What You Think

Those who sacrifice liberty for security deserve neither — Nabila Habib

NOVEMBER 13 — Preventive detention may be defined as detention without judicial intervention or sanction (1) or without a trial. Some (2) of the current preventive detention laws (hereinafter referred to as “PD laws”) active in Malaysia are Sosma (3), Pota (4), and Poca (5).

These laws were passed pursuant to the very controversial Article 149 of the Federal Constitution which holds valid — albeit in certain named but broad circumstances (6) — the legal provisions made by Parliament even if they are in direct contravention with any of four of our fundamental liberties, namely personal liberty (7); freedom of movement (8); freedom of speech, assembly and association (9); and rights to property (10).

It is to be understood that these PD laws generally do not create new offences — which subjects them within the scope of procedural laws and not substantive laws. The basis of enactment of these different procedural laws incite a curiosity, since there are, in place, already procedural laws which are ordinarily and more commonly used, such as but not limited to the Criminal Procedure Code and the Evidence Act. The main differences between these abovementioned PD laws and the usual procedural laws are: — the order of detention and trial, length of detention prior to production before the Court, need of a warrant manifesting an existing ground of arrest, and the availability of judicial review.

It is feasible to the human mind that the imprisonment of a person is to happen only after his conviction of an offence by a competent Court. This is in line with the rule of law that a person is innocent until proven guilty. However, a person detained under PD laws is “imprisoned” before he is produced before a Court to debate on his liability. This is, thus, contradictory with the concept of presumption of innocence and is in violation of an international human right (11). (However, Sosma differs from the other PD laws in which there is a trial upon the expiry of the first remand. (12)) Moreover, under all the three PD laws, a warrant is not needed for police to make an arrest (13), and bail is not available. This means that throughout police investigation and before establishment of a case against the accused, he shall remain in police custody.

Another noteworthy element is the unavailability of judicial review for the detentions made under the PD laws save for those on procedural grounds. This is provided for by what is termed as ouster clauses in each of the said PD law (14). This means that the most fundamental liberty guaranteed for all citizens under Article 5 of the Federal Constitution is tainted in its utmost degree. This is a clear violation of human rights as the detaining authority has an absolute discretion to arrest and detain a person upon “suspicion”. This creates a vulnerability to the abuse of power as suspicion has a broad meaning and is left undefined in the provisions. As has been said, “Power corrupts, and absolute power corrupts absolutely (15).” One shall rightly question the need of ouster clauses if the arrest and detention are made bona fide.

Under the usual laws, a person subsequent to his arrest can only be detained up to 24 hours to assist investigations (16), and, should there arise a need of further time, the police may apply to the Court for a remand order for a maximum of 14 days (17). On the other side of the coin, Sosma allows for a detention up to 28 days (18) , a delay to his consultation with his legal counsel for up to 48 hours (19) , and even the attachment of an electronic monitoring device (EMD) on the accused subsequent to release (20) for investigative purposes. Poca and Pota both allow for a detention up to 60 days (21). Here, the efficacy of the national police force comes into question so as to justify their need of a month or two or three to complete an investigation to prove an offence, even though the arrestee is already in their custody. Isn’t there a robust possibility of improvisation of the said efficacy to the effect that our police force no longer need to be crutched with extra procedural laws to merely complete investigations?

It is also often argued that the PD laws should be excused and its injustice ignored for the reason that it is not desired to be a permanent law. While it is correct that Sosma, initially being a replacement of the draconian ISA (22) , is to be renewed every 5 years (23) , there is a vast chance that there will be an interminable renewal and that the law is here to stay. Impermanence thereof is not an excuse nor a justification.

Going back to the earlier point that PD laws are merely procedural laws, it is submitted that a surprising number of people err in their notion that if these PD laws were to be repealed, the offences would go unpunished. This is untrue due to the fact that most of the offences dealt with by the PD laws are created under many Acts aside of the PD laws themselves — for example, Chapters VI, VIA, and VIB of the Penal Code enumerate offences against the State, terrorism, and organized crime respectively. Although there is no unanimous agreement on whether these offences should be punished in the manner that they are now, or be punished at all, that shall be the topic of another discussion. What we should agree on is that the PD laws are unnecessary.

Another justification often laid by the proponents of PD laws are that they are made to overcome modern era offences such as terrorism. With all due respect, the offences which are governed by the PD laws are anything but new. Have we forgotten Mat Saleh, Dol Said, Tok Janggut, Ahmad Boestamam, Burhanuddin Al-Helmy and the other radicals who fought against the then ruling force? If the same was done today, they would perhaps be guilty of offences under Part VI of the Penal Code. The “modern offence” contention is therefore baseless and false. This shall then support the view that there need not be special procedures to deal with the subject matter of the current PD laws.

Succinctly put, it is opined that the machinery of justice could still work just as well if these PD laws were to altogether be repealed and resort is made to the usual procedures, provided there be an augmentation of efficacy within our police forces via means such as but not limited to proper training to handle these incidents. There must to be a general reluctance on the part of the authorities to encroach onto the human rights of the society and this shall be made only as a final resort, when all other efforts have been exhausted. When there are other options and where the need of these special laws have not been proven to the point that renders the usual procedures ineffective, it is cruel to snatch human dignity in the way that is currently done. Those who sacrifice liberty for security deserve neither (24).

1. Derived from http://www.malaysianbar.org.my/human_rights/detention_without_trial_laws_in_malaysia_.html.

2. The Dangerous Drugs Act (DDA) 1952 is intentionally excluded from this discussion.

3. Security Offences (Special Measures) Act 2012.

4. Prevention of Terrorism Act 2015.

5. Prevention of Crime Act 1959.

6. These laws can be made to counter — inter alia — organised violence, excitement of disaffection against the King, promotion of feelings of ill-will and hostility between races etc., and actions prejudicial to public order.

7. Article 5, Federal Constitution.

8. Article 9, ibid.

9. Article 10, ibid.

10. Article 13, ibid.

11. Article 11, Universal Declaration of Human Rights, United Nations.

12. 2016 Overview, Human Rights Report Malaysia, SUARAM.

13. Sections 3(1) and 4(1) Pota and Poca, and Sosma respectively.

14. Section 19 Pota and Section 15A Poca. Interestingly, Sosma allows judicial review.

15. Lord Acton of England.

16. Section 28, Criminal Procedure Code.

17. Section 117, Criminal Procedure Code.

18. Section 4(5), Sosma. This period used to be 60 days under ISA. There exists a doubt as to whether an indefinite renewal of the 28-day period is allowed.

19. Section 5(2), Sosma. The police officer whose authorization is needed shall be of the rank of not below than Superintendent of Police.

20. Section 4(6), Sosma.

21. Sections 3(2), 4(1)(a), and 4(2)(a) Poca and Pota respectively. (1+21+38)

22. Internal Security Act 1960.

23. Section 4(11), Sosma. It was last renewed earlier this year.

24. Benjamin Franklin

* Nabila Habib is a law student of Ahmad Ibrahim Kulliyah of Laws, IIUM.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

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