Section 3 – New Preamble
The principal act which provides a preamble for effectual prevention of crime and control of criminals, members of secret society and other undesirable persons has now been amended to provide for the introduction of detention without trial as previously provided in the repealed Emergency Ordinance 1969 and the repealed Internal Security Act 1969. This is by virtue of inserting Article 149.
Article 149 of the Federal Constitution Legislation against subversion, action prejudicial to public order, etc. If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation...any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament...
The Explanatory Statement to the Amendments also specifically mentions the introduction of detention without trial as previously provided in the repealed EO and ISA.
Section 4This section amends the principal act by substituting ‘Peninsular Malaysia only’ to ‘throughout Malaysia’. As the principal act was passed in 1959 when Sabah and Sarawak were not part of Malaysia, it is not applicable to both these states. Hence, this amendment is a positive development and should be supported.
Section 5This amendment introduces the definition of the Prevention of Crime Board which is established under Section 7B. The Prevention of Crime Board takes over some of the role of the Minister.
Section 6Previously, only the magistrate has jurisdiction and now apart from the magistrate, the Sessions Court Judge also has a role to play. This section also introduces the provision of Section 117 of the CPC. Hence, the person detained initially is subjected to the remand proceedings. This section also introduces Section 28A of the CPC which gives rights to the detained to communicate with his relative and/or counsel upon arrest only.
Section 7This section totally deletes Section 5 of the principal act. Under the deleted Section 5, any delay in the proceedings entitled the detained person to be released. This right has been removed.
Section 9This amendment introduces tagging the person with an electronic monitoring device.
Section 10A new Section 7A is introduced which provides for special procedures relating to electronic monitoring device. The Public Prosecutor has the right to apply to the Sessions Court Judge for an Order to tag the person with the electronic monitoring device. A breach of this provision will cause the person to be sentenced to an imprisonment term not exceeding 3 years.
Section 11Section 11 introduces new Section 7B and new Section 7C.
Section 11 – Introduction of Section 7BSection 7B provides for establishment of a Prevention of Crime Board. The Prevention of Crime Board consists of a Chairman who is a judge of the Federal Court/ Court of Appeal/High Court and two other members. They shall hold office not exceeding two years and are eligible for reappointment for another term.
Section 11 – Introduction of Section 7C Section 7C provides the Powers of the Board. The Board has right to issue a Detention Order or a Supervision Order. In relation to Detention Order, it has powers to order detention despite non-conviction.
Section 12This section provides for substituting the word ‘Minister’ in Section 9 of the principal act to ‘the Board’ whereby the Board takes over the role of the Minister. A new subsection is introduced whereby a person detained or a witness in an inquiry cannot be represented by an advocate or solicitor. This provision is repugnant to the Rule of Law and removes the basic human right namely the right of the person to a counsel of his choice.
Section 13This section introduces a new Section 9A whereby the inquiry officer has access to other detainees or prisoners to obtain evidence against the person detained. During this inquiry with other detainees and prisoners, the person subject to the inquiry or his solicitor is not allowed to be present.
Section 14This section amends Section 10 of the principal act to give power to the Board to release the detained person if the inquiry officer is satisfied that there are no sufficient grounds for believing that he is a member of a registrable category and only upon receiving such a report from the inquiry officer.
Section 19This section introduces a new Section 15A which provides that there shall be no judicial review of the finding or decision of the Board except in cases of non-compliance with procedure. This is a removal of a basic right – access to justice and this provision is similar to the repealed ISA.
Section 20This section amends Section 16 to enhance term of imprisonment from 1 year to 5 years if a registered person consorts with another registered person.
Section 23This section provides a new Part IVA which creates a new Section 19A, Section 19B, Section 19C and Section 19D
Section 23 – Introduction of Section
19ASection 19A is in respect of Detention Orders whereby the Board can issue a Detention Order for a period not exceeding 2 years which can be renewed for another 2 years
Section 23 – Introduction of Section19B
Section 19B touches on validity of Detention Orders and the procedure on the serving of the order.Section 23 – Introduction of Section
19CSection 19C provides for the suspension of Detention Orders. It gives power to suspend the order on condition that the person enters into a bond and imposed restrictions and conditions. Non-compliance of the restrictions and conditions gives the Board the power to revoke the suspension.
Section 23 – Introduction of Section
19DSection 19D is in respect of serving imprisonment term. With these amendments, the Prevention of Crime Act 1959 has now metamorphosed to a draconian piece of legislation which has removed all the basic and fundamental rights provided under the Federal Constitution.