FIVE REASONS WHY POTA IS SCARY

(MMO) – If you are arrested, you cannot challenge your arrest in court. You cannot argue in court that your arrest is unlawful. No court can order your arrest to be stopped. And no court will be able to declare your arrest unlawful.

Last week I saw a tweet by a member of Parliament that the Prevention of Terrorism Bill was finally available for download from Parliament’s website. So I downloaded a copy and read through it. Because my reading preferences are messed up that way.

I’m not a legal expert. But I can read English (and Malay; if you’re so inclined you can download a Malay version of the Bill). And while I am in no way involved in anything that may be called terrorist-related, the Bill still gave me the chills.

Here are five reasons why the prospect of this Bill becoming law scares the shit out of me:

1. You can be arrested for up to two months (on suspicion alone)

Five pages in, I was reading Section 3. According to this Section, a police officer may arrest anyone without warrant if the officer believes there is reason to justify an investigation into that person.

Okay, this is not so unusual, in certain scenarios police officers can forego a warrant. Being able to arrest on the basis of the officer’s opinion alone, however, opens room for abuse. Because a lot of people are intimidated by the mere thought of being arrested.

But maybe it’s not so bad, because the arrested person must be brought before a magistrate within 24 hours of arrest.

That’s when I read Section 4: if a police officer ranked Inspector or higher produces a written statement saying there is reason to believe the arrested person is involved in terrorist activities, the magistrate shall remand that person in police custody for 21 days.

Note the word “shall” which is how the Bill worded it — I am now wondering if the magistrate will be empowered to exercise judgment and discretion in evaluating the merits of that statement.

Anyway. By the end of this 21-day period, the arrested must be taken before a magistrate again.

At this point, if the public prosecutor signs a written statement saying there is enough evidence to hold an inquiry; or if a police officer ranked Assistant Superintendent or higher signs a statement saying “it is intended to hold an inquiry” into the case; then the magistrate “shall... order the person to be remanded in custody” for a 38-day period.

That’s a total of 60 days or so from the point of arrest up to the end of the second remand period — will the magistrate actually be informed of the reasons to believe the arrested person needs to be in custody? Doesn’t sound like it.

So far it seems in the current form the Bill allows for any suspect to be held for two months without actual proof being produced of his or her terrorist-related activities. And the language sounds like the magistrate must direct the remand if the requisite statements are produced.

2. Your movements are tracked for up to two months

Section 6 talks about the release of a person remanded by Section 4. According to Section 6, the arrested person may be brought before a Sessions Court judge at any time.

Now if there are no other reason to keep the person in custody and if a police officer ranked Assistant Superintendent or higher signs a written statement to the Sessions Court judge saying the investigation into that person is not intended to continue, the judge shall direct the person’s release.

On the other hand, if the police apply for it, there are two scenarios which lead to the same thing: police surveillance.

First, the judge may order the person’s release subject to a bond — that person must report regularly to a specified place at a specified time for up to 59 days.

Otherwise, the second scenario is that the person may be under police surveillance for up to 59 days.

In both scenarios, the person will be tracked with an electronic monitoring device. With the monitoring device comes rules. Break any of those rules and the person faces imprisonment of up to three years.

Bear in mind that this person was originally arrested on basis of suspicion alone (see (1) above).

3. An all-powerful Inquiry Officer

The Home Minister previously talked about the Prevention of Terrorism Board, which will be appointed by the Yang Di-Pertuan Agong. This Board is where the power to detain lies, he said.

But what he may have missed mentioning is the Inquiry Officer, which the incumbent Home Minister has the sole discretion of naming, according to Section 9. And the powers proposed to be bestowed upon the Inquiry Officer by the Bill are plenty.

Under Section 10, Subsection (3) (a) empowers the Inquiry Officer to procure evidence by any means he feels necessary in the course of investigation against the suspect. This means the Inquiry Officer does not have to play by the normal rules — anything goes.

Sure enough, this is spelt out in Subsection (3) (c): the Officer can demand for any document or pretty much anything that he feels is relevant to the case. Note that “relevant” here is based solely on his opinion.

And Subsection (3) (e) stipulates that the Officer can “give any direction as may be necessary.” Are we talking about absolute power here?

Now I came to Section 11. Here the Inquiry Officer pretty much can demand access to any detainee whom in his opinion — again, just what he thinks — is relevant to the case at hand.

And the access comes without allowing the suspect or his lawyer or any of his representative to be present when the Inquiry Officer meets with whomever he is demanding access to.

To summarise, the Inquiry Officer under the Prevention of Terrorism Act has wide-ranging powers that borders on legal discretion to do as he sees fit — as long as the Officer believes that it suits the investigation he is pursuing.

4. You may be detained indefinitely...without conviction

Now back to the Prevention of Terrorism Board. The Board is empowered to order the detention of a suspect for up to two years if, following a full report by the police officer making the arrest under Section 3 (see (1) above) or the Inquiry Officer, the Board is satisfied that the suspect is indeed involved in terrorist-related activity.

A side note. If the Board feels the suspect doesn’t have to be detained, the Board can order the suspect to stay within a particular state or district or any other geographical limitation for up to five years.

Under such an order the suspect cannot move houses to another area or even leave the area he is confined to unless with written permission. A number of strict conditions apply and breaking any one of them means imprisonment of anywhere between two and ten years.

But here’s the scary part. Under Section 18, the Board may order the detention period be extended for another two years (another five years for a restriction order). And the Bill does not specify a limit for these extensions.

In other words, the current form of the Bill allows for endless extensions — essentially indefinite detention in the case of the detention order. And the suspect need not be convicted of any offence.

5. No court can help you

Okay, so far the provisions of the Bill look depressing. But surely a suspect can look to the legal system for protection against unjust arrests, no? The Federal Constitution after all guarantees all Malaysians equality and equal protection before the law.

Oh, but you should think again. Section 19 of the Bill says there “shall be no judicial review” in any court when it comes to anything done in accordance of the Act. Similarly no court will have any jurisdiction in terms of anything done under the Act except on matters of procedural compliance.

What does this mean? It means that if you are arrested, you cannot challenge your arrest in court. You cannot argue in court that your arrest is unlawful. No court can order your arrest to be stopped. And no court will be able to declare your arrest unlawful.

The word “unconstitutional” comes to mind, huh?

Another interesting part is Section 32. It essentially protects the Prevention of Terrorism Board, its members, an Inquiry Officer or any other “public servant” to disclose facts or documents which he considers to be against public interest to disclose or which would compromise the safety of a witness, his family or his friends.

This may sound like a protection against the Inquiry Officer’s power to demand any information in the course of investigating a suspect. But what it also sounds like to my layman ears is carte blanche to keep everything done in accordance with the Act under wraps for “public interest.”

So are you terrified of the Bill yet? Can we live in a society where we can be arrested for up to months on the basis of suspicion alone and even be detained indefinitely, all the while denied access to legal recourse to challenge these? For a preventive legislation, these seem an overkill.

What comes to mind is what Benjamin Franklin once said about freedom and security — if we give up liberty for safety then we’ll have neither.