Mind Your ‘Transformation’, Please!

By Kee Thuan Chye

“Transformational” is getting to be a hollow word. And the Cabinet ministers who brandish it at will don’t seem to understand its meaning. Home Minister Ahmad Zahid Hamidi just showed he doesn’t when he said the bringing back of detention without trial in the newly proposed Prevention of Crime (Amendment and Extension) Bill was “transformational”. Was he using it simply to be in fashionable sync with the Government Transformation Programme?

Is something retrogressive transformational? Is a return to the provisions of the repealed draconian Emergency Ordinance (EO) and Internal Security Act (ISA) transformational? If it is so, then Malaysians are in for a big surprise. And a nasty one too.

Both acts were considered reprehensible to the public, and therefore the Government was forced to remove them. But that was before the 13th general election was called. Now that it’s over, the Government apparently sees no more need in appeasing the public. Pre-election pledges have gone out the window.

A government that is transformational would not hark back to the dark days of Mahathir Mohamad’s reign, when fear was the instrument used to keep people in line. It should instead be demolishing Mahathirism and restoring the damage done to our institutions. No wonder Mahathir is applauding the Bill and blaming the public for “not (being) that developed or educated to appreciate that the law is for their own good”. But then, that’s Mahathir. Always blaming other people. And always asserting that might is right.

The new Bill proposes detaining a suspect for an initial two years, after which period if a review finds that the suspect should be detained further, he will be held for a further two years. This could go on indefinitely in a series of two-year periods. In this sense, it is no different from the EO and the ISA.

The difference is that the detention order will now be decided by a three-member Crime Prevention Board headed by a judge. It will no longer be the decision of the home minister. The board’s members will be appointed by the King – of course, at the recommendation of the prime minister.

The unjust part about it is that the suspect will not be allowed legal representation during the inquiry to decide whether he should be detained. And if the board decides to detain the suspect, he will not be provided the grounds for the detention.

Worse, the newly proposed Section 7C(a)(i) provides that one of the things the board shall consider when deciding on detention is that the suspect has previously committed two or more serious offences. It, however, would not matter if the suspect had been convicted of those offences or not. This gives immense power to the officers handling the inquiry, and subjects the suspect to their mercy.

If you consider that even criminals are human beings and should have rights, you would think twice about condemning them to such a bleak situation, especially when they are not even allowed to have a lawyer to represent them.

But Zahid assures us that despite all this, the Bill provides for a judicial review, i.e. if the suspect feels he has been wrongly detained, his lawyers “are given a chance to bring their case to court for a review”.

This sounds good on paper, but in real-case situations, it would still disadvantage the suspect. First, the act of detention without trial takes away his right to being considered innocent till proven guilty. Second, if he were truly innocent and got hauled in by mistake, he would still have to spend time in detention while his case was being brought to the High Court. Nobody relishes such an ordeal.

Third, and perhaps most important, if the suspect is not provided the grounds for his detention, and the board is granted the option to decline providing any information to the court because it would be against the public interest to do so, how will the review be made?

As it is, lawyers looking at the Bill have expressed differences of opinion on what the proposed judicial review will actually be allowed to address.

Apparently, the newly proposed Section 15A(1) says that a judicial review would address only whether the Crime Prevention Board complied with procedural requirements when deciding on the detention; it would, however, not be allowed to address the board’s decision.

But Section 19A(2) apparently says that the board’s detention order can be reviewed by a High Court. Which is which? Does the Bill require rewriting to make this clear before it is debated in Parliament?

In any case, the court challenge Zahid talks about would not amount to a trial. As spelt out in the amendments, it would only be a judicial review, which is different from a trial. As such, if the detention were to be upheld by the judicial review, it would technically still amount to detention without trial.

It’s obvious that in defending the Bill, Zahid is thinking only of those who are guilty and therefore deserving, in his reckoning, of being subjected to the suffering that is detention without trial. He is not thinking of those who might be innocent and wrongly detained. The law, however, should place more emphasis on the latter to avoid traumatising them.

The law should also not be a potential instrument for abuse by the Government. Zahid says, “I give my guarantee that the amendments are 100 per cent targeted at criminals, and they should not be seen as a way to imprison parties with views against the Government.” But what good is such a guarantee?

Home ministers come and go. When he’s gone, will succeeding home ministers honour that guarantee? Who’s to ensure that future governments will not abuse the amended Prevention of Crime Act 1959 (PCA) to detain without trial critics of the Government and political opponents?

Looking at the definitions of persons who can be held liable under the PCA, you can see that almost anybody could qualify. As such, an amended PCA allowing for detention without trial can certainly be abused. In the wrong hands, it could take into detention more than just criminals.

It’s surprising that the Attorney-General, Abdul Gani Patail, endorses it. On July 16, he openly said, “I will never agree to preventive detention.” He stood by the belief that it is better to let more guilty people go free than to send an innocent person to jail.

He also said these existing laws were sufficient for dealing with criminals – the PCA, the Security Offences (Special Measures) Act, the Penal Code, the Criminal Procedure Code and Evidence Act.

Why has he gone against what he said?

On August 19, 2013, Prime Minister Najib Razak promised he would not reinstate laws that allowed for preventive detention. “How do you arrest somebody if that person has not committed a crime? If it’s on a mere suspicion, it’s insufficient ground to arrest somebody on the basis of preventive laws,” he said.

“We are doing our best to find a good balance to ensure that human rights are not affected but to defend public interest as well,” he added. “This is what is needed for a more mature society.”

Tell us about it, Najib. The Malays have an idiom to describe you and Ghani Patail, “Cakap tak serupa bikin.” (Not walking the talk) But more than that, it’s as clear as the hair that’s getting greyer on your head that you and your government are not doing your “best”. So you’d better buck up and do a better job. You can start by talking less. Especially about “transformation”.

* Kee Thuan Chye is the author of the new book The Elections Bullshit, now available in bookstores.