MP SPEAKS Do we really need Pota? The answer is surely no, unless of course, we are addicted to detention without trial.
That is the essential feature of Pota. It allows for detention without trial.
The people in this country fought with tears and blood to dismantle Internal Security Act (ISA).
How many innocent victims were incarcerated under ISA despite express undertaking from the BN government in Parliament that it would only be used against communist and subversive elements?
It is common knowledge that ISA was, with impunity, used against Barisan Nasional's political enemies.
Hitherto the Government has never offered any public apology to any victim of ISA or their family.
When the Government decided to revoke ISA many thought their nightmarish dreams had finally ended. For the first time, Malaysians felt that this country would ultimately cruise to a new phase - a Malaysia without draconian law.
Boost turns to blow
The people's confidence that a full-fledged democratic Malaysia would be possible gained momentum when Prime Minister Najib Abdul Razak also promised to abolish the colonial legislation, namely the Sedition Act 1948.
The fact that the provision on rallies in the Police Act 1967 was replaced with a Peaceful Assembly Act produced another 'boost' to such confidence.
But the people's joyous celebration was short-lived. Hitherto the Sedition Act has not been abolished.
On the contrary, this law has been continuously haunting many innocent Malaysians, especially those who are critical against the government.
Even the legislators were not spared from this wicked law, regardless whether they are inside or outside the august house. Of course, the law only extends its long arms to catch Pakatan Rakyat' Members of Parliament, leaving BN MPs untouched.
It is indeed an irony that the person who openly promised Malaysians that he would bring them out from the darkness of draconian laws is now bringing them back to the same darkness.
ISA was abolished yet the government has reinvented two pieces of legislations allowing detention without trial, namely the Prevention of Crimes Act (Poca) and the Prevention of Terrorism Act (Pota).
Both laws were fiercely fought and challenged by Pakatan legislators until the wee hours. only to find that the tyranny of the majority has been deeply ingrained in Parliament.
At the expense of key legal principles
It is easy to play with emotions in justifying Pota, using the popular mantra that we need a tough law to combat terrorism.
But it is a great fallacy to enact law based on emotions. When emotion reigns supreme, rationality vanishes.
Yes, terrorism is a global phenomenon and our country can't run away from this universal threat.
It is acceptable that we need extraordinary laws to deal with extraordinary threats operating in extraordinary circumstances.
But there are certain universal legal principles which should not be compromised at all under any circumstances.
These basic principles have been consciously designed in order to protect all of us, particularly the innocent. That a law can punish innocents is not a myth. It is a sad reality.
Terrorism is a criminal act and as other crimes, it is a crime against the state.
Anybody who is slapped with any criminal charge would, in reality, be facing the entire machinery of the state, thus the law provides certain basic safeguards to protect such a person from the state's onslaught.
The doctrine of presumption of innocence, right to access to lawyers, right to remain silent, and so forth, are but few examples of such fundamental rights.
Any law legalising detention without trial such as Pota is an antithesis to these old and universal principles, thus putting all of us into a dangerous zone where every one of us would become a potential victim of this law.
Pota opens door to legal torture
The proponents of Pota contend that only those who commit terrorism would be detained under this Act, thus our misapprehansion is misplaced.
Our short reply is this: how on earth would they be fully certain only the real terrorist would be legally arrested and detained under Pota, in the absence of any formal indictment in court?
Needless, a charge is an official notice informing the detainees the alleged crime they are said to have committed.
Without any formal charge in court, how would we know that only the guilty would be detained?
The fact that Pota expressly allows an inquiry officer to use any means, legal or illegal, to extract whatsoever evidence from the detainee is more than sufficient for us to doubt the quality of evidence in implicating the detainee.
It is beyond doubt that with such mind-boggling provision, it would give room to legalise any form of torture.
Worst still, such an illegal mechanism would be free from judicial scrutiny.
Judicial review section as toothless as in ISA
It may be argued that the law still guarantees the right to judicial review, hence the detention order issued by the Board may be duly challenged in court.
This argument may sound convincing to those who are not familiar with ISA or any other laws allowing detention without trial.
To the legal fraternity, however, this form of remedy does not bite.
In fact the provision allowing judicial review in Pota (Section 19) is in pari materia (exactly the same) with Section 8B and 8C respectively, of ISA.
Truth be told, this provision offers meaningless and toothless remedy to the detainee as the court is only empowered to hear objection on procedural ground only.
Thus, even if the court quashes the detention order and in turn grants habeas corpus, the detainee would still be easily rearrested and detained under a new or fresh detention order. In fact, that was normally the case under ISA.
Under Pota, the court's hands are tied down. The judge is not allowed to question the wide power of the decison-maker, even if the decision is tainted with mala fide or malice.
Provisions in Sosma repeated in Pota
How then, one may ask, should we deal with terrorism? Are we letting the terrorists harm us without any law to prevent them?
Of course we need a law to deal with terrorist threats. The law is already here to protect all of us; the government has enacted Sosma to bring any alleged terrorist to book.
In fact, there are a few provisions in Pota which also exist in Sosma, such as the provision on electronic monitoring device.
Thus one sees no justifiable ground for the government to introduce Pota.
When government criminalises terrorist acts in the Penal Code, it, at the same time, legislated special procedural laws known as Sosma to try anyone who allegedly commits terrorist acts.
With the existence of Sosma, the trial of any alleged terrorist is no longer governed by Criminal Procedure Code (CPC).
Make no mistake, Sosma is also a repressive legislation containing many unjust and cruel provisions, thus jeopardising the concept of fair trial.
It is not an exaggeration to conclude that Sosma was intentionally formulated in order to assist the prosecution in securing conviction at all costs.
Fairness of trial which is the bedrock of rule of law is almost absent in Sosma.
This law has considerably relaxed the stringent requirement of proving crimes, such as the presentation of evidence.
Under Pota, no justice in any court of law
Any person who is tried under Sosma will, from the day he is arrested, stay in prison until the apex court finally acquits him.
First, he is not entitled to any bail. Second, even if the High Court acquits him and such a decision is duly affirmed by the court of appeal, he would not be released ex debito justitiae (as of right), in the event the prosecution decides to pursue the appeal to the Federal Court.
What is interesting, under Sosma, the court is so impotent, so much so it has no power to refuse the prosecution's application to hold the acquitted person.
To add salt to injury, the government, along with Pota, also amended Sosma recently to tighten its grip.
Despite such repressiveness of Sosma, this law nevertheless still allows the right to trial, albeit littered with unfairness. The detainee, at least, knows what exact crimes he is said to have committed.
Viewed from this perspective, Sosma may be reluctantly tolerated.
Pota, on the other hand, dismantles any chance or hope of getting justice in any court of law.
This is intolerable. In essence, this is why all Malaysians need to stand up against Pota.
We should never tolerate any law which endorses absolute power. Power not only corrupts, it is also delicious. Absolute power is, no doubt, absolutely delicious.
MOHAMED HANIPA MAIDIN is a lawyer and PAS MP for Sepang.
