POCA amendments will no longer allow any opportunity to be heard
26 July 2017
Lawyers for Liberty view with extreme concern the proposed amendments to the Prevention of Crime Act 1959 (POCA) that was recently tabled in Parliament which will in effect worsen the already harsh detention without trial law.
Under POCA, a person who is the subject of the procedure can be detained without trial for up to two years. The detention period can then be renewed for another two years, for an indefinite number of times. Additionally, a person can also be placed under police supervision in another district, usually exiled in a remote town for a period of up to five years.
It is important to note that under the POCA procedure, there is no court trial nor any evidence provided that can stand up in a court of law to prove the detainee is guilty of any particular criminal offences. The POCA procedure offends all basic rules of natural justice, evidential requirement and due process.
The detainee instead will be subjected to an unfair and opaque administrative detention process. The investigation by the police alleging that the detainee is a suspected criminal fit for POCA will be forwarded to an Inquiry Officer. The Inquiry Officer will then inquire further and make a finding on whether the detainee is a member of the ‘registrable categories’ (which would mean the person can be detained or placed under police supervision). The finding of the Inquiry Officer will be forwarded to the Prevention of Crime Board which will review the finding of the Inquiry Officer and decide if the person should be detained, placed under police supervision or released.
In essence, the detainee is subjected to a Kafkaesque secret trial where it would be impossible for him to rebut the allegations made against him as he would not know who are his accusers, the exact allegations nor the nature of the evidence against him. The only recourse for the detainee is to apply for a judicial review against the decision of the Board for non-compliance with the procedural requirements of POCA.
With the proposed amendments, the government are seeking to make a major change on the role of the Inquiry Officer as there will be no longer a duty for the detainee to be brought before the Inquiry Officer. The Inquiry Officer after receiving the police investigation report, will then ‘inquire’ and report to the Board. Serious concerns must surely be raised as to how the Inquiry Officer can ‘inquire’ and make a ‘finding’ if the detainee under the amended procedure is not required to be brought before the officer.
Prior to the amendments, the detainee would be able to explain his side of the story to the Inquiry Officer [sections 6 and 9]. Further, the detainee would be able to make an application to the Board for a review of the Inquiry Officer’s finding if he was dissatisfied with the finding [section 11]. These bare minimum ‘safeguards’ that were previously provided will now be completely lost under the new amendments.
These amendments make clear that the government are not interested in upholding even the most basic principles of justice and fairness i.e. to allow the detainee an opportunity to be heard.
Whatever little role the Inquiry Officer had, under the amendments, it is now made perfunctory, a mere formality to rubber stamp the police’s recommendation, so that the Inquiry Officer’s ‘finding’ can be forwarded to the Board with the minimum of fuss. The Board can then make a decision whether to detain, place under police supervision or release the detainee. There is no duty for the detainee to be brought before the Board to hear the detainee’s side of the story before a decision is made.
In effect, after the amendments, the detainee will be gagged, with no opportunity to explain his side of the story, completely helpless and left at the mercy of the detention authorities.
We therefore call on all parliamentarians to oppose these amendments as they would aggravate the already poor human rights record of Malaysia. POCA in effect punishes innocent detainees and by extension, their family members. It is an insidious piece of detention without trial legislation that has no place in any modern democratic state that cherishes basic principles of human rights, due process and rule of law.
Lawyers for Liberty