, like the Magistrates’ Court in respect of investigative detention, the Sessions Court has also been made a mere rubber stamp.

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. Moreover, an accused person is not legally represented before POTB.

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 POTB.

Next, the argument that POTA cannot be compared with 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 POCA 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 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 abe no transparency. There is no provision allowing for a prospective detainee to be present at a POTB hearing, and/or for the detainee to be legally represented.

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 violates our constitutional scheme, which invests judicial power in 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 POTB determines its own procedures.

Along with the introduction of POTA, the Government is proposing to introduce a Special Measures Against Terrorism in Foreign Countries Act 2015, and to amend POCA, the Penal Code, the Criminal Procedure Code, the Prisons Act 1995 and the Security Offences (Special Measures) Act 2012 (“SOSMA”).

However, when taken as a whole, all these other legislative measures actually make the introduction of POTA itself wholly unnecessary.

The amendments to the Penal Code enlarge the nature and extent of offences within Part VI that deal with terrorism, and for which alleged offenders must be tried in open court. The amendments to POCA — the introduction of which the Malaysian Bar also opposed — extend its scope to include terrorists.

While we have serious concerns about some of these other amendments as well, the combination of these two sets of amendments, together with the new Special Measures Against Terrorism in Foreign Countries Act 2015, adequately address the threat that is posed by terrorism, whether foreign or domestic.

It is also noteworthy that the amendments to SOSMA expand the scope of surveillance and information gathering (and constitute a violation of the right to privacy).

POTA is therefore clearly not required.

Malaysia’s experience with detention without trial laws is a blight on our nation’s history.

Detention without trial laws are not only abhorrent to the rule of law and the principles of natural justice, but are counter-productive from a security standpoint as well. Lack of transparency in detention without trial undermines public trust in law enforcement and reduces cooperation with authorities. Detention without trial also frustrates criminal investigations, by encouraging police to make an arrest before they have sufficient evidence to maintain a successful prosecution in open court.

The war against terrorism is not a physical conflict, but a contest of ideals and principles.

Terrorists do not share our ideals and principles with regard to the rule of law, human rights and principles of natural justice. Compromising or abandoning our own ideals and principles as a response to terrorism makes us no better. We are capable of winning the war on terrorism and rejecting those negative values, whilst abiding by the rule of law, respecting and protecting human rights, and applying the principles of natural justice.

By introducing POTA, Malaysia also violates her international commitment to abide by United Nations Security Council Resolution 2178, passed unanimously on 24 September 2014, which provides that:

[The Security Council reaffirms that] Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law, [and underscores] that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort and notes the importance of respect for the rule of law so as to effectively prevent and combat terrorism, and [notes] that failure to comply with these and other international obligations, including under the Charter of the United Nations, is one of the factors contributing to increased radicalisation and fosters a sense of impunity….

It is unacceptable that Malaysia — as a non-permanent member of the United Nations Security Council — has adopted a course of action that contravenes a resolution of that very same body.

The Malaysian Bar remains steadfastly opposed to detention without trial. As such, we view the POTA as a backward step.

We call on the Malaysian Government to withdraw POTA, and bring all other legislation into line with its domestic and international commitments to respect the rule of law and the principle of natural justice.

* Steven Thiru is president of the Bar Council *