Do we really need preventive detention?

COMMENT Like the notorious Internal Security Act (ISA), which historically had been abused to hold political dissidents without charge, we opine that the Prevention of Crime Act (PCA) may merely do little to curtail crime but wil surely threaten civil liberties and human rights. 

Under the PCA, the indefinite detention without trial has not only been resurrected, but the enforcement of PCA would also be further extended to include Sabah and Sarawak. 

azlanIn addition, there are provisions for presumption of guilt and prohibition of substantive legal recourses or judicial review, meaning that the detention order cannot be challenged in court, as well as to deny legal representation to the detainee except when his/her own evidence is taken during the inquiry process. 

These amendments blatantly violate key articles of the Universal Declaration of Human Rights (UDHR) as it denies the accused the right to a full and fair trial in an open court. 

Articles 9, 10 and 11 of the UDHR articulate that: “No one shall be subjected to arbitrary arrest, detention or exile”; “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”; and “(1) everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” 

No judicial review allowed on board decision

As a member of the United Nations, Malaysia has failed to uphold the fundamental freedom and human rights mentioned in the UN Charter.

Furthermore, there is also a board, namely the Prevention of Crime Board, established under the newly-minted PCA. With the creation of this board, the arbitrary power of the home minister is now removed and vested in an equally arbitrary proposed three-man board led by either a Federal Court judge, a Court of Appeal judge or a High Court judge. Later, the number of advisory board members was increased from three to five members. 

The board can make detention order for a period of two years if it believes that the registered person has committed two or more serious offences, whether or not he is convicted thereof, if the inquiry report finds sufficient evidence to support such finding, or if he contravenes a supervision order. 

In addition, the newly-introduced Section 15 A(1) explicitly states that there is no judicial review allowed against the decision of the board in relation to the supervision power, but only applicable on matters concerning the board’s compliance with procedural requirements. 

Contradictorily enough, the procedures are in fact determined by the board itself. Another grey area is that while Section 15A(1) precludes judicial review of the board’s discretionary powers, Section 19A(2) allows the High Court to review of the board’s decision when ordering a detention or extending a registered person’s detention period.

‘Detention without trial crucial and essential?’

Do we really need detention without trial to combat skyrocketing serious crime?

azlanThe rationale of the authorities is that the repealed Emergency Ordinance (EO) and ISA have served the country well, particularly against criminal organisations, and thus pushing for the amendments to PCA to bring back certain elements of the law, namely detention without trial, is crucial and essential.

Before this, Home Minister Ahmad Zahid Hamidi had promised to present data and statistics for Parliament and the public to justify his statement that 90 percent of organised crimes were carried out by ex-detainees who were held under the Emergency (Public Order and Crime Prevention) Ordinance 1969 (EO), to prove that the repeal of EO and ISA was the factor for the spike in hardcore crime.

Yet, now that the PCA was passed, there is no empirical evidence in sight. 

The perplexing question that remains is, how effective is detention without trial in combating crime? There is an important fact to be noted here that EO had never proved any of its detainees wrong in any court in Malaysia ever since its inception. In other words, none of the EO detainees were convicted by the court for the reason they were detained. 

This explains why the repeal of EO enabled the just-released 2,600 EO detainees and their loyal followers, altogether accounting for some 266,000 criminals, to roam the streets, as suggested by the home minister. 

Conspicuously, the root cause of the crime surge is not the repeal of either EO or ISA, but are precisely law enforcement process and the judicial process that have been crippled for decades in this country, as pointed out by KPRU in a previous analysis titled ‘Two Cases per Week on Average for the First Seven Months of 2013: Gun-killings are not merely a security issue’. 

Such utterly poor policing is the main factor for those seemingly guilty suspects yet to be arrested and charged in court with irrefutable evidence. Moreover, the prevailing preventive detention law should be recognised as a crutch that weakens law enforcement, which comprising the process of investigations, evidence collection, prosecution and judicial proceedings. 

In short, what Malaysian citizens need is not a convenient tool or temporary measure for the executive to simply persecute individuals in addressing the spate of crime, but essentially, a high-quality policing that is capable of curbing the crime rate in the long run without violating the fundamental rights of citizens.

Part I: Rakyat always the victims of Umno’s power struggles

WILLIAM LEONG JEE KEEN is Member of Parliament for Selayang. Kajian Politik untuk Perubahan (KPRU) is a critical research institute engaged in research and dialogue to shape Malaysia’s future.

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