NB: This press statement was released on 27 September 2013 in Kuala Lumpur.
The proposed amendments to the Prevention of Crime Act 1959 (PCA) have caused a public outcry, not least because it appears to be a way of reintroducing the controversial provisions of the draconian Internal Security Act (ISA) and Emergency Ordinance (EO), both of which were repealed by the very same administration.
Many have pointed out the double standards of Prime Minister Dato’ Sri Najib Razak, who began his term promising “transformation” and respect for human rights and civil liberties, but have now succumbed to business as usual by undoing his very own reforms, and his own credibility in the process.
Further to that, the amendments to the PCA are problematic due to a few other reasons, as stated below.
No to preventive detention
Firstly, the reintroduction of preventive detention is completely unnecessary. This is especially so in light of the fact that the Government has already passed the Security Offences (Special Measures) Act 2012, which allows for preventive detention in cases of national security. Moreover, even without the amendments, the PCA already allows for remand of up to 28 days and then a further 28 days upon the approval of a magistrate.
Therefore, the PCA amendments can be seen as an attempt to broaden the ambit for detention without trial. Instead of taking the easy way out by using detention without trial, the police should focus on solving crime via the criminal justice system.
Overturning of the principle of justice
Secondly, there is a strong element of presumption of guilt in the proposed changes to the PCA. For example, section 7C(a)(i) states that a detention order can be issued on a person who has “committed two or more serious offences, whether or not he is convicted thereof, if the inquiry report finds sufficient evidence to support such finding.” In other words, a person who has been accused of an offence can be detained without having been proven to have committed it. Does this not contradict the basis of criminal justice, whereby a person is innocent until proven guilty?
Arbitrary power of the Prevention of Crime Board
Thirdly, it would appear that the arbitrary powers of the Home Minister that existed in the ISA has now been replaced with the arbitrary powers of a “Prevention of Crime Board.” This Board will comprise three members, with a chairman who “shall be or have been, or be qualified to be, a judge of the Federal Court, the Court of Appeal or a High Court.” In addition to the chairman, there will be two other members. However, the bill provides no specification of any criteria whatsoever for the appointment of these two other members. This raises many questions – who will recommend them and on what basis would they be recommended?
Lack of independence and check and balance in decision-making
Finally, the proposed law also prohibits legal redress by not allowing judicial review of the Board’s decisions. This is stated by Section 15A(1): “There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or finding or decision made by the Board in the exercise of its discretionary power….” A judicial review is only possible on matters concerning the Board’s compliance with procedural requirements.
Oddly, however, Section 19A(2) appears to contradict the earlier section by allowing a review of “the direction of the Board… by the High Court”. As such, it is at best a contradicting law and at worst, one that ignores the fundamental principles of justice.
Thus, it is obvious that the proposed amendments to the PCA are a clear violation of civil liberties, and a return to a haunted past Malaysians believed to have been buried. While we do not object to the strengthening of existing criminal laws to tackle escalating crime, the current amendments are akin to the government reviving the oppressive EO and ISA through the backdoor via the PCA.
Steven Sim Chee Keong, Member of Parliament for Bukit Mertajam
Zairil Khir Johari, Member of Parliament for Bukit Bendera