Act breaches human rights

JAPANESE entrepreneur and venture capitalist Joichi Ito once said, “Upholding human rights is not merely compatible with fighting terrorism, it is essential.”

The Prevention of Terrorism Act (Pota) is one of the few pieces of legislation in Malaysia that legalises preventative detention and limits several fundamental liberties that the Federal Constitution guarantees.

Much has been said and written about this legislation, notably on its provisions that allow detention without trial, denying the right to fair trial and right to legal representation, to name a few.

However, it must be noted that Article 149 of the Federal Constitution enables the use of preventive detention during peacetime to maintain public order.

Under Pota, Malaysian law enforcers are given the authority to detain terror suspects without trial for a period of two years. A terror suspect can also be remanded for investigative detention for a maximum of 60 days while a magistrate has no discretion to refuse a request for remand.

Undoubtedly, Pota reproduces most of the abusive provisions of Malaysia’s notorious Internal Security Act (ISA), which was repealed in 2012.

A question that needs to be answered is: “Must prevention of terrorism entail the violation of human rights?”

Concerns have also been raised over the law’s potential to be used by the government to repress political opponents, rivals or even ethnic minority groups, as was done before the repeal of the ISA.

In February 2019, the Special Branch Counter-terrorism Unit of the Royal Malaysia Police arrested nine suspects, including six Egyptians and two Tunisians, on suspicion of planning to launch large-scale attacks in several countries.

From July to September of 2019, the police reported the arrests of 16 terror suspects nationwide, comprising 12 Indonesians, three Malaysians and an Indian national. They were charged with trying to establish an ISIS cell in Malaysia and planning attacks in the country and Indonesia.

Bait Al Amanah’s publication in the UUM Journal of Legal Studies (Vol 13[2] July 2022) titled “Must the prevention of terrorism entail the violation of human rights? The case of Malaysia’s Prevention of Terrorism Act” elucidates that the prevention of terrorism cannot be carried out at the expense of fundamental human rights.

Pota must therefore be reformed consistent with international human rights standards and international obligations.

First, the ambiguity in the definition of terrorism and its acts should be eliminated.

Second, pretrial investigation processes must be improved. Detention must adhere to globally recognised due process requirements. When personal liberty must be violated, it must be done very carefully and only in the most dire of circumstances. The length of pretrial detention must be reviewed and a reasonable limit to such detention must be considered.

Third, every procedural requirement that interferes with the right to a fair trial must be amended. Malaysia must be prepared to embrace a judicial process that is just, fair and credible.

Fourth, provisions relating to the presumption of innocence must follow recognised principles of criminal law. Since terrorism-related offences are crimes, it is better to handle them in accordance with criminal law procedures.

Fifth, to make sure that police powers are exercised judiciously, a more effective supervision system is needed. Pretrial investigations must be carried out in accordance with the strictest requirements of due process. These control measures will stop the inconsistent application of laws and regulations as well as arbitrary imprisonment and discriminatory actions.

While protecting Malaysian citizens from future terrorist attacks should be the government’s priority, measures to combat terrorism must also be in line with the liberties guaranteed by the Constitution and democratic values while respecting the administration of justice.

SIMRAATRAJ KAUR DHILLON

Research and advocacy analyst

Bait Al Amanah