The Malaysian Bar has urged Putrajaya to withdraw the recently tabled Prevention of Terrorism Bill 2015 (Pota) and bring all other legislation into line with its commitment to respect the rule of law and principle of natural justice.
Malaysian Bar president Steven Thiru said the bill should be withdrawn because the anti-terrorism bill was another repressive law, which he described as a "shameless revival of the Internal Security Act 1960 (ISA)" and other laws that were repealed or revoked in 2011 and 2012 such as the Restricted Residence Act 1933, Banishment Act 1959 and Emergency (Public Order and Prevention of Crime) Ordinance 1969.
He said the Malaysian Bar "abhorred detention without trial", and viewed Pota as "a repressive law that is an affront to the rule of law and repugnant to the principles of natural justice".
"Pota is purportedly directed at persons who are 'engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country or any part of a foreign country'.
"However, because words like 'engaged', 'commission', 'support' and 'involving' have not been defined in Pota, the reach of the legislation is extremely wide and lends itself to abuse.
"It opens up the possibility that almost anyone could be targeted under Pota. We have seen how ISA, which had been meant to deal with the communist insurgency, was used to stifle political dissent and imprison political opponents," Thiru said today.
He said the exclusion of “political belief and political activity" as a ground for detention under Pota was also false comfort.
He said in the past, politicians and political activists had been detained under ISA for activities that were nonetheless viewed as prejudicial to national security or public order.
The Malaysian Bar, he said, was concerned that organisations not registered as political parties under the Societies Act 1966, or not registered under the Societies Act 1966, could also be subjected to the wide powers of Pota.
Steven said they also have issues with Pota conferring "draconian powers” on the inquiry officer tasked with investigating allegations against the accused person and presenting the evidence to the Prevention of Terrorism Board (POTB).
He said the inquiry officer was not expressly defined in Pota, which also excluded the normal rules of evidence and criminal procedure, meaning that the officer might procure evidence by any means.
"There is no provision for POTB to inquire into the officer's report or require further investigation.
"The person accused is also not legally represented before POTB, which has extensive powers including granting a detention order of up to two years or a restricted residence order of up to five years."
Another issue was the "absence of security of tenure that undermines whatever independence POTB purported to have", Thiru said, because members of the board were appointed by the Yang di-Pertuan Agong, following convention, upon the advice of the government.
"Only the chairman is required to have legal experience, and there is no provision that he or she must be, or must be qualified to be a judge.
"We have seen from the practice of the Prevention of Crime Act 1959 (Poca) that the names of the members of the Prevention of Crime Board have not been made public. It is likely to be no different for members of POTB.
"The fact that POTB hearings will not be held in public means, in effect, that Pota will allow secret hearings by a secret panel. There will be no transparency," he said, adding that there was no provision allowing a prospective detainee to be present at a POTB hearing, or for the detainee to be legally represented.
He also highlighted the part that no judicial review of the detention order would be possible under Pota, an aspect he described as "one of the most offensive" in the legislature.
"This violates our constitutional scheme, which invests judicial power in the Judiciary, and is further contrary to Article 8 of the Federal Constitution, which guarantees equality and equal protection before the law.
"The small concession that courts can review procedural compliance is illusory in practice since POTB determines its own procedures."
Steven also said that the government was also proposing to introduce a Special Measures Against Terrorism in Foreign Countries Act 2015, and to amend Poca, the Penal Code, the Criminal Procedure Code, the Prisons Act 1995, and the Security Offences (Special Measures) Act 2012 (Sosma).
When taken as a whole, all these legislative measures, he said, made the introduction of Pota itself wholly unnecessary.
He said the amendments to the Penal Code would enlarge the nature and extent of offences within Part VI that deal with terrorism, and for which alleged offenders must be tried in open court; while Poca amendments that were also opposed by the Malaysian Bar extended its its scope to include terrorists.
"While we have serious concerns about some of these other amendments as well, the combination of these two sets of amendments, together with the new Sosma, adequately address the threat that is posed by terrorism, whether foreign or domestic.
"It is also noteworthy that the amendments to Sosma expand the scope of surveillance and information gathering, which also constitute a violation of the right to privacy. Pota is therefore clearly not required."
Steven also said by passing Pota, Malaysia would be violating the nation's international commitment to abide by United Nations Security Council Resolution 2178, which was passed unanimously in September 2014.
The resolution provides that any measure to counter terrorism by member states must comply with all obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law.
The resolution states that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort.
"It is unacceptable that Malaysia, as a non-permanent member of the United Nations Security Council, has adopted a course of action that contravenes a resolution of that very same body.
"The Malaysian Bar remains steadfastly opposed to detention without trial. As such, we view the Pota as a backward step," he said, reiterating that the government should withdraw the bill. – April 5, 2015.
- See more at: http://www.themalaysianinsider.com/malaysia/article/malaysian-bar-calls-anti-terror-bill-shameless-revival-of-isa#sthash.Bv4hMDuc.dpuf
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