Michael Yap decries the unconstitutionality of the recently approved PCA Bill.
Abraham Lincoln once said, “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.” It is naive to believe that Najib’s government will do away with pre-trial detentions and other draconian laws. The introduction of the Prevention of Crime (Amendment and Extension) Bill 2013 to amend the Prevention of Crime Act 1959 (PCA) is just another occasion where the Prime Minister and his government renege on their pledge for better respect of basic human rights.
The substance of these amendments is to create a Prevention of Crime Board which has the power to make supervisory and/or detention orders on certain registered persons and to allow the usage of electronic monitoring devices on suspects. The list of registrable categories can be found in Schedule 1 of the PCA, which consists of the following:
1. All members of unlawful societies which —
(i) Use Triad ritual; or
(ii) Are constituted or used for purposes involving the commission of offences that are seizable under the law for the time being in force relating to criminal procedure; or
(iii) Maintain secrecy as to their objects.
Looking at the list itself, one would wonder what is wrong in curtailing the freedom of these people who have the tendency of delinquency in the interest of public order and security. It is exactly what was intended when the PCA was enacted. The preamble of the Act describes it as an “Act to provide for the more effectual prevention of crime in West Malaysia and for the control of criminals, members of secret societies and other undesirable persons…” Nevertheless, one should be mindful of the warning given by Professor Ashworth:
“…many extensions of the criminal law are examples of political posturing, a Government response to a matter of social concern about which ‘something must be done’. For this reason a sceptical stance should be adopted towards claims of ‘social defence’, which are easy to advance.”
On one hand, the proposed amendments are far too drastic and disproportionate to the legitimate aims of the original PCA. On the other hand, it is my argument that the government intended to reintroduce subversive laws from the repealed ISA through this neglected piece of legislation.
It is trite law that a person’s liberty is so fundamental that any derogation or deprivation of it should be viewed with utmost circumspection. As stated by the Supreme Court in PP v Koh Yoke Koon:
“Detention not in accordance with law is inconsistent with the fundamental right guaranteed under article 5 (1) of the Constitution. Where a law deals with detention, there are abundant authorities to show that the provisions of such a law must be construed strictly and in the case of doubt the court should lean in favour of the subject.” 
However, more often than not, the executive, the legislature and the judiciary, merely pay lip service to such trite law. It is certainly questionable as to why the amendment is debated hastily in both Houses of Parliament as illustrated below:
It is also doubtful that our judiciary is able to protect the rights of the individual for three reasons:
1) The amendment sought to introduce these words into the preamble of the Act: “Now, THEREFORE, pursuant to Article 149 of the Federal Constitution IT IS ENACTED by the Parliament of Malaysia as follows:” The effect of such an insertion purports to give constitutional legitimacy to the Act. At the same, it is unfortunate that our courts are hesitant to strike down such legislations on the grounds of unconstitutionality.
2) Clause 19 of the Bill inserts a new section 15A to the PCA which precludes the courts to exercise any judicial review “on any act done or finding or decision made by the Board…except in regard to any question on compliance with any procedural requirement…” Such an ‘ouster clause’ denies the individual their rights to challenge the validity and substance of any supervisory order made against them, in particular the grounds relied on by the Board. It is also difficult to challenge any decisions of the Board on procedural irregularity as the Board was given wide discretionary powers to determine its own procedure.
3) Although it is provided that detention orders shall be subject to review by the High Court, it is argued that such “safeguards are insufficient or illusory”. The Board has wide discretionary powers to refuse disclosure of information on vague and broad grounds such as ‘public interest’ and ‘for the protection of witness, or his family or associates’. In other words, the individual would still face an upheaval task in challenging detention orders due to limited information. Judicial attitudes further militate against this position. This is evident from the interlocutory appeals in Anwar’s recent sodomy case where again and again the appellate courts have construed the disclosure provision, s. 51 of the CPC narrowly.
It is unnecessary to reiterate why pre-trial detentions are reprehensible. Such an expression of state power contravenes the presumption of innocence and is inconsistent with any constitutional norms. The fact that these state powers are only exercised on ‘undesirable persons’ does not mean that they should be denied of any due process of law. The law cannot hold someone in contempt when it is itself contemptuous. The pursuit of truth and justice cannot be resorted by any means which will bring the process into disrepute. As eminently stated by Vice Chancellor Knight-Bruce in Pearse v Pearse: 
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them…Truth, like all other good things, may be loved unwisely-may be pursued too keenly-may cost too much.”
Despite the fact that the nation is threatened by global terrorism, the UK highest court in 2004 has shown admirable judicial boldness in declaring a provision that authorises pre-trial detention of terrorist suspects to be incompatible with the European Convention of Human Rights. Similarly, the English courts have consistently protected Abu Qatada’s “due process of law” rights even though he is one of the world’s most dangerous terrorists. In fact, the need to use subversive laws to tackle widespread of criminal activity in Malaysia goes to show that our law enforcement authorities are failing at their task. It is my view that no Malaysians should trade away their fundamental liberties and constitutional rights because of a blunder in law enforcement.
Under the amended PCA, the Home Minister has the power to appoint Inquiry Officers to conduct investigation and surveillance on individuals. They will then procure evidence, whether admissible or inadmissible, legal or illegal, to justify their findings. The Board, acting as a quasi-judicial body, will then have wide discretionary powers to make supervisory orders to curtail individual liberties which are judicially unchallengeable. The Board also has wide discretion to put individuals who are not convicted under detention for a maximum of two years and subject to renewal of a maximum of two years. Do all these sound familiar?
Given that both Houses of Parliament has passed the 2013 Bill, there is nothing to stop the amended PCA from being part of our statute books. It is truly regrettable to see Malaysians, after bidding farewell to the days of ISA, now bracing themselves for the ‘iron-claws’ of the PCA. The struggle remains.
 See also Cheow Siong Chin v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors  2 MLJ 235, at 238 “The Prevention of Crime Act, 1959 (for the control of criminals, members of secret societies and other undesirable persons)…”
 Andrew Ashworth, Principles of Criminal Law (4th Ed, OUP 2003) p. 67
  2 MLJ 301, at302
 This Article allows Parliament to make legislations against subversion, action prejudicial to public order, etc.
 Joint Press Release by the Bar Council, Sabah Law Association & the Advocates Association of Sarawak: “Amendments to the Prevention of Crime Act 1959 are Repugnant to the Rule of Law – No to Preventive Detention Without Trial”, accessed 20/10/2013
 PP v Dato’ Seri Anwar bin Ibrahim  2 MLJ 353, CA; Dato’ Seri Anwar bin Ibrahim v PP  2 MLJ 312, FC
 (1846) 1 De G & Sm 12
 A v Secretary of State for the Home Department  2 AC 68