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Bar: ‘Abhorrent’ Poca amendment strips detainees of rights

 | August 12, 2017

Bar president George Varughese says detainees are now deprived of the basic right to be heard, to know allegations against them and to give a response.

George-Varughese-pocaPETALING JAYA: The Malaysian Bar has denounced an amendment to the Prevention of Crime Act 1959 (Poca) which removed a detainee’s right to appear and make his case against his detention without trial before an inquiry officer appointed by the home ministry.

Its president George Varughese said the passing of the Prevention of Crime (Amendment) Act 2017 (Pocaa) by the Dewan Rakyat after midnight on August 10 was a “backward step” that was “an affront to the rule of law and abhorrent to the principles of natural justice.”

In a statement today, he said the inquiry officer is responsible for presenting the case for detention under the act to the Prevention of Crime Board (POCB).

With the amendment, the detainee is deprived of the basic right to be heard at the earliest possible instance, to know the allegations made against him and to respond to them, he said.

“Instead, it will be the police who will now conduct the investigation and present their report to both the inquiry officer and the POCB,” he said.

“The principle of having an independent inquiry officer to oversee the case is removed in all but name,” he added.

Varughese said the issue was further compounded as the detainee is now not able to challenge the officer’s recommendation to the board.

“This is because the right of a detainee to know the decision of the inquiry officer has been removed,” he said.

“An inquiry officer is, in effect, given absolute liberty to make recommendations based on information submitted by the police to the POCB, without any input from the detainee.”

He added that the detainee’s legal counsel also does not have the right to make representations or appear before the officer or the POCB.

“The POCB is, in turn, given wide powers to affirm or reverse the inquiry officer’s recommendations, again without the POCB having first heard from the detainee. Thus the detainee is denied the right to be heard,” he said.

“The Malaysian Bar reiterates our call on the Malaysian government to repeal Poca in its entirety, and to bring all other prevention of crime legislation into line with its international commitments to respect the rule of law and natural justice,” he added.

He said when Poca was comprehensively amended and expanded in 2014, the Bar had raised concerns about provisions that allowed for the reintroduction of detention without trial and restricted residence (or “internal banishment”).

He said the provisions were no different from those contained in the Internal Security Act 1960 (ISA), the Restricted Residence Act 1933, Banishment Act 1959 and Emergency (Public Order and Prevention of Crime) Ordinance 1969 which had been repealed or revoked.

He said the Bar had raised “worrisome doubts” about due process and judicial review provisions, and other forms of “checks and balances”, as they were deemed illusory since the POCB would be the author of its own procedures and processes.

“The Pocaa now confirms that our long-held concerns were not misplaced. What little protection was afforded to a detainee has now been significantly removed and/or seriously compromised,” he said.

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