The Prevention of Terrorism Act 2015 (the Act) came into force on September 1, 2015. The Act, which aims to prevent the conduct or support for acts of violence involving terrorist organisations, has been criticised following claims that it is merely a reincarnation of the Internal Security Act 1960.
Introduction: The Act is enacted as a result of a White Paper entitled Towards Handling The Threats of the Islamic State Militant Group, tabled in November 2014, by the Malaysian Prime Minister, Datuk Seri Najib Tun Razak. It provides for the prevention of the commission or support of terrorist acts involving listed terrorist organisations in a foreign country, or any part of a foreign country, and for the control of persons engaged in such acts and for related matters.
With the implementation of the Prevention of Terrorism Act, police can now act against those who are recruiting people, regardless of what form they are using, for terrorism and militant movement such as the Islamic State (IS). This Act will also enable police to take actions against those who are going to Syria and Iraq to join IS. – Nancy Shukri (Minister in the Prime Minister’s Department).
Detention and other conditions: The Act provides for the powers of a police officer, to arrest, without warrant, if he has reason to believe that such arrest is justified. The suspect has to be produced before a Magistrate within 24 hours, and may initially be held in remand for 21 days, with an extension of a further 38 days. After such period of remand, the suspect may be taken before a Sessions Court Judge, and if found that there are no grounds to lawfully detain the suspect, the Sessions Court Judge may direct his release or order his release subject to certain restrictions, including the attachment of an electronic monitoring device. If the suspect is not released, an Inquiry Officer will continue investigations.
The Inquiry Officer: The Inquiry Officer’s role is to conduct investigations and report his findings to the Prevention of Terrorism Board (the Board). The role and function of the Inquiry Officer is intriguing as his identity is vague. According to the Act, the appointment of the Inquiry Officer will be made by the Home Minister. Although it is stated that a police officer will not be appointed as the Inquiry Officer, the issue revolves around the independence of such officer.
The Prevention of Terrorism Board The Board comprises between five and eight people, appointed by the Yang di-Pertuan Agong. They will comprise a chairman, a deputy chairman and not less than three, not more than six, other members. The Board may make restriction as well as detention orders. Detention may be ordered for a period of two years, with further powers to extend such order indefinitely.
Access to lawyers: The rights of the arrested person appears to be limited as it is stated in the Act that neither the person subject to inquiry nor witness at an inquiry shall be represented by a lawyer at the inquiry except when his own evidence is taken and recorded by the Inquiry Officer.
Judicial power: There appears to be a slight contradiction in the Act between two sections on the issue of judicial review of the Board’s decision. In section 19, it is stated that there shall be no judicial review in any court except on the grounds of procedure. However, in section 13, it is clearly stated that the direction of the Board shall be subject to review by the High Court. The issue that remains is which section will prevail.
Section 13 (10)
The direction of the Board under subsection (1) shall be subject to review by the High Court.
Section 19 (1)
There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.
Other recourse: Despite the ambiguity in whether a person arrested may have recourse to courts over the decision of the Board, section 13(9) of the Act enables the person arrested to make representations to the Advisory Board, under Article 151 of the Federal Constitution.
Conclusion: It is understood that prevention of terrorism is indeed important considering the rise in terrorist acts across the world. However, such preventative measures must be consistent with
international human rights law. Thus, it is hoped that the newly enforced Act would stay true to its aim and not be a reprise of the much criticised Internal Security Act.1
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Endnote
1. The Internal Security Act 1960 was abolished in 2012.
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