Thursday, May 3, 2012

A fine balancing act by Shad Saleem Faruqi - The STAR

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 The previous clauses ousting judicial review are repealed.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.

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