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NB: This article was originally published in my column on The Malaysian Insider.

“If this law is passed, it will be a black day in Malaysia.”

Standing two rows in front of me, N Surendran, the Member for Padang Serai, held the floor defiantly. I nodded my head solemnly. At that point, a feeling of frustration had overcome me. Not only because such a critical bill was being bulldozed through without proper consultation and engagement, despite its huge ramifications on civil liberties and human rights, but also because, seated on the opposition benches, there was very little we could do to either stop or delay it.

I glanced at the clock behind the speaker. By the end of the day, two previously repealed draconian laws would return to haunt Malaysia. How did we come to this?

From transformation to regression

Dato’ Sri Najib Razak’s reign as prime minister began with all the trappings of a grand reformer. In an attempt to unite a divided nation, he proffered the pseudo-national slogan of “1Malaysia,” defined by his official website as “a belief in the importance of national unity irrespective of race or religious belief.”

Najib also articulated a fresh economic agenda, dubbed the New Economic Model (NEM), in which he proposed a clear departure from the racially charged New Economic Policy (NEP) of the last four decades. In this paradigm shift, state monopolistic practices and race-based discrimination was set to be replaced by market liberalisation and needs-based affirmative action in favour of the poor.

Underpinning both the 1Malaysia concept as well as the NEM was an important keyword: “transformation”. This keyword has since manifested into a host of government initiatives such as the Government Transformation Programme (GTP) and the Economic Transformation Programme (ETP), through which Najib’s transformative reforms were converted into actionable projects and policies.

Najib’s euphoria, unfortunately, was not to last. Barely three years on, transformation has descended into regression. Today, 1Malaysia remains nothing more than a brand for subsidised sundry shops, mobile clinics, affordable housing schemes, budget menus and even textile retailers, while the NEM has given way to a rehashed NEP in the form of the recently announced Bumiputera Economic Empowerment Agenda (BEEA).

What is most tragic, however, is the unabashed about-turn by the Najib Administration over laws allowing for detention without trial.

In 2011, Najib led a hyperbolic charge to dismantle two existing legislations that provided for detention without due judicial process, i.e. the Emergency (Public Order and Crime Prevention) Ordinance (EO) and the notorious Internal Security Act (ISA). This represented a giant leap forward towards greater civil liberties and respect for human rights in Malaysia, considering the fact that both laws have been much abused over the years as a tool of political intimidation, often against legitimate political opponents.

Announced via live telecast to a nationwide audience and proudly reiterated in the international fora, Najib was adamant in presenting himself as a champion of liberal reforms. In an interview with the BBC, he even promised that having “removed the Internal Security Act and the Emergency Ordinance… detention without trial is history in Malaysia.”

Unfortunately, the Prime Minister’s notion of history has proven to be rather myopic. In the last week, Malaysians have witnessed the official end of Najib’s reform agenda, as the Government ushered in the return of the EO and the ISA through amendments made to the Prevention of Crime Act (PCA). This law may carry a different name, but every controversial provision has been retained – indefinite detention without trial, presumption of guilt, and prohibition of legal recourse, with the only significant difference being the replacement of the arbitrary powers of the Home Minister with an equally arbitrary three-man “Prevention of Crime Board.”

A campaign of justification

What is most galling about the entire exercise is that the law had been passed without much public resistance. Besides the usual opposition-led protests, some comments by political and social activists, as well as a strongly worded joint statement by the Bar Council, the Sabah Law Association and the Advocates Association of Sarawak, there was no sustained hue and cry following the tabling of the bill (though there now appears to be growing remonstration after the fact).

This was accomplished largely due to a cleverly planned campaign of justification. While, less than a year ago, the Government could not stop singing praises about its own successes in combatting crime through its GTP initiatives, the official tone took a divergent turn following unfavourable results in the 13th General Election, which hawks within the ruling party blamed on the Government’s increasingly liberal stand.

Shortly after the election, the media began to report a flurry of criminal activities, including a worrying spate of organised violence involving firearms. At one point, during the festive season mid-year, gun murders became a daily affair. Although most of the victims were themselves criminally linked, there was no doubt that the public had been persuaded that violent crime had spiralled out of control.

That was when the Home Minister seized upon the opportunity to suggest that the sudden surge in crime was due to the repeal of the EO and the ISA, as it effectively meant that thousands of ex-detainees had been set loose to roam around the country, presumably causing havoc.

This scenario, which soon became the police’s official line, appeared to be believable. In truth, however, there was no empirical evidence to suggest the correlation, a fact admitted to by the Attorney-General himself.

Instead, crime statistics from the Home Ministry revealed that incidences of armed gang robberies and armed robberies declined significantly (by 65 per cent compared to the year before) in 2012, which is the year immediately subsequent to the abolishment of the EO and ISA in December 2011.

Nevertheless, with public sentiment aroused, the Government launched a campaign dubbed “Operation Cantas Khas”, which saw nearly 12,000 criminals arrested and over 400 weapons confiscated over a one-month period.

Thus, having successfully constructed a climate of fear, the PCA amendments were introduced as the next logical step in the war against crime. Never mind that the Security Offences (Special Measures) Act already provided for limited detention without trial with judicial review in cases involving national security, or the fact that there was never any proof linking ex-EO or ISA detainees to the sudden spate of violent crime, or that structural inefficiencies had been singled out by many including the 2005 Royal Commission of Inquiry report for police failures in combatting crime. The PCA, it was suggested, was the tool that would solve the intractable crisis of crime in our country.

As a result, the draconian provisions of the EO and the ISA are now available once again in the guise of the PCA. While the Government has promised that it will not be used against political opponents, history has proven otherwise, as many members of the opposition benches would readily testify.

If 1Malaysia and the NEM provided the basis of Najib’s first term in power, then the BEEA and the PCA should give us a clear indication of what to expect in the years to come.

Thus, Surendran’s proclamation in Parliament was only half-right. The passing of the bill at 1.00am on 3 October 2013 did not merely signal a black day, but in fact the beginning of black times ahead for the nation.


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

Zairil Khir Johari


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