Is bringing back preventive law the 'right balance'?

When Prime Minister Datuk Seri Najib Tun Razak announced the repeal the Internal Security Act(ISA) 1960 and the Emergency Ordinance 1969(EO) on the eve of Malaysia Day 2011, many expected a return in some form or another.

However, the jury is still out on whether the latest amendments to the Prevention of Crime Act 1959 (PCA) is akin to a ‘new ISA' reminiscent of its 'draconian' reputation.

For those who have looked at the Bill tabled for first reading in Parliament yesterday, a few main things are clear:

• The new amendments allows for an indefinite detention without trial in two-year increments. These elements similar to both the EO and ISA. (The old PCA only allowed up to 71 days remands)
• Instead of a Minister, a new Prevention of Crime Board—chaired by a current or former judge above the rank of High Court and two others— will hold an inquiry on suspects and can issue detention orders on those found guilty
• A person can be registered under PCA for offences including involvement in triad activities, drug trafficking and other organised crime.
• The decision by the three-member Board, except on procedures of the proposed Act, cannot be challenged through a judicial review

For the Government, the PCA does not represent a return to the ISA-era. As Home Minister Datuk Seri Ahmad Zahid Hamidi puts it, the amendments were “transformational” rather than “draconian”.

Zahid, also, expressed openness to discuss and debate on the amendments.

For most Opposition members, including PKR’s Padang Serai MP and lawyer N Surendran, however, it is a regression to the days when ISA was wielded to silence political opponents.

But the question is this: If laws are meant to protect the rights of people, does this new proposed law protect more people than it potentially harms?

For lawyer-activist Edmund Bon, the new Bill was “an attempt to perpetrate a fraud on Parliament and on the people”, saying that the Prime Minister himself said that the government was against bringing back preventive detention.

“(But) the provisions bring back in almost 99% of the original form of the emergency ordinance and ISA,” claimed Bon.

He said that if passed, the law would be “unconstitutional” because the people who are going to be detained under the law are not people who are convicted of a crime.

Bon also said that these “draconian measures” were uncalled for as the country is not in a state of emergency, a requirement to invoke Article 149 or 154 of the Federal Constitution.

“Is the government saying we are in a state of emergency, can you show us evidence to that?”

For Bon, the solution was simple: “Withdraw the bill...or at least do it after the UMNO elections."

On the other side of the fence, senior criminal lawyer, Akberdin Abdul Kader said that these amendments were timely.

Akberdin said that ‘there is no doubt’ that there has been an increase in crimes committed by ex-EO detainees.

“I fully support this legislation, this will control and prevent abuse by the authorities where in those days they don’t like you they can simply just pick you up. The earlier laws are more open to abuse,” said Akberdin.

The former magistrate said that the Minister use to act as a “rubber stamp” and will usually act on the recommendations of the police.

He said that having sitting judges to preside over the inquiry will make things “more transparent and based on actual occurrences of the allegations” of a suspect.

“Now with a serving judge, presiding the board, I am very sure they will be very meticulous on the compliance of the requirements. This time around, they will ensure justice is done in the interest of the public.”

Akberdin added that in any case, the constitutionality of the new proposed law can be challenged and the Federal Court can shoot down if the law was ultra vires of the Constitution.

For one of the most vocal groups against preventive laws, Abolish ISA Movement (GMI), the new propose legislation did not have enough “check and balance”, but instead brought back elements that the movement has fought for years.

GMI president Syed Ibrahim Syed Noh said that these elements include detention without trial and absence of a chance for judicial review.

“In this case, whether it is the home minister or judges, at the end of the day, a person cannot defend himself. There is no right to trial. Defence counsels, prosecution, all these things are not applicable here.”

Syed said that he had wants to ask: “Who picks the judges?” and “How do you determine the offence to warrant a detention or mere supervision(Where a Sessions Court judge can approve the use of an electronic monitoring device on an offender)?”

Recently, Prime Minister Datuk Seri Najib Tun Razak himself pondered upon the usage of preventive laws, saying: “The only problem for preventive law is that, how do you arrest someone if a crime has not been committed? If (it is) on mere suspicion, is it enough (sufficient) to arrest somebody on the basis of preventive law?”

Najib said that the government was both concerned about bringing down the crime rate and also possible abuses of human rights in the country.