Spotlight kept on preventive detention laws

The federal government's proposed amendments to the Penal Code and Security Offences (Special Measures) Act - or Sosma - will render the courts powerless, a public forum on preventive detention was told.

The Penal Code (Amendment) Bill 2013 and Security Offences (Special Measures) (Amendment) Bill 2013 were among 12 Bills withdrawn from parliamentary debate on Oct 13.

Even when the court frees the accused from a charge under Sosma, the DPP can ask for the individual to be remanded and the court "has to allow it", noted PAS’ Sepang MP and lawyer Mohamed Hanipa Maidin (right).

"This means the person can't reap the fruits of the court’s judgment," Hanipa told those at the ‘Return of Preventive Detention?’ forum organised by Aliran in Penang last night.

"Even though (he or she is) found not guilty, the court has to comply with the DPP’s (application) to remand the person ... What kind of law is this? This is not an application but a dictate.”

In filing a notice of appeal, Hanipa said, the DPP can also apply a second time for remand of the individual.

He said there was no requirement for a written application. Usually, this is served on the other party and the court hears submissions from both sides during a hearing.

Under the proposed changes to Sosma, however, the DPP can make an oral or ex parte application and the court will allow it, stressed Hanipa, describing this as "cruel".

He further cited the provisions in the proposed Penal Code (Amendment) Bill 2013 to introduce minimum or mandatory sentences.

"The problem with minimum sentences is that the discretionary power of the court is taken away," Hanipa explained.

"Justice must be tempered with mercy. But a minimum sentence removes the power of the court to interfere in sentencing.”

Hanipa argued that mandatory sentences assume that a crime was committed based on a single motivation, when many factors, such as poverty and coercion, may have played a role.

However, he did not dismiss the need for a minimum sentence in the instance of serious crimes. It could also discourage attempts at plea bargaining.

‘Struggle must continue’

Bar Council president Christopher Leong, who was present to launch a nationwide roadshow to explain the adverse impacts of the Prevention of Crime Act (PCA), pointed out that preventive detention has had a long history in Malaysia.

"The struggle against detention laws, like the Internal Security Act, ran a course of three decades where it was finally repealed in September 2011," Leong (left) said.

"We thought finally it was over, that was it. We thought we could close the chapter, that our campaign was done and dusted.”

Unfortunately, he said, the campaign had to start afresh with the passing of the PCA (Amendment and Extension) Bill 2013 on Oct 2, where it was bulldozed through Parliament past midnight.

Its passage has provided Putrajaya with wide-ranging powers to detain suspects without trial for up to two years, and to extend this for another two years.

"When this dawned on us, we felt very tired. We felt we hadn’t had enough time to recover from the last campaign. Nevertheless, we have to go on because, throughout the history of detention without trial, we have seen many abuses," Leong said.

The forum, chaired by Aliran president Francis Loh, included a talk on civil society's role in continuing to oppose preventive detention laws.

This talk was delivered by Aliran exco member Prema Devaraj.