Enactment of The Prevention of Terrorism Act 2015 A Welcome Move – Faidhur Rahman Abdul Hadi

I read with satisfaction news articles both online and offline reporting the passage in Parliament of the Prevention of Terrorism Bill 2015 (now the Prevention of Terrorism Act 2015 or POTA). Now all that remains is for POTA to receive Royal Assent before a date is appointed for its coming into operation. The sooner that happens, the better for the sake of our national security.

Last year I had written about the general need for preventive laws to contain a number of ills that permeate our society. These include disrespect for the Federal Constitution and our social contract, the rampant recurrence of crime, the prevalence of racism in our national discourse, elements of subversion of the democratic process and of course not forgetting the increasingly real threat of terrorism. Apart from the need to retain the Sedition Act 1948 against such threats confronting our nation, I had also argued for a return of the repealed Internal Security Act 1960 (ISA) with protective mechanisms to safeguard individual liberty as introduced in the Prevention of Crime (Amendment) Act 2014 (Let’s bring back the ISA, too, The Malaysian Insider, 23 September 2014). I am pleased that this suggestion has been, short of re-enacting the ISA, taken up by the relevant authorities. The mechanics of POTA do indeed seem to be derived from that of the existing amended Prevention of Crime Act 1959. Examples include the vesting of the power to issue detention orders into a Board as opposed to a Minister, and the allowance for representation before the Board and review before the High Court. This is a welcome step in defence of the liberty of persons detained pursuant to POTA and other preventive detention laws and is an adequate enough safeguard against any arbitrary arrest and detention. The inclusion of a provision against detention on the grounds of political belief and activity fortifies this safeguard. It is also noteworthy that the Prevention of Crime Act 1959 is also to be amended again to streamline the mechanism therein to be in tandem with POTA. If anything, the only weakness of POTA is the scope. In contrast to the ISA, which covered not only terrorism but other subversion activities detrimental to internal security, POTA would seem to be limited only to terrorist offences.

Nonetheless, the introduction of some form of preventive detention law such as POTA is without doubt absolutely necessary as for a surety, demonstrated inescapably by our experience living in a post-ISA world, we cannot survive without preventive laws. Such laws are crucial for the maintenance of general public peace and security and are in force within nearly all legal jurisdictions of the world. The existence of the Patriot Act in the United States of America and the Prevention of Terrorism Act within the United Kingdom, both nations which pride themselves as liberal democracies, are but a few cases in point. Singapore’s wise decision to retain the ISA despite being urged to follow Malaysia’s 2012 move in repealing the same is now vindicated. The rise of the Islamic State and the emergence within our community of those with militant tendencies is testament to this. As Bilveer Singh notes in his article, New law gives Malaysia teeth in fight against terror (The Malay Mail Online, 7 April 2015), without preventive detention laws, troublemakers will gain confidence to threaten national security, and the authorities would be constrained to act upon offences when and after they have been committed, which would lead to massive loss of lives and property which, one might add, would be inevitable given the non-preventive nature of other existing laws against terrorism.

Against this backdrop, what was said recently by the President of the Malaysian Bar, Steven Thiru, in his Press Release of 5 April 2015 titled “Prevention of Terrorism Bill 2015 Violates Malaysia’s Domestic and International Commitments, is an Affront to the Rule of Law and is Abhorrent to Natural Justice” while predictable, must be condemned and rejected by all right thinking members, not just of the Malaysian Bar, but of society in general. Farcical in content and based on misguided ideological notions of individual liberty as always, the making of the press release by the President of the Bar comes as no surprise given that the Bar Council has time and again made no secret of its desire to see that all preventive laws, including the Sedition Act 1948, which happens to be the last bastion of defence of our Federal Constitution, be abolished, and the said statement is further evidence that the council will not and never end their endeavour in this regard and will tirelessly work towards achievement of this goal. But were the authorities to accede to this, and were we, the Malaysian public, to let them, then surely the price, which would be high and the consequences, which would be grave, is sure to be felt by the entire citizenry, regardless of alignment with the government of the day or the opposition, or whether they are members of the Malaysian Bar or otherwise. It is axiomatic that we all want and desire peace and security, and this is one of the most fundamental of human rights to be upheld if only to ensure a vibrant and robust economy necessary for us to continue to enjoy high living standards, and thus preventive detention must be tolerated as a necessity to ensure our nation remains stable and the general situation is conducive towards the achievement of this outcome. Without such laws, society would undoubtedly descend into constant chaos and anarchy. It is unsurprising therefore that the Bar Council having taken persistent stands against preventive laws, is in consequence thereof increasingly being perceived as anarchist.

It cannot be overstated that all who are concerned with the direction of the Malaysian Bar, most importantly lawyers, have a stake in procuring and requiring the immediate cession, by whatever means, of the Bar Council all and sundry activities in furtherance of the seemingly never ending crusade against preventive laws they have appointed themselves to undertake, ostensibly in the name of justice without fear or favour. The actions of the Bar in this regard have always generated much outrage and public opprobrium given their sheer audacity and monumentally high level of recklessness attached to them, but it is heartening to note that critically, increasing numbers of frustrated members of the Malaysian Bar including myself not only disagree with but openly defy the position of the Bar Council not only on preventive laws, but many other matters and such a trend is expected to continue to grow in the future.

Once again, credit which is due must be given to the powers that be in the introduction, or rather reintroduction, of a tough but necessary preventive law against the commission of terrorist acts. For the defence of our Federal Constitution and shared values, security, and even liberty, I am of the opinion, and undoubtedly my colleagues in CLJ agree with me, that it is vital that support be shown to such measures undertaken by the government and everyone of all walks of life continue to stand in vehement opposition towards the Bar Council and its supporters with regard to their position on preventive laws. The message must ring loud and clear that we Malaysians want continued peace and prosperity and we will not allow this to be threatened by misguided ideological notions on liberty.

*Faidhur Rahman Abdul Hadi is a lawyer practising in Kuala Lumpur and the co-founder of Concerned Lawyers for Justice (CLJ).

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