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persons has now been amended to provide for the introduction of detention without trial as previously provided in the repealed Emergency Ordinance 1969 and the repealed Internal Security Act 1969.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trial as previously provided in the repealed EO and ISA.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 4
This 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 5
This 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 6
Previously, 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 7
This 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 9
This amendment introduces
tagging the person with an electronic monitoring device.
Section 10
A 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 11
Section 11 introduces new
Section 7B and new Section 7C.
Section 11 – Introduction of
Section 7B
Section 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 12
This 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 13
This 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 14
This 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 19
This 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 20
This 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 23
This section provides a new
Part IVA which creates a new Section 19A, Section 19B, Section 19C and Section
19D
Section 23 – Introduction of
Section
19A
Section 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
Section
19B
Section 19B touches on
validity of Detention Orders and the procedure on the serving of the order.
Section 23 – Introduction of
Section
19C
Section 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
19D
Section 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.
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