PCA - tyranny or ignorance of the majority? • Mohamed Hanipa Maidin • 7:41AM Oct 9, 2013 MP SPEAKS The supremacy of the majority is a rudimentary principle in democracy. But such a basic principle also breeds many negative repercussions. Tyranny of the majority is one of these. Draconian amendments were incorporated into the Prevention of Crime Act 1959 (PCA) in the Dewan Rakyat last week. I would say this was made possible because we have a majority of political idiots in our Parliament. Listening to many BN members of parliament debating the amendments, I was convinced that the majority failed even to understand the basic principle of rule of law. The PCA (Amendment and Extension) Bill is the Internal Security Act (ISA) wearing a different uniform. It allows for preventive detention. It introduces a clause ousting the jurisdiction of any court of law to question the power of the Inquiry Board. Yes, the ministers power to issue detention orders is no longer there. But it does not mean such power is absent in the amended PCA. It is now vested in the Inquiry Board. So, on what basis is it deemed a ‘victory for rule of law that ministerial authority has been removed? Pakatan Rakyat is strongly against the PCA amendments, and we fought tooth and nail to stop these from going through. Unfortunately, the tyranny - or rather the ignorance - of the majority reigned supreme. In spite of the governments undertaking that the PCA is aimed at cold-blooded gangsters, we are not at all convinced. The same undertaking was given to Parliament when Abdul Razak Hussein presented the ISA, but the facts have proven otherwise. The ISA was arbitrarily invoked against anyone seen to be detrimental to Umno, rather than to the state. The amended PCA does not recognise judicial review in its true sense. The court is not allowed to question the subjective discretion of the decision-maker in authorising detention without trial. The new law is to tell the court that the discretion of the detaining authority is always right, and thus there is no room for judicial intervention. Yes, the court may question procedural non-compliance but even if that leads to habeas corpus, the Inquiry Board can always reissue a fresh detention order that would render the remedy meaningless. The PCA deals with criminals. It involves the criminal justice system. There are inherent and trite principles of criminal law that are the cornerstones of this system. These principles protect the rights and liberties of the subjects against any tyranny of the state. Such basic principles must never be allowed to be sacrificed. No protection for detainees The most important of the basic tenets is the presumption of innocence. This principle stands as a hallmark of our criminal justice system. It must be borne in mind that, in criminal law, the state initiates the action. Any criminal act is in fact a crime against the state. This is why the state, which has all the necessary powers at its disposal, launches the battle against individuals alleged to have committed a crime. Such battles are not fought on a level playing field. Thus, if any protection is available to the individual, it is the principle of presumption of innocence. If the principle is compromised, then the whole fabric of our criminal justice system falls apart. Unfortunately the presumption of innocence is destroyed in toto in the amended PCA. It is done by denying the right of a detainee to have his or her day in court. Thus such a basic presumption has been reversed. The amended law implicitly introduces the presumption of guilt and the detainee is not allowed to prove otherwise. This was introduced pursuant to Article 149 of the federal constitution, but it fails to comply with Article 151, which prescribes legal protection to be made available to the detainee. One of these is the right to representation, which is conspicuous by its absence in the amended PCA. There is one more thing. The preamble states that the amendments were introduced as a result of security threats coming from inside and outside Malaysia. When the PAS representative for Tumpat questioned this, the home minister - to his detriment - conceded that there has been no external threat to the nation. I stood up and challenged the minister on this point. If this is the case, then the very existence of the Bill is questionable and without legal basis. It is unthinkable to have a law to combat organised crime if external threats do not exist. The amended PCA is a bad law. It prescribes the wrong medicine for our social maladies. Even if proving a case in court is hard in cases of mafia-type criminal activity, the solution lies elsewhere. The police force needs to be upgraded and modernised toward professionalism. The support systems for the police need to be constantly enhanced and strengthened. The police must be exposed to new and sophisticated technology in combating crime. After all, a strong police force will benefit all of us. ________________________________________ MOHAMED HANIPA MAIDIN is the PAS parliamentarian for Sepang. View comments (9)
Posted on: Thu, 24 Oct 2013 06:30:15 +0000
Trending Topics
Recently Viewed Topics
© 2015