Cast your mind back a few years ago to that historic speech by our Prime Minister on the eve of Malaysia Day. The government announced that the Internal Security Act (ISA) will be abolished and that it will move a motion to end the three declarations of Emergency in Parliament, along with other democratic reforms.
The government stuck to its word: the ISA was abolished and Parliament passed a motion to end the Emergency. With that the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO), a law promulgated under the Emergency, ended 6 months after the motion was passed by Parliament.
The ISA and EO, when it was in force, allowed the government to detain a person without trial. There are 2 types of detention. The first is detention by the police. They have powers to detain a person right up to 60 days. The second is detention by the Home Minister. The Home Minister may issue a detention order to a person who is detained by the police. This detention order is for a maximum period of 60 days, renewable indefinitely.
The detention powers under the ISA and EO are powers exercised by the government, and not the Courts. The government does not have to prove that the detainee is actually a threat to national security or public order. The government does not need to gather evidence, charge the person, tender this evidence in Court and prove that the person is guilty of a wrongdoing.
The person meanwhile has no means to defend himself from the accusations against him. In fact, most of the time he does not even know what constitutes the evidence against him.
That is why detention without trial is so repugnant. It runs counter to the very basic principle of the criminal justice system that one is innocent until proven guilty.
It is also contrary to the rules of natural justice; no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
Now, the spirit of the ISA and the EO is back with a vengeance. The Dewan Rakyat recently passed the amendments to the Prevention of Crime Act (PCA). These amendments introduced to the PCA the power to detain a person for up to 2 years, renewable indefinitely, just like the ISA and EO.
The difference is that this power is not solely exercised by the Home Minister but by a Prevention of Crime Board comprising of 5 people. However, this is designed to be wholly dependent upon the report of the Inquiry Officer.
The Board will have no power to inquire into, or re-examine, the accuracy and veracity of the findings of the Inquiry Officer and the grounds for the said findings. As such, the Board, when exercising its discretion to direct a preventive detention, will therefore effectively bound by the report of the Inquiry Officer.
What will compound matters further is the ouster clause in the amendments which means that the decisions of the Board cannot be challenged in Court on merits unless there is procedural non-compliance.
The power to detain without trial is a very powerful tool in the hands of the government of the day.
We have seen both the ISA and EO abused; we have seen activists, political leaders, bloggers and journalists detained under these laws in order to stifle political dissent. The government has assured us that these powers will not be abused. But the same assurance was made when the ISA was tabled all those years ago and that did not stop the abuses. Are we now supposed to hold on to the government’s words that the powers under the PCA will not be used for political purposes?
These amendments will be tabled before the Dewan Negara soon and will be passed. It will become law of the land. The fight begins again, the decades-long struggle by civil society and the Malaysian Bar against laws that allowed for detention without trial. We thought it ended with the ISA and the EO. We thought wrong.
Welcome back, detention without trial. We will fight you again. The next time, your end will be permanent.
The views expressed are entirely the writer's own.