Old Wine in a New Wineskin?

Sara Lau discusses the recent amendments to the Prevention of Crime Act 1959.
"The power of the executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers is in the highest degree odious and the foundation of all totalitarian governments" – Winston Churchill
Malaysia is no stranger to the spectacle of detention without trial. While such an act is condemned by human rights watchdogs worldwide and outlawed by international human rights standards, Malaysia has had this practice firmly entrenched by virtue of the Emergency (Public Order and Crime Prevention) Ordinance and the more infamous Internal Security Act 1960 (“ISA”) until 16 September 2011, when the Malaysian Prime Minister, Datuk Seri Najib Razak announced the repeal of both pieces of legislation in a historic moment for Malaysia.
Less than three years later, the same Government passed the Prevention of Crime (Amendment and Extension) Act 2014 (“Amendment Act”) to amend the Prevention of Crime Act 1959 (“PCA”). The Amendment Act introduced, amongst others, the right to detain a person without trial and the use of electronic monitoring devices. The primary reason cited for the amendments is to give the police the ability to detain hard core criminals when crime was at an all-time high in the country.
In its original form, the PCA, which had hitherto been an obscure legislation, allows the police to detain a person (“person concerned”) for up to 71 days pending the outcome of investigations as to whether or not the person concerned is to be placed under police supervision and restricted residence (collectively “supervision order”) for periods of up to five years at a time.
In comparison, the ISA, empowered the Minister of Home Affairs (“Minister”) to detain a person without trial indeterminately for periods of up to two years at a time. With the introduction of powers of detention under the Amendment Act, the question that arises is whether the PCA is a reincarnation of the ISA.
The first thing to note is that a new preamble has been added into the PCA. It reads:
Whereas action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property;
And Whereas Parliament considers it necessary to stop such action;
Now, therefore, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the Parliament of Malaysia as follows: …”
This new preamble is extraordinarily similar to the preamble in the now abolished ISA. The substantial similarity between the preambles is the first indicator that the ISA is making a return into Malaysian law.
In addition, the PCA, which originally applied only to West Malaysia, has been extended to Sabah and Sarawak by the Amendment Act.   
More significantly, the Amendment Act introduced a new Part IV A to the PCA to deal with matters relating to detention orders. The cornerstone of Part IV A is section 19A(1), which reads:
“The Board may, after considering the report of the Inquiry Officer submitted under section 10 and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.”
Section 8(1) of the ISA stated as follows:
“If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof, he may make an order … directing that that person be detained for any period not exceeding two years.”
Under the ISA, the power to renew the detention is found in section 8(7) which allows the Minister to extend the duration of detention for further periods not exceeding two years at a time.
The material reproduction of these controversial provisions of the ISA in the PCA is a second indicator that ISA has indeed returned.
As mentioned above, before the enforcement of the Amendment Act, a supervision order may be issued against the person concerned if there are reasonable grounds for believing that he is “a member of any of the registrable categories”. The amendments made to the PCA under the Amendment Act now permit a detention order (“detention order”) to be made against the person concerned on the same grounds.
The expression “registrable categories” refers to nine categories of activities prescribed in the First Schedule of the PCA, such as triad activities, unlawful societies, human trafficking and drug trafficking. In particular, paragraph 2 of the First Schedule lists as a registrable category, “Persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code.”
Paragraph 2 was introduced into the PCA by the Prevention of Crime (Amendment of First and Second Schedule) Order 2014 and is significantly wider in scope than the original provision which reads, “Persons who belong to any group, body, gang or association of five or more persons who associate for purposes which include the commission of offences involving violence or extortion.”
It is to be noted that in order for a person to be regarded as a registrable person under paragraph 2 of the PCA, it is not necessary for an offence to be committed under the Penal Code; it will suffice that the person concerned “consorts” with at least one other person for purposes which include the commission of offences under the Penal Code.
The ISA had a vague but wider provision under section 8(1) which allowed the Minister to detain a person if he is satisfied that such detention is necessary to prevent that person from “acting in any manner prejudicial to the security of Malaysia … or to the maintenance of essential services therein or the economic life thereof.”
While the powers of detention under the PCA are narrower in scope than the ISA, both statutes share a common feature in that they disregard the fundamental presumption that a person is “innocent until proven guilty”.
Section 9(1) of the PCA imposes a duty on the Inquiry Officer to conduct an inquiry and issue a report as to whether there are reasonable grounds for believing that the person concerned is a member of any of the registrable categories. 
The Inquiry Officer will submit a report containing his findings and the grounds to the Prevention of Crime Board (“Board”) and provide his findings (without the grounds) to the person concerned under section 10 of the PCA. If the Board is satisfied, after considering the findings of the Inquiry Officer, that there are sufficient grounds for believing that the person concerned is a member of any registrable category, the Board may issue a supervision order or a detention order against the person concerned. A copy of the Board’s decision must be furnished to the person concerned. 
A person concerned who is dissatisfied with the findings of the Inquiry Officer or the decision of the Board may request the Board to review the same. The right to seek a review of the Board’s decision may be an illusory safeguard as it is unlikely that the Board will revise its own decision.
A major difference between the ISA and the PCA is that under the former, the power of detention is vested solely in the Minister, whereas the corresponding power under the PCA is vested in a five-member Board which includes a Chairman who “shall be or have been, or be qualified to be, a judge of the Federal Court, the Court of Appeal or a High Court”.
One of the main arguments put forth by the Government that the PCA is not the ISA dressed in a new outfit is that under the PCA, the Minister does not have any decision-making authority. Instead, all decision-making authority lies with the Board.
While the vesting of the powers of detention in the Board appears to offer a greater degree of check and balance as compared to the ISA, the fact remains that the Government retains significant control over the process as the Board is required under the PCA to exercise its powers based on the findings contained in the report prepared by the Inquiry Officer, who is an appointee of the Minister.
It is to be noted that section 9(5) of the PCA does not permit the person concerned to be represented by an advocate and solicitor at the inquiry except when his own evidence is being taken and recorded by the Inquiry Officer.
It appears from section 10(3) of the PCA that the Board in making its decision does so only in consideration of the Inquiry Officer’s report. The PCA does not expressly confer power on the Board to make its own substantive findings or inquire into the accuracy or veracity of the Inquiry Officer’s report. There is no provision which enables the Board to meet with or question the person concerned. In a nutshell, the Board does not appear to possess any inquisitorial powers.  
As the Board’s presence is to counter possible abuse of power by the executive arm of the Government, the lack of clarity as to its powers under the PCA raises doubts as to how effective it will be in discharging this important function.
Section 19A(2) of the PCA states that the decision of the Board to make a detention order or renew a detention order is subject to review by the High Court. Oddly, this directly contradicts section 15A(1) which prohibits judicial review except in relation to any question of compliance with any procedural requirements under the PCA.
Section 15A(1) materially replicates section 8B(1) of the ISA which also prohibited judicial review of the Minister’s decision save for questions on procedural matters.
Certain quarters, like the Malaysian Bar Council, have taken the view that the ouster of the court’s jurisdiction under section 15A(1) of the PCA is confined to a supervision order but not a detention order. However, this is not borne out by paragraph 12 of the Explanatory Statement to the Prevention of Crime (Amendment and Extension) Bill 2013 which states unequivocally that the purpose of section 15A is “to oust judicial review of any act or decision of the (Board) regarding any question except on compliance with any procedural requirement” (emphasis added)
The similarity between section 8B(1) of the ISA and section 15A(1) of the PCA is yet another indicator that the Government may be attempting to revive the ISA. However, it will be interesting to see how the Courts will reconcile the clear conflict between the provisions of section 15A(1) and section 19A(2). 
The ISA remained in force in Peninsular Malaysia for 51 years and in Sabah and Sarawak for almost 48 years. Section 19F of the PCA stipulates that Part IV A, which provides for detention without trial, is to be reviewed every five years and shall cease to have effect unless, upon review, both Houses of Parliament resolve to extend the same. It is hoped that this provision will enable the detention provisions to be brought to an end in a significantly shorter time frame.
As the grounds for issuing a detention order under the PCA are narrower that those under the ISA, it would be incorrect to say that the former is nothing more than old wine in a new wineskin. However, in view of the substantial similarity in the powers conferred upon the authorities under the two pieces of legislation and the substantial replication of the provisions of the ISA in the PCA, there is a distinctly familiar flavour which suggests that the PCA has been grafted from the same vine as the ISA.