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repealed.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.
No comments:
Post a Comment