PCA changes ‘repugnant’, reviving ISA and EO, say Bar associations

KUALA LUMPUR, Sept 27 — Malaysia's three professional bodies for lawyers condemned today the proposed amendments to the Prevention of Crime Act 1959 (PCA), saying that the new law effectively resurrects the Internal Security Act (ISA) and the Emergency Ordinance.

The Malaysian Bar, the Sabah Law Association and the Advocates Association of Sarawak called the proposed changes to the PCA “objectionable and repugnant to the rule of law”, and urged Putrajaya to withdraw the amendments that allow for detention without trial and removes the powers of the judiciary.

“These amendments violate the rule of law and ignore due process and infringe upon our constitutional rights,” the three groups said in a strongly-worded statement today.

“Despite assurances by certain quarters of the government that laws similar to the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Internal Security Act 1960 would not be resurrected, the government is now seeking to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via the Prevention of Crime (Amendment and Extension) Bill No. 8 of 2013 the most offensive elements of these repealed legislations,” they added, referring to two colonial-era laws that were repealed by the Najib administration in 2011.

They noted that the proposed amendments to the PCA allow suspects to be detained without trial for up to two years, permit the repeated renewals of such preventive detention orders, oust the jurisdiction of the judiciary, and violate the rights of suspects, such as the right to legal representation and the right to be heard.

Neither does the suspect have the right to apply for substantive judicial reviews against preventive detention orders, only for reviews on procedural grounds.

“The amendments are an affront to the judiciary,” said the three groups.

They noted that permitting judicial reviews on procedural grounds is “meaningless” as the amendments state that the Prevention of Crime Board can set its own procedures as it wishes.

The law groups also stressed that the so-called safeguards for preventive detention orders - which are allowing the Board, instead of the home minister, to order detention without trial; and allowing the right to apply for a review to the High Court against the Board's direction for preventive detention or its renewals - are “insufficient and 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,” they said.

“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,” they added.

The groups noted that the idea for the Board was “clearly borrowed” from the ISA that had similarly provided for an advisory board.

They also said that the right of review by the High Court against preventive detention orders or the renewals of such orders are “rendered illusory”, as the grounds for the Inquiry Officer's findings and the Board's decision are not revealed to the suspect, and the court may be prohibited from receiving such information on the basis that it would be against public interest.

The groups also called Section 7C(a)(i) of the PCA “alarming and abhorrent”, noting that the Board can detain someone without trial if that person has committed two or more serious offences, even if that person has not been charged or convicted of such offences, as long as the inquiry report has sufficient evidence.

“This means that the Inquiry Officer has taken on the role not merely as an investigator or inquirer but that of prosecutor and judge...This is an unacceptable abrogation of due process and the supplanting of the judiciary,” they said.

“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,” they added.

The three groups called on Putrajaya instead to set up the Independent Police Complaints and Misconduct Commission (IPCMC), which was mooted by the 2005 royal commission of inquiry chaired by former Chief Justice Tun Mohamed Dzaiddin Abdullah, to restore public confidence in the police and to improve policing standards.

“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,” they said.

“There was no prior notice or consultation on the numerous amendments to 11 legislations with far reaching consequences,” they added, referring to the latest whirlwind of amendments to several anti-crime laws tabled by Putrajaya in Parliament last Wednesday.

The Bill of amendments to the PCA appear to be a bid to crack down on the criminal underworld after a recent string of shootings and violent crime.

Human rights activists, however, fear that the law signals a return to the days of the ISA, where they say the security law was abused to quell dissent against the government.