Preventive detention laws make mockery of judiciary

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are appalled by the numerous proposed amendments to the Prevention of Crime Act 1959 ('PCA') and 10 other legislations, including proposed amendments to the Criminal Procedure Code and the Evidence Act 1950.

The proposed amendments to the PCA are objectionable and repugnant to the rule of law. The amendment to the preamble of the PCA which recites Article 149 of the federal constitution is revealing in that it does not merely amend the PCA but it effectively re-introduces the Internal Security Act 1960 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. 

These amendments violate the rule of law and ignore due process and infringe upon our constitutional rights.

Despite assurances by certain quarters of the government that laws similar to the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Internal Security Act 1960 would not be resurrected, the government is now seeking to re-introduce via the Prevention of Crime (Amendment and Extension) Bill No. 8 of 2013 the most offensive elements of these repealed legislations.

The proposed amendments to the PCA seek to revive preventive detention without trial, repeated renewals of such detention without trial, oust the jurisdiction of the judiciary, deny the rights of suspected persons to due process of the law, such as the right to legal representation and the right to be heard before any adverse decision or direction is made.

The amendments provide that a suspected person does not have a right to legal representation during an inquiry to determine whether the person is a member of a registrable category under the PCA, and therefore liable to supervisory or preventive detention orders. 

The suspected person is not provided with the grounds for any adverse findings, and does not have the right to appeal or apply for review to the courts against any adverse findings or a supervision order.

Safeguards illusory

The amendments are an affront to the judiciary. The judicial review powers of the judiciary have been removed by Section 15A in respect of any act done, finding or decision made by the prevention of crime board ('board') under the PCA, except in regard to any question on compliance with any procedure required in the PCA. 

This limited concession is meaningless as the amendments go on to provide that the board shall set its own procedures as it wishes. The discretionary sentencing power of the judiciary to order a discharge with a caution or a binding over for good behaviour has also been removed by the proposed Section 15(6) of the PCA.

The proposed amendments appear to provide for safeguards with regard to preventive detention orders, namely:-

(a) The amendments provide for the establishment of the board. The board is vested with the power to order preventive detention without trial of up to 2 years and any renewals thereof, instead of the minister; and

(b) The amendment under Section 19A(2)  also provide for a right to apply for review to the High Court against the direction of the Board for preventive detention and any renewals thereof.

These safeguards are insufficient or illusory.

The board has limited utility as it does not have power to inquire into or re-examine the accuracy, sufficiency and veracity of the findings of the inquiry officer and the grounds for the findings  

The inquiry officer is appointed by the minister and has sole conduct of any inquiries under the PCA. The board is effectively bound by the findings and the grounds of the inquiry officer in exercising its discretion as to whether to release the suspect, or issue a supervision order or direct a preventive detention. 

The idea for this board is clearly borrowed from the Internal Security Act 1960 which had provided for an advisory board. History has shown us that this did not in any way prevent rampant abuse and unjustified detention without trial.

Although the amendments under Section 19A(2) provide for a right of review by the High Court of any preventive detention orders or renewals of such detentions, the right of review is rendered illusory as the grounds or reasons for the inquiry officer’s findings and the board’s decision are not provided to the suspected person, and the inquiry officer and the board may refuse to provide any information and documents to the court and the suspected person on the basis that it would be against the public interest to do so.

Section 7C(a)(i) alarming, abhorrent

The proposed Section 7C(a)(i) of the PCA is alarming and abhorrent. It provides that a criterion which the board shall apply in deciding to issue a preventive detention order is that the person has committed two or more serious offences, whether or not that person has been convicted of the offences, if the inquiry report finds sufficient evidence to support such finding.

This means that the inquiry officer has taken on the role not merely as an investigator or inquirer but that of prosecutor and judge. The inquiry officer would have found the suspect guilty of two or more serious criminal offences without charging the person and securing a conviction in court, and with the suspect having been denied legal representation in the course of the inquiry save when the suspect’s own evidence was taken. 

This is an unacceptable abrogation of due process and the supplanting of the judiciary.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak reject any attempt to resurrect preventive detention without trial, repeated renewals of such detention without trial, the ouster of the jurisdiction of the judiciary, denial of the rights of suspected persons to due process of the law, such as the right to legal representation and the right to be heard before any adverse decision or direction is made. 

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak call upon the government to withdraw all proposed amendments of this nature, in particular, the proposed Part IVA of the PCA.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are of the view that the answer to the fight against crime cannot lie in re-introducing laws that diminish our adherence to the rule of law, due process and constitutional safeguards  The proposed draconian amendments are not a reflection of the state of crime in our country. Rather it speaks of the inadequacies and inability of the police to deal with crime in a proper way.

It is imperative that the government immediately implements the recommendation of the royal commission of inquiry 2005 chaired by Mohamed Dzaiddin Abdullah and establish the Independent Police Complaints and Misconduct Commission (IPCMC) to redress standards of policing and restore public confidence in the police.

No consultation with stakeholders

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak are extremely disappointed by the manner in which these proposed amendments are sought to be introduced. 

There was no prior notice or consultation on the numerous amendments to 11 legislations with far reaching consequences  These amendments must not be bulldozed through Parliament. 

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak call upon the government to withdraw all of the proposed amendments and to engage in genuine consultation with all interested stakeholders and parties  

The proposed forum on Sept 28, which was originally intended to discuss the prevention of crime generally and which now belatedly appears to have been converted to a public feedback session on the proposed amendments to the PCA and the 10 other legislations, is rushed, contrived and insufficient.

---

This is a joint statement by Malaysian Bar President CHRISTOPHER LEONG, Sabah Law Association President GBB NANDY @ GAANESH and Advocates Association of Sarawak President KHAIRIL AZMI MOHD HASBIE