Amendments to Prevention of Crime Act 1959 eliminate due process protections — Malaysian Bar

AUGUST 12 — The Malaysian Bar remains steadfastly opposed to detention without trial.  As such, it views the passing of the Prevention of Crime (Amendment) Act 2017 (“POCAA”) in the wee hours of 10 August 2017 as yet another backward step that is an affront to the rule of law and abhorrent to the principles of natural justice.

When the Prevention of Crime Act 1959 (“POCA”) was comprehensively amended and expanded in 2014, the Malaysian Bar already raised deep concerns about the provisions that allowed for the reintroduction of detention without trial and restricted residence/internal banishment.  In this regard the provisions contained therein were no different from those contained in the Internal Security Act 1960 (“ISA”), Restricted Residence Act 1933, Banishment Act 1959, and Emergency (Public Order and Prevention of Crime) Ordinance 1969, all of which had been previously repealed or revoked.

The Malaysian Bar also raised worrisome doubts about the strength of the due process and judicial review provisions, and other forms of “checks and balances”, which we deemed illusory since the Prevention of Crime Board (“POCB”) would be the author of its own procedures and processes.

The POCAA now confirms that our long-held concerns were not misplaced.  What little protection was afforded to a detainee has now been significantly removed and/or seriously compromised.

The POCAA takes away the right of a detainee to appear and make his/her case (for non-detention) before an Inquiry Officer appointed by the Ministry of Home Affairs.  It is this Inquiry Officer who is responsible for presenting the case for detention to the POCB.  The detainee is now deprived of his/her basic right of natural justice to be heard at the earliest possible instance, to know the allegations made against him/her, and to respond to them.

Instead, it will be the police who will now conduct the investigation and present their report to both the Inquiry Officer and the POCB.  The principle of having an independent Inquiry Officer to oversee the case is removed in all but name.

This denial of due process is further compounded when a detainee is now not able to challenge the recommendation made by the Inquiry Officer to the POCB.  This is because the right of a detainee to know the decision of the Inquiry Officer has been removed.  An Inquiry Officer is, in effect, given absolute liberty to make recommendations based on information submitted by the police to the POCB, without any input from the detainee.  There is also no right of a detainee’s legal counsel to make representations or to appear either before the Inquiry Officer or the POCB.  The POCB is, in turn, given wide powers to affirm or reverse the Inquiry Officer’s recommendations, again without the POCB having first heard from the detainee.  Thus the detainee is denied the right to be heard.

Detention without trial laws are not only abhorrent to the rule of law and the principles of natural justice, but are also counterproductive from a security standpoint.  Lack of transparency in detention without trial undermines public trust in law enforcement and reduces cooperation with authorities.  Detention without trial also frustrates criminal investigations by encouraging police to make an arrest without sufficient evidence to maintain a successful prosecution in open court. 

The Malaysian Bar reiterates our call on the Malaysian Government to repeal POCA in its entirety, and to bring all other prevention of crime legislation into line with its international commitments to respect the rule of law and natural justice.

* 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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