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Saturday, September 28, 2013

PCA detention puzzle, is there or not judicial review?


It's confusing for the man in the street as opposition MPs claim that detention under the planned amendment to the Prevention of Crime Act 1959 (PCA) has no judicial review while the government is saying the exact opposite.

Legal experts contacted by Malaysiakini, too, have not been able to immediately weigh in on the legislation as the government has kept them in the dark on the amendments and those expressing their views also appear conflicted.

election monitoring group pemantau  bersihFor Bar Council Human Rights committee co-chairperson Andrew Khoo (right), he believes that there is indeed judicial review of the board's decision which calls for detention orders under the new PCA.

He said the provisions that disallowed judicial review only concern the board's decision relating to supervision orders.

Khoo explained while the new section 15A(1) expressly states that there can be no judicial review except for procedural matters against the board's decision, it falls within Part IV of the law which concerns supervisory orders.

However, Section 19A(2) which allows for judicial review by the High Court falls into the newly created Part IVA that deals only with detention orders, he told Malaysiakini.

"To be fair, yes, the sections are only confined to their own parts," he said.

From the bill itself, it is not clear that the sections are in separate parts until it is actually read together with an old copy of the PCA.

The planned amendment provides for detention order where a person can be held indefinitely in two-year periods or a supervisory order that allows restrictions to be imposed such as being attached with monitoring devices or forbidden Internet use.

Illusory review'


Nonetheless, Khoo said the bill still had weaknesses as Section 21A hands the government the power to deny information on the details leading to one's detention.

In such a situation, he said it would be difficult for detainees to defend themselves in a judicial review.

generation 709 220711 latheefa koya"They (government) can deny you information... Given the bare details, it makes a judicial review process illusory," he said.

However, PKR legal bureau chief Latheefa Koya (left) shares a different view, insisting that Section 15A(1) that disallows judicial review is not confined only to supervision orders.

"Definitely it cannot be confined to just Part IV. It affects the whole law... the section is very detailed," she told when contacted.

As such, Latheefa said Section 15A(1) and Section 19A(2) must be read together, meaning that there is no judicial review for either supervision or detention orders other than procedural matters.

She also rebutted Home Minister Ahmad Zahid Hamidi's statementearlier today claiming that there was no detention without trial under the new PCA as the detention could be challenged in court.

ISA detainee should know better'

"The bill is very clear that it allows detention without trial, I don't know what he is explaining but being an ex-Internal Security Act (ISA) detainee he should know.

"If he doesn't know then it's much more dangerous," she said.

The British-era ISA which was repealed last year had allowed detention without trial in two-year extensions and also disallowed judicial review expect for procedural matters.

Under the amended PCA, an inquiry can still be held to determine if a person has committed a registrable offence and should be included in a registrar.

A three -men board led by a judge can then issue detention or supervisory orders against people on the registrar.

However, Latheefa pointed out that these officers are appointed by the minister and abuse can happen to target political enemies.

"The board also does not sit in its judicial capacity and is appointed by the Yang DiPertuan-Agong who in turn must act on the advice of the government," she said.

Ultimately, Latheefa said if the government was serious about reform, it had to address Article 149 of the federal constitution which allowed for the creation of preventive laws even if inconsistent with civil liberties.
Gobind: Zahid hits new low

In a statement later today, DAP's Puchong MP Gobind Singh Deo slammed Zahid for his "shallow mentality", pointing out that a right to judicial review was not the same as a right to trial.

"I would like to ask Zahid what trial is he talking about? A trial means a hearing which relates to the merits or reasons for detention. 

NONE"Will detainees have that, an opportunity to defend themselves, against the allegations levelled against them in court under the proposed amendments to the PCA?" he said.

And even when it comes to a judicial review, Gobind said he too was of the opinion that it is only for procedural matters.

"This is exactly the same with the provisions in the ISA and the Emergency Ordinance which were criticised for allowing detentions without trial...," he said.

In a stinging attack, Gobind called on attorney-general Abdul Gani Patail to "educate" Zahid so that the latter would not become an "international embarrassment".

"His statements also take things to a new level of intellect so low that ordinary debate becomes difficult, because even the most simple and basic of things are not understood.

"I urge Zahid not to be a coward. He should have some guts and accept that the PCA amendments revert to preventive detention, which is detention without trial and deal with the issue head on," he said.

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