Is Pota really ISA 2.0? Experts weigh in
This provision therefore links the now-defunct ISA, the Prevention of Crime Act 1959 (PCA) and Pota. A person can be detained for up to two years and the detention can be renewed indefinitely for two years at a time.
Apart from the provision which allows detention without trial, below are other similarities and differences between the three laws.
Can detention be challenged in court?
Detention under all three pieces of legislation cannot be challenged in a court of law and the courts are excluded from scrutinising the proceedings.
Former Bar Council president Ragunath Kesavan (right) said the presence of an ouster clause - where detentions cannot be challenged in court - only showed how the government had no confidence in the judiciary.
“Why is that that you do not want to allow challenges in court? It’s a big embarrassment because you have no confidence in your own judiciary,” he said.
Ragunath believes that the more heinous a crime is, the more so there should be stringent rule of law to ensure justice is done.
“The person must have the benefits of the protection of the law and this is to ensure there is transparency in order to prevent abuse," he said.
Can the suspect be brought to the Magistrate’s Courts?
With the ISA, suspects could not be brought to the Magistrate’s Courts. Under Pota however, arrests can be made by any police officer without warrant, and would be brought to a magistrate within 24 hours.
Although it is not a police detention per se as the suspect must be brought before a magistrate, the magistrate only acts as a rubber stamp.
Therefore, lawyer Syahredzan Johan (left) said in practice, the detention is an administrative one since there is no judicial oversight and consideration whether the person should be detained or not.
“Since the application is automatic, whereby once the certificate is presented by the deputy public prosecutor of the police, the magistrate has no discretion whether to grant the detention or not. The magistrate must order detention.
“(So), the magistrate is just like a rubber stamp,” he said.
Powers of the home minister to issue detention orders
With the ISA, the home minister had absolute powers to issue detention orders.
However, detention orders under both the PCA and Pota comes from the Prevention of Crime Board and Prevention of Terrorism Board.
Even so, Syahredzan noted that the power to appoint board members goes back to the executive.
"There is no security of tenure with the members of the board. If the government is not happy with the board, it can dismiss and appoint more people.
“Yes, the power to issue detention orders is not vested in one person, but if you don’t have sufficient safeguards within the board to ensure that they can act independently, then it makes no difference,” he said.
Can a person be detained solely for his or her political beliefs?
Both Pota and amendments to the PCA have been inserted with a clause which states that "no person shall be arrested or detained solely for his political beliefs or activities".
The ISA did not have this clause and dozens opposition leaders were detained under the now repealed Act, albeit on allegations of security threats.
Although one may not be detained solely for his or her political beliefs, Ragunath believes this is arguable.
“If you belief in socialism, is it a political belief?” he said, citing the 1970s and 1980s where socialism was seen as anti-government and as such, some had been arrested for it.
“If I believe in the peaceful secession of Sabah, and I follow all the democratic process, do it properly, like what PAS is doing with hudud, is that sedition?” he said, adding that subjective and gray areas will be of concern.
Syahredzan said although it is stated that no one can be detained solely for political beliefs, the authorities “can always make the link if they want to abuse the law”.
“And there is concern that it might be interpreted to only mean membership in a registered political party.
“A lot of NGOs are not registered as political parties, but a lot of what they do is political. The Act might be abused against these people".
PCA = Emergency Ordinance 2.0, Pota = ISA 2.0
While PCA and Pota have many similarities, the explanatory statement of the PCA amendment bill passed by the Dewan Rakyat last night states that the Pota is meant to cover acts of terrorism other than those covered under PCA.
"Pota is in relation to terrorism offences when it has something to do with overseas terrorist threats," said Syahredzan, explaining that it came about to deal with the phenomenon of Malaysians who join extremist groups such as the Islamic State (IS).
"It is more appropriate to say that Pota is the return of the ISA. While the PCA is the Emergency Ordinance (EO) reincarnated.
"The PCA deals with terrorist threats within Malaysia,” he said.
Is detention without trial really necessary?
Syahredzan says no, and the fact that 17 people were arrested under suspicion of being Islamic State militants this week proves this.
"This is a good example that you don’t need more legislation, where you can apprehend them using the current laws before they carry out their terrorist attacks.
"The argument that you need more legislation to deal with threats of terrorism has not been answered. They have not explained what is insufficient of the current laws."
The 17 were detained under the Security Offences (Special Meaures) Act 2012 (Sosma).
The Sosma allows detention of 24 hours plus 28 days and if this is not enough, the investigative detention period could perhaps be lengthened, he said.
"If you say that you cannot charge these people because there is no predicate offence in the statute book, shouldn’t you enhance the Penal Code to include more predicate offences that these people can be charged with, instead of using detention without trial?" he asked.
While he admits the PCA and the Pota is not reviving the ISA wholesale, the fact remains that detention without trial is making a comeback, he said.
"At the end of the day, in practice, it’s all there to be abused by the powers that be if they want to abuse it. This is, in essence, the return of the ISA." - Malaysiakini, 8/4/2015, Is Pota really ISA 2.0? Experts weigh in