The Malaysian Bar is troubled and disappointed by the passage into law of the amendments to the Prevention of Crime Act 1959 (“Act”) in the early hours of 3 October 2013.
The re-introduction of preventive detention without trial laws and the limitation or ouster of the jurisdiction of the courts in the Act, which was passed through Parliament, is a great blow to the rule of law in Malaysia.
It is very sad that for a country wishing to move forward, we had at midnight regressed and moved backwards.
Violence has been done in Malaysia to the principle long held in the civilised world that a person is presumed innocent until proven otherwise in court. The amendments to the Act will deny fundamental rights guaranteed under the Constitution to people based on belief or suspicion.
The purported safeguards introduced into the Act, namely, the establishment of the Prevention of Crime Board (“Board”), and the right of judicial review against any orders imposed by the Board for preventive detention without trial are illusory and meaningless.
The Board has limited utility as it is designed to be wholly dependent upon the report of the Inquiry Officer. The Board has no power to inquire into, or re-examine, the accuracy and veracity of the findings of the Inquiry Officer and the grounds for the said findings. The Inquiry Officer is appointed by the Minister and has sole conduct of any inquiry under the Act.
The Board, when exercising its discretion to direct a preventive detention, is therefore effectively bound by the report of the Inquiry Officer. In this regard, the further amendment to the Act to increase the membership of the Board from three to five is cosmetic.
The limited access to the courts on judicial review provided in the amended Act is rendered meaningless by other amendments introduced in the same Act. The new section 15A expressly prohibits any judicial review by the courts with respect to any police supervision order imposed on a person, save on procedural grounds. Such procedures are, however, determined by the Board as they wish. The right of judicial review pursuant to the new section 19A(2) is negated by the new section 21A as the Inquiry Officer and the Board may refuse to provide any information and document to the court and the affected person on the basis that it would be against the public interest to do so. There is therefore no material before the court to review.
It is a sad day for Malaysia when those who make law do not understand the principle of the rule of law.
The Malaysian Bar recalls the words of Sir Winston Churchill, “The Power of the executive to cast a man into prison without formulating any charge known to law is in the highest degree odious and the foundation of all totalitarian government,…”.
3 October 2013