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Monday, July 31, 2017

Controversial Poca resurfaces with new amendments



KINIGUIDE | The controversial Prevention of Crime Act 1959 (Poca) has resurfaced in Parliament again, reigniting the debate on the necessity of the law.
This law was overhauled in 2013 to facilitate detentions without trial, after laws containing such provisions, such as the Internal Security Act and Emergency (Public Order and Crime Prevention) Ordinance, were repealed as part of a reform that has since fallen apart.
This instalment of KiniGuide explores Poca, and what the proposed changes would mean for it.
What is Poca and why is it controversial?
Poca allows a body called the Prevention of Crime Board to impose severe restrictions on a person’s freedom of movement, if the board believes that the person is a member of a so-called “registerable category”.
Most of the complaints against Poca are that these restrictions were imposed without trial and almost no judicial oversight. With the proposed amendments, these issues would become worse.
What is a registerable category?
The list includes secret society members, drug or human traffickers, gambling syndicates and terrorists.
Those who have been convicted on at least three occasions of offences involving dishonesty or violence since turning 17 years old are also registrable if they are now more than 21 years old.
The list may be amended by the home minister at any time, through a gazette notification.
Political beliefs and activities are explicitly exempt as grounds for detention under Poca’s provisions.
Who sits on the Prevention of Crime Board?
According to the Act, the Yang di-Pertuan Agong will appoint a legally qualified person of at least 15 years’ experience as the board’s chairperson. The Agong shall also appoint a deputy chairperson and three to six other members.
These appointments are valid for three years. Currently, the members may also be reappointed once for another three years.
So how does a person get registered?
The process starts when police personnel arrest (without the need of a warrant) someone they believe to belong to a member of a registerable category.
From here onwards, a person may be detained for up to 24 hours, and then remanded for up to 59 days. The case needs to be referred to the deputy public prosecutor within seven days of the arrest, and to an inquiry officer as soon as possible after the first remand process.
At the first remand hearing, the magistrate shall remand the detainee for 21 days if a police officer above the rank of inspector produces a written statement supporting this. If there is no such statement, the detainee would be released, but may be attached with an electronic monitoring device and be required to be supervised by the police for up to 59 days.
When the first remand is about to expire, the detainee would be taken before a sessions judge. This time, if the public prosecutor and a police assistant superintendent, or one in a higher ranking, write in support of the remand, it would be extended for 38 days.
Once again, if no such statement is forthcoming, then the detainee may be released, with or without further conditions.
Note that the wording of Poca gives the magistrate and the sessions judge no discretion on whether to grant the remand order and for how long.
Then, there is an inquiry to be contended with, and an inquiry officer.
What is the inquiry about, and who is the inquiry officer?
An inquiry officer is a person appointed by the home minister. The only condition is that the appointed person may not be a police officer.
As mentioned before, a detainee must be brought before an inquiry officer as soon as possible, after he or she is remanded.
The inquiry officer is responsible for determining whether there are reasonable grounds to believe that the detainee is a member of any registerable category and then report to the Prevention of Crime Board.
To do this, the inquiry officer is empowered to procure and receive all evidence (including those that won’t be admissible in court) and to summon and examine witnesses.
The officer then reports his findings and recommendations to the Prevention of Crime Board, and a copy of the report would be given to the detainee.
What happens at the Prevention of Crime Board?
If the board decides that the detainee is not a member of a registerable category, then it may order the detainee to be brought before a sessions judge, and then released if there is no other reason to detain the person.
Otherwise, the board would proceed with the registration process and forward a copy of its decision to the detainee.
Want to appeal against the decision?
The appeal may be made in writing to the Prevention of Crime Board within 14 days, which may then affirm its findings or decide to reverse it.
Are there other ways to get registered?
For those who have been convicted of offences involving dishonesty or violence on at least three occasions since turning 17 years old, and are now more than 21 years of age, the Prevention of Crime Board may order their names to be entered into the registry. The same applies for those believed to be triad members.
This can be done with or without an inquiry, provided that the board believes this to be in the interest of public order and security.
The board is also empowered to direct any person to be removed from the register at any time.
I want my lawyer!
A detainee will not be represented by a lawyer, except when his or her own statements are being recorded by the inquiry officer.
Further, the Prevention of Crime Board’s decisions cannot be reviewed by the court, except on whether Poca’s procedures had been complied with.
However, an exception exists if the board’s decision is to issue a detention order (see below). For now, at least, detention orders can be reviewed by the High Court.
What happens when a person is 'registered'?
This is up to the Prevention of Crime Board’s discretion. For example, the board may decide to impose restrictions similar to those of the now-repealed Restricted Residences Act 1933 for a period of five years that may be renewed.
In this case, the registered person would be required to reside in any state, district, town, or village in accordance with the board’s orders, and may not leave without written permission from the state police chief.
He or she would be fitted with an electronic monitoring device, and may also be required to report to the nearest police station regularly, and be subject to a curfew.
The registered person may only use communications equipment and facilities approved by the state police chief. In particular, he or she may not use the Internet, unless stated otherwise in the Prevention of Crime Board’s orders.
If these restrictions are breached, the person is liable to be sentenced to between two and 10 years of imprisonment.
So that means I’d be under house arrest if I’m registered?
Poca refers to this as "police supervision", while the term "house arrest" does not appear anywhere in the Act.
However, there are other restrictions. Among others, registered persons may not consort with other registered persons.
They may not be found loitering in a public place or near a place of public entertainment between the hours of sunset and sunrise, or be found near any act of violence or breach of peace. If they are and cannot satisfactorily explain their presence, they would be subject to up to five years’ imprisonment or a fine of up to RM10,000, or both.
If a registered person commits certain offences under the Societies Act 1966, Corrosive and Explosive Substances and Offensive Weapons Act 1958, Common Gaming Houses Act 1953, and the Penal Code, the maximum penalty for those offences would be doubled.
Alternatively, instead of imposing restrictions to a registered person’s residence, the Prevention of Crime Board may simply issue a detention order for up to two years, which can be renewed once for up to two years.
So what’s happening now?
The Prevention of Crime (Amendment) Bill 2017 was tabled in Parliament for its first reading last week. It now sits as the 10th item on the Dewan Rakyat’s order paper.
However, it is not clear when the amendment would be tabled for its second reading for the lawmakers to start debating the proposed law.
What is going to change?
Among the key changes being proposed are that detainees would no longer be brought to an inquiry officer after the remand process.
Instead, the police are supposed to submit an investigation report to the inquiry officer and the Prevention of Crime Board, upon which the inquiry officer would start the inquiry process.
The explanatory statement of the bill says this would mean that a detainee would only be brought before an inquiry officer only for the purpose of the inquiry.
However, it should be noted that such statements only express the legislative intent of the lawmakers and does not become law itself, even if the amendments are passed and gazetted.
Meanwhile, the Prevention of Crime Board and the inquiry officer would no longer be required to provide the detainee a copy of their decisions.
Term limits for the Prevention of Crime Board members would be removed, meaning that they can be reappointed again and again after serving their three-year terms.
In the event the board issues a detention order against a detainee, that order can no longer be challenged in court.
The proposed law also introduces some tweaks to how electronic monitoring devices are treated. Currently, it is an offence to destroy and tamper with it, with the penalty of up to three years’ imprisonment plus paying for the damages.

Under the amendment, this would be extended to include the damaging and loss of the device, as well as any other device used in conjunction with it. If the wearer fails to pay for the damage, the court may sentence the person to up to three years’ imprisonment.
What are people saying about it?
Lawyers for Liberty (LFL) executive director Eric Paulsen expressed concern about the changes to the inquiry officer’s role.
“Serious concerns must surely be raised as to how the inquiry officer can 'inquire' and make a ‘finding’ if the detainee under the amended procedure is not required to be brought before the officer,” Paulsen said last week. - Mkini

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