KUALA LUMPUR, April 14 ― The Prevention of Terrorism Bill passed in the Dewan Rakyat last week to fight the growing global threat of terrorism also curbs basic civil liberties, which is why a firestorm continues to surround the preventive detention law.
In order to sidestep basic guarantees like free speech and freedom of association under the Federal Constitution ― namely Articles 5, 8, 9, 10 and 13 ― the government cited Article 149, which allows Parliament to enact special laws to stop or prevent threats to security and public order.
Such laws, the provision says, do not have to be consistent with these fundamental freedoms.
While ministers have repeatedly promised that the new law, often referred to by its acronym “Pota”, will only be used against terror suspects and not political dissenters, history has shown differently.
Do Malaysians who inadvertently fall foul of Pota then have legal recourse to challenge this law in court?
Legal experts contacted by Malay Mail Online say yes.
Why Pota’s constitutionality can be challenged
Lawyer Syahredzan Johan believes that even though Article 149 was cited, the provision sets a precondition for the government to identify a specific body that poses a serious threat to national security.
“But I think the bigger question is whether the requisite situation that invokes Article 149 exists at this point of time.
“Because if it doesn’t exist, then the government's use of Article 149 would be unconstitutional and the Bill itself becomes unconstitutional,” he said, referring to the proposed anti-terror legislation that must still pass through the Dewan Negara before it can properly become law.
To give an example, the civil liberties lawyer compared Pota to the now defunct Internal Security Act (ISA), which he noted was also enacted under Article 149.
He pointed out that the ISA was also created in 1960 as a response against a specific terror group following the end of World War II and the then-Malayan federation’s independence ― communist insurgents.
“You need to really actually state in the preamble of the Bill who is the threat. It can’t be shadowy people, people with no names, no identity. You need to identify at least who are these people that are threatening Malaysia,” Syahredzan said.
He pointed out that the definition provided in Pota was vague, adding that Malaysia currently was not facing a clear-cut case of war.
What constitutional challenges have been successful?
Examples of laws that have been successfully challenged and declared unconstitutional in recent years include the detention of PKR state lawmaker Nik Nazmi Nik Ahmad under the Peaceful Assembly Act (PAA).
In a landmark decision in April last year, the Court of Appeal unanimously ruled that it was unconstitutional to criminalise spontaneous public assemblies, striking out the PAA’s Section 9(5) that imposed a maximum RM10,000 fine and effectively acquitting Nik Nazmi of a PAA charge.
Syahredzan also cited the appellate court’s unanimous ruling on Section 66 of the Negri Sembilan Syariah Criminal Offences Enactment in a transgender case last November and the 2011 case of four Universiti Kebangsaan Malaysia students who challenged Section 15(5) of the University and University Colleges Act as a violation of their constitutional freedom of expression under Article 10 and won.
How to challenge Pota in court
To challenge Pota’s constitutionality, Syahredzan said terror suspects could sue for unlawful detention or file for a habeas corpus application ― where the court decides on the legality of the detention order.
“Of course, they might raise the ouster clause, but then the lawyer would argue that the detention is unlawful because the whole Act is unconstitutional,” he said.
The “ouster clause” in Pota removes the courts’ jurisdiction to review all decisions made by Pota’s Prevention of Terrorism Board’s (POTB) except in limited situations of procedural breaches.
“If they say we are going to use it just for terrorists, we are not going to use it against dissidents, why is it that you oust jurisdiction of courts by way of ouster clause in Bill? Why is it you do not allow the courts to review decision of the POTB?” he asked.
He further argued that the courts should be allowed to review the detention order at the very least, to decide if the action by the executive arm of the government was valid or was misused against Malaysians, pointing that Article 149 of the Federal Constitution also granted the POTB “wide and arbitrary” powers.
“The very fact that the courts can’t review detention orders by the Board is already taking away a very important safeguard which is within the Constitution and that's why there is concern that it will be abused,” he said.
Constitutional lawyer Firdaus Husni said the Malaysian Bar views “ouster clauses” as being unconstitutional as it encroaches on the judiciary’s powers.
The head of the Bar Council’s constitutional law committee said such clauses go against the Federal Constitution’s basic structure and “the principle of separation of powers providing for a system of checks and balance”.
While she acknowledge the validity of Pota as a law under Article 149, Firdaus said suspects can still challenge their detention on grounds of malice or “bad faith”, and cited the 2002 Federal Court ruling in the case of politician Mohamad Ezam Mohd Noor who sued the Inspector-General of Police.
She pointed out that Pota violates Article 8, Article 5(1), Article 5(3) and Article 9, all of which cover equal protection of the law, life and liberty, legal representation and freedom of movement respectively.
Can Pota even be gazetted as law if it is unconstitutional?
Firdaus confirmed that Parliament is able to make laws regardless of their constitutionality as long as they have the necessary numbers of lawmakers to vote it through, as the law’s constitutionality and validity can always be determined later in court.
“Yes, despite its constitutional issues and the ousting of judicial review, the Bill on the Prevention of Terrorism Act can still be passed in the Parliament once it goes through the proper legislative process,” she said.
So will Malaysians have to wait until Pota is formally approved by Parliament, gazetted as law and used against them before they finally get to drag it to court for a constitutional challenge?
Yes, unless the federal government decides now to listen to the advice of all three of the country’s legal professional bodies to “withdraw Pota from being tabled” in the Dewan Negara.
The Dewan Negara, also known as the upper House of Parliament, is currently in session and is scheduled to end this April 28.