|A fine balancing act|
|Wednesday, 02 May 2012 03:32pm|
©The Star (Used by permission)
Reflecting on the law By SHAD SALEEM FARUQI
The Security Offences Act of 2012 is indeed an important milestone pointing in a new direction of a more balanced, humane and compassionate government.
MOST laws involve a conscious attempt to straddle the divide between opposing views and to reconcile conflicting interests in society.
The recently enacted Security Offences (Special Measures) Act 2012 (SOA) that replaces the Internal Security Act (ISA) is, likewise, an attempt to bridge the gap between two deeply differing views.
The first view extolled the ISA as an absolutely indispensable tool for maintaining security and public order. The second reviled the ISA as an arbitrary and undemocratic instrument of authoritarian power.
The SOA walks the tightrope between these two positions. It has many positive elements that deserve commendation for the Prime Minister and the Attorney-General who resisted determined, behind the scenes opposition from many quarters.
The SOA repeals the 52-year-old ISA.
It abolishes the Home Minister’s power to detain preventively without authority of the courts. Previously under section 8 of the ISA, the minister could detain for two years and renew the detention repeatedly for two years each. There was no maximum period of detention.
The minister could act independently of the police and did not have to wait for a recommendation from the men in blue under section 73. The minister’s absolute power is now part of history.
The new law has “judicialised” the process of dealing with suspects. Previously the police and the minister were accusers, investigators and adjudicators all rolled into one. Now the police can detain preventively for 24 hours initially and then extend it to 28 days. The previous power extended to 60 days.
As an alternative to 28 days of detention, the police may apply to the court to fit an electronic monitoring device on the suspect for a period not exceeding 28 days after arrest.
After 28 days, the court kicks in and all further proceedings are subject to judicial review. The previous clauses ousting judicial review are repealed. In fact, it is arguable that even within the 28-day period of police incarceration, judicial review will put to test the reasonableness of police discretion.
There are celebrated judicial precedents like Abdul Razak Baharuddin (2005) on this point from the ISA era.
Previously, political detentions under the ISA were common. For example, during Operasi Lallang, 106 public figures were picked up. The new law clearly states in section 4(3) that no person shall be arrested and detained solely for his political belief or political activity.
The 28-day period of police remand is subject to a “sunset clause” in section 4(11). Parliament must review this part of the law every five years and save it or shave it. This enhances the powers of parliament to scrutinise the exercise of police powers.
Previously, ISA detainees had no right to an open court trial and their only recourse was to make representations to an Advisory Board whose recommendations were not binding on the Government. Under the new law, the role of the Advisory Board has been taken over by the High Court, whose decision is binding on the police.
Under the ISA, the minister could withhold evidence from the Advisory Board on grounds of national security, etc. Now the Government can request, but the decision on the withholding of evidence is in the hands of the court.
If evidence is withheld, a summary of the evidence must be supplied to the accused.
The ISA was silent on the right to legal representation. Barring three to four cases in 52 years, it was presumed that the Constitution’s Article 5(3) on the right to see a lawyer is not applicable to ISA detentions. If lawyers were allowed, it was only after long delays.
Now lawyers must be allowed after a maximum period of 48 hours after arrest. Additionally, under section 5(1)(a) the next of kin must be immediately notified of the arrest.
Despite the above noble features, the new law is not without concerns.
Some of us were hoping that the law would be specific to terrorism. Actually, its scope is just as wide as the ISA. Not just terrorism, sabotage and espionage but also public order and public safety offences are covered. The last two should be covered by ordinary law.
The most serious human rights issue in the law is that anyone acquitted by a court shall be put on remand if the Public Prosecutor files an appeal and applies to the court to have the person remanded pending the appeal or further appeal.
The court has no discretion to refuse. There are no time limits for the appeal or further appeal to be heard. This means that an acquitted accused can languish in executive detention despite an acquittal by a court.
Anyone charged under this Act has no right to bail. Some exceptions exist, including a gender-biased one in favour of women!
The police may extend an arrest from 24 hours to 28 days. It remains to be seen whether there is judicial oversight of the reasonableness of this extension.
Regrettably, there is no Special Security Court with a specialised judge or judges to try security cases. I understand that this aim will be achieved administratively.
In a concession to security concerns in an age of terrorism, the Act takes great trouble to hide the identity of witnesses in some circumstances; to allow interception of communication and the search and seizure of goods without a warrant.
There are innovative provisions on electronic monitoring devices.
As under the Criminal Procedure Code, illegally obtained evidence can be admitted.
A regrettable provision is section 32 that the repeal of the ISA shall not affect any order issued under the repealed Act unless earlier revoked by the minister.
This means that those detained under the ISA may remain incarcerated unless the minister revokes their detention order. Hopefully, he will do so in each and every case.
There is no bar to a trial under the new law.
Despite the above concerns, this Act is a defining and watershed moment in our legal history. Its legal, political and psychological impact will be far-reaching.
It marks a break with an undemocratic past and, hopefully, ushers in a new, kinder and less authoritarian era.
The Act demonstrates commendable leadership. To stand up to reactionaries; to break with the past; to refute the doomsday prediction that if the ISA were repealed, chaos would be inevitable; to confront deeply ingrained presumptions, prejudices and personal interests; required courage of the highest order.
An American quote comes to mind: “Leaders of substance do not follow opinion polls. They mould opinion, not with guns, or dollars or position but with the power of their souls.”
From a democratic point of view, the repeal of the ISA will strengthen the rule of law and constitutionalism in the country. It will enhance the legitimacy of the Government.
The psychological impact of this law on citizen-government relationship is indeed significant. We now know that NGO opinions can make a difference; social activists need not live in fear; reform is possible without revolutionary upheavals.
The Security Offences Act of 2012 is indeed an important milestone. Its positive aspects far outweigh its negative features. It is pointing in a new direction of a more balanced, humane and compassionate government.
But, of course, justice is not in legislation but in administration. Politicians and police who are used to old ways and are habituated to absolute powers may not reconcile easily with the need to observe due process. They need to be engaged.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Legal Consultant to USM
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