The Prevention of Terrorism Bill was tabled in Parliament recently.
Various parties deprecated the Bill for obvious reasons.
I would like to highlight one of the many criticisms of the Bill, which is on judicial review.
The public concern here is that the Prevention of Terrorism Act (Pota) would be misused to detain politicians and activists, instead of actual “terrorists”.
Ouster clauses in general
Section 19 of the Bill is an ouster clause. In essence, it excludes the power of the Courts to exercise its inherent power to review the decision of the board to issue a detention order.
Many people jumped to the conclusion that the Court would completely powerless with this clause.
This is entirely misconceived.
Section 19 is worded similar to many other ouster clauses in other laws.
What is essential here is that the courts can review the decision if it concerns “compliance with any procedural requirement in this Act governing such act or decision”.
At this juncture, many might think that the term 'procedural requirement' gives rise to a narrow room for review, or rather, a façade of hope.
Courts can review without jurisdiction
The term 'procedural requirements' includes jurisdictional requirements.
The Privy Council in Anisminic v Foreign Compensations Commission [1969] 2 AC 147 stated, “If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists”.
In other words, the power to issue a detention order would only exist if conditions precedent to the exercise of that power is fulfilled.
This test has been accepted by our Federal Court. The next question is, what are these conditions?
Conditions to invoke jurisdiction
The detained person must fall within the ambit of the Pota as Section 19 very clearly states, “decision made by the Board in the exercise of its discretionary powers in accordance with this Act”.
The long title and preamble of an Act has the same binding effect as any other part of the Act.
The long title and preamble reads:
“An Act to provide for the prevention of the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country and for the control of person engaged in such acts and for related matters.
WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside of Malaysia which is prejudicial to the security of Malaysia or any part of Malaysia;
AND WHEREAS Parliament considers it necessary to stop and prevent such action;
NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the Parliament of Malaysia as follows:”
Before board can detain
Read together with Article 149, the following conditions must be met before the Board is invested with power to detain a person:
1. Action has been taken by a substantial body of persons (“body”). The detainee must be a member of such a body;
2. Further action is threatened by such body, and as such the detained person;
3. The action referred to above must be an act of terrorism, or, in support, or in relation to, an act of terrorism; and
4. The acts of terrorism mentioned above must involve a terrorist organisation as declared under Section 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001
The power of the Board to detain only exists if the above state of affairs is present.
Order must have jurisdictional competence
If the conditions above are not fulfilled, the detention order can be struck off by the courts as the procedural requirement of jurisdictional competence has not been complied with.
This argument was mounted in the habeas corpus application of Raja Petra Kamarudin back in Sept 23, 2009.
In that case, the home minister issued a detention order against Raja Petra under the Internal Security Act (ISA).
The ISA had an ouster clause similar to Section 19.
In what was the first successful ISA habeas corpus application, the High Court ordered the release of Raja Petra as the Home Minister was without jurisdiction to issue the order.
In essence, the High Court found that Raja Petra was not a member of a substantial body of persons that had acted in a way as contemplated by the preamble of the ISA.
The decision was appealed all the way to the Federal Court, where the appeal was dismissed on technical grounds. As such, the High Court decisions stands as law.
Conclusion
It is clear the Pota can only be used for very limited grounds as provided for under the long title and preamble.
The Pota, in itself, doesn’t allow for misuse or abuse.
Despite the ouster clause, the courts are still vested with power to ensure that the Pota is applied lawfully.
Whether or not the courts will exercise such power, is an entirely different question.
SURENDRA ANANTH is undergoing pupilage to become an advocate and solicitor. He is also the immediate past president of the Asian Law Students' Association.
