Of prevention of terror and due process

THE Internal Security Act (ISA) was enacted in 1960 and remained in force right until its repeal in 2012. The Act was criticised for several reasons, chief amongst them being the wide and arbitrary detention without trial powers exercisable by the police and the Home Minister without judicial scrutiny. When the Government announced that the law would be repealed in 2011, many harboured hope that we would see the end of such legislations, which allow for detention without trial.

The ISA was replaced with the Security Offences (Special Measures) Act (Sosma). Sosma allowed for limited preventive detention for investigative purposes of 24 hours initial detention and a further 28 days authorised by a police officer above the rank of Superintendent. One can certainly make the argument as to whether 28 days is too long for purposes of investigation and a case can certainly be made that the 28 days should be authorised by the Court instead of the police, but in terms of powers to detain, Sosma was an improvement over the ISA.

Then last year, amendments were made to the Prevention of Crime Act. The provisions of the Prevention of Crime Act now read like those of the Internal Security Act. There are provisions for initial detention for up to 60 days and provisions for a detention order, issued by what is known as a Prevention of Crime Board, for up to two years renewable indefinitely. Such powers to detain are no longer for purposes of investigation but punitive measures for a person who is not even charged in Court. It would appear that detention without trial has made a comeback.

Last week, the Government tabled the Prevention of Terrorism Bill. The Bill was tabled together with another new Bill and five other amendments to existing Acts. They are packaged as anti-terror legislations to deal with the phenomenon of “foreign fighters” (locals who go overseas to engage in terror activities) and the Islamic State (IS) threat.

We have been told that new legislations are needed to deal with foreign fighters and IS. What we have not been told is why the existing legislations are insufficient. The Government has not given its detailed justification as to why the provisions of Sosma, for all the criticisms, are not enough to deal with emerging terror threats.

The Prevention of Terror Bill provides that after the initial 24-hours detention, the suspect shall be brought before a Magistrate who shall after being provided with a written statement by the police that there are grounds to believe that the suspect is involved in a terrorism offence, order the person to be detained for up to 21 days. After that, the person shall be brought again before the Magistrate, and upon being provided with a statement by a Deputy Public Prosecutor of the same grounds, detain the person for a subsequent period of 38 days. It may seem that there is judicial oversight in these 21 days + 38 days detention, but in actual fact the Magistrate is nothing more than a “rubber stamp”. The Magistrate is not given any information or material or substantiated grounds for the detention of a suspect.

After the 21 days + 38 days detention period has passed, the suspect’s case may be brought before a Prevention of Terrorism Board. The Board may order the detention of a suspect after considering reports, including that of the “Inquiry Officer”, is satisfied with respect to any person that such person has been or is engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country and that it is necessary in the interest of the security of Malaysia or any part of Malaysia. This detention order may be up to two years, renewable indefinitely.

These provisions, which allow for detention, are similar to those contained in the ISA. More importantly, it does appear that the Bill purports to oust the Courts’ jurisdiction to review the decision of the Board, unless it relates to procedure. Again, this is similar to the provisions of the ISA. It is no wonder that some are calling it ISA 2.0.

Make no mistake; the IS threat is real. Terrorism is deplorable and abhorrent, and eradicating terrorism is something which civil society would not hesitate to support. But society must not forsake human rights and fundamental liberties in the name of terror prevention. Any anti-terror legislation must have sufficient safeguards in order to prevent any abuse and to ensure that human rights and fundamental liberties are upheld.

There are many other criticisms of the Bill apart from those listed above. But the point to be made is this: it is a fundamental principle of the Rule of Law that a person is innocent until proven guilty. Due process must be adhered to, a suspect must be charged, and the charge must be proven in Court. The suspect must also be allowed to meet that charge in Court. Then, and only then, can a person be incarcerated and punished.

If we purport to be of a higher moral standing than the terrorists, who have scant regard for due process and the Rule of Law, then we must not abandon these principles in our efforts to combat terrorism.

> The views expressed are entirely the writer’s own.
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POTA , terror , law , ISA , opinion


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