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Guest Post: Pre-trial detention and Malaysia's Prevention of Terrorism Act 2015

editor - June 25, 2015 - Pre-trial detention

Bar_Council_Malaysia_Teoh_Beng_Hock_dalam_kenanganMalaysia has seen a long history of laws that empower the government to detain people without trial. The notorious Internal Security Act 1960 (“ISA”), which allowed for preventive detention for up to two years, was enacted with the purpose of containing the Communist insurgency in Malaya (subsequently Malaysia). However, persons who were detained under the ISA included political opponents and social activists. Some were detained for two years; some less, some more. During that tenure in detention, none were afforded a trial and were thus punished without the sanction of an independent judiciary. The Security Offences (Special Measures) Act 2012 ("SOSMA”) was drafted with the aim of combating terrorism, and the provisions there are worded exactly just for that. The ISA was subsequently repealed as it was regarded as law that was not needed and a law that was misused. SOSMA allows for a maximum period of detention without trial for 29 days. The person arrested would either have to be released or charged in a court of law. 29 days is sufficient for the security authorities to conduct proper investigations leading to a charge under Malaysian penal laws. Yet, even after the repeal of the ISA, Malaysians were still living in its shadow. Whispers and chants by certain segments of society on the need for legislation providing for detention without trial were audible, and commanded a certain respect with our present government. If one were to read the title of the Prevention of Terrorism Act 2015 (“POTA”), it would seem that this is a legislation that is specifically designed to combat the threat of terrorism. But a closer inspection of the POTA would reveal that the provisions are wide and more draconian than the ISA. The threat of terrorism is real and should not be taken lightly. Rightly so, there ought to be legislation that can curtail this threat. This is why we have SOSMA and terrorism offences in the Penal Code. SOSMA and the Penal Code are sufficient to deal with terrorism. There is no need for POTA. So why then is POTA enacted? It is superfluous since the laws for combating terrorism exist in the Penal Code and procedures to address terrorism are provided for in SOSMA. The answer to this is that POTA, with its widely drafted provisions, can be used against dissidents and opponents of the government. People can be detained for up to 2 years, based on suspicion of having links with a terrorist organisation. Further, these detention orders cannot be challenged or reviewed in Courts; completely extinguishing the function of the judiciary in upholding the rule of natural justice. Any safeguards in POTA are purely illusory. POTA is there not to safeguard our security but to insulate the government of the day from being accountable to the people. In short, POTA is an ISA in disguise and is worse than the ISA. The days where Malaysians live in a climate of fear under the ISA has returned.

This is a guest post written by Aerie Rahman and may not reflect the views of Fair Trials.Logo-majlis-peguam-malaysia-malaysian-bar-council Aerie Rahman is a member of the Malaysian Bar. The Malaysian Bar is an independent Bar aiming to uphold the rule of law, the cause of justice, and protect the interest of the legal profession as well as that of the public. For regular updates follow Fair Trials on Twitter or sign-up to our monthly bulletin at the bottom of the page.  

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