A matter of trial and error

The new Security Offences (Special Measures) Act is arguably imperfect, but the timing of its conception cannot be more perfect for the new generation of Malaysia, says de facto Law Minister Datuk Seri Nazri Aziz.

By SHAHANAAZ HABIB, The Star

MANY took it as lipservice when the Prime Minister announced the repeal of the controversial ISA in his Malaysia Day speech last year. Others were even more sceptical when he said that the Government would replace it with new laws more in keeping with the principles of human rights. But seven months later, it happened. The dreaded ISA has been repealed and replaced with a new law and amendments to the Penal Code, the Criminal Procedure Code and the Evidence Act.

So, how do the new Security Offences (Special Measures) Act and amendments measure up? De facto Law Minister Datuk Seri Nazri Aziz addresses some concerns.

Q: People are happy the ISA is finally gone but there are already many questions and concerns over the new Act. Why the rush?

A: If we all still remember, it was three years ago when PM Datuk Najib (Tun Razak) first took over the administration of the country and he did say that he would look into reforming the laws which are considered to be archaic, draconian and not consistent with a developed nation status. That was three years ago. How is it that it is being rushed?

And last year there were many questions raised by mostly opposition MPs asking when the ISA is going to be abolished and the supposedly new law is going to come in? How is it that after three years and after all these questions have been asked – that now it is a rush job? Certainly not. I think three years is long enough to engage the stakeholders and finally come up with a new law. Certainly the AG’s chambers had to make a lot of references to the laws of other countries like the UK, the US and Australia. All this takes time. I think three years is just what is expected so to me it’s not rush job.

Q: Stakeholders like Suhakam said they were briefed rather than consulted on the new bill. And this was 2 days before it was tabled in parliament which was too short a time for them to give an indepth input on the draft. Why?

A: There is something greatly wrong when people think that consultation means we must agree with all what they propose. Consultation means listening and engaging. At the end of the day, it has to be our decision. So they should not think that consultation only occurs when whatever they propose will be accepted. That’s not right. If they are not unhappy that some of the proposals are not what they want, it doesn’t mean that we didn’t consult them.

Q: So you think the new bill is in line with human rights?

A: Certainly. Like informing the next-of-kin immediately when a person has been detained, allowing the detainee to engage a lawyer within 48 hours of his detention and after 28 days, the detainee is either to be freed or charged. All these things were not in the ISA and civil society was against it (the ISA and the absence of human rights).

Q: Why is the 28-day extension of remand of a detainee made by the police and not brought to a court to decide?

A: These are security offences and not ordinary criminal offences. You must distinguish between the two. Security offences are serious offences. Let’s say, after 24 hours of detaining the person, you must go to court for the remand. Tell me, what kind of evidence can we get within 24 hours to convince the judge to further extend the remand to 28 days? Just think. Do you think there will be enough evidence? That’s number one.

Number two – because it is a serious offence – there must be a continuity in the investigation so that’s why it is better for us to get the 28 days first and let the investigation continue whilst at the same time the detained person can avail himself to two legal recourse. He can engage a lawyer within 48 hours (of his detention) and he can apply for a writ of habeas corpus on substantial and procedural matters. In the past, the detainee could only seek a writ of habeas corpus on procedural matters and not substantive. Previously, judicial reviews were not allowed but now they are. So these are new safeguards.

Q: The Security Offences Act states no one will be arrested for political beliefs yet the amended Penal Code states that an activity “detrimental to parliamentary democracy” is a security concern. Isn’t this a contradiction?

A: No. You must go back to the main (Security Offences) law which states that nobody will be arrested for their political belief . The amendments in the Penal Code must be read together with that law. You want to have whatever government you want – no problem – but it has to be through elections because that is the way provided by the constitution. It’s fine as long as it is not violent and not through unconstitutional means.

Q: What if I want a sultanate or the caliphate system of rulers or if I am propagating an activity against parliamentary democracy, can I be arrested under that law?

A: No, because your means are constitutional. You are not taking arms against us. You are campaigning in elections to be where you want to be. If you want the sultan to be PM, it’s okay if it is done through elections. But you cannot use violence. If you merely engage people – then it’s okay. That’s not unconstitutional.

Q: What if someone wants to initiate an anti-parliamentary democracy movement?

A: Go ahead – it’s not unconstitutional. Just don’t do it through violence or unconstitutional means. They can campaign, have seminars – that’s okay. It is allowed.

Q: What if I practice communism or socialism and that is my political belief?

A: No problem. The law doesn’t state ideology.

Q: So you are saying that an“activity detrimental to parliamentary democracy” is an offence under the law only if it is violent and unconstitutional ?

A: Yes, if you want to just talk about it, that’s okay. There’s nothing wrong. You may be caught under Sedition Act – but you won’t under this act.

Q: Under the law, printing, importing or possession of a publication “detrimental to parliamentary democracy” could land the person in jail for five, ten or 15 years. Does that mean a person who buys or has a book on the Arab Spring revolution in the Middle East is committing an offence?

A: No, it’s okay to read those books. So long as it’s not a book that says Let’s Bring Down The Government Through Arms’ or Let’s Bring The Government of Malaysia Down Through Revolution’ – that tak bolehlah.

Q: What about books on How Revolutions are Born’ or How Revolutions are Made’?

A: That’s okay. We are not going to ban those books.

Q: But isn’t this open to interpretation? As law minister your intention might be such but the court might take a very literal interpretation instead.

A: At the end of the day, we leave it to the court to interpret the act. That has always been the role of the court. We shouldn’t deny the role of the court to interpret.

Q: But the court can only decide according to the law and the lettering of the law is very vague?

A: Let the court decide. We only legislate.

Q: Espionage is described in the amendments as “activity to obtain sensitive information by ulterior or illegal means for purposes prejudicial to security and interest of the country” and it lists many essential services down. If someone has information of a wrongdoing in one of these services and wants to reveal it to the media or public but he can’t because it is now deemed a security offence?

A: Come on man. As if you can’t report on some wrongdoings. The act and amendments are for serious offences like someone wanting to sabotage or bomb any of the essential services like water or electricity. It’s not what you disclose or write about the essential services.

Q: But the law is vague and the interpretation is loose because someone might argue that disclosing the information is for public interest while the authorities might say it is “prejudicial to security”?

A: Argue it in court. That I am doing such a thing not to sabotage but to report that there is a wrongdoing’. If it’s a whistleblower, you have to inform the authorities. It’s not a defence to say that I don’t trust the authorities.

Q: Then it doesn’t look like a very friendly act?

A: Espionage falls into serious offences. You cannot equate it with ordinary criminal offences. That is why we put it down in the act as “special measures”.

It is also preventive in nature which means that we do not have to wait until something is done to the essential services before we act. That is why we need all these as tools – otherwise we have to bring back the ISA.

Last time, we couldn’t bring them (terrorists) to court because we didn’t have all these tools which is why we used the ISA. But now people demand that we charge them for some offence or other which is why we listed these offences down otherwise we cannot catch them.

It’s not like such threats to the essential services have not happened in the past but back then people didn’t know about it because we used the ISA.

Q: What if the judge takes it literally?

A:Why are you questioning the role of the court to interpret? They will have to interpret the law. Would you imagine a judge is someone who is political? I cannot answer you if you don’t trust the court.

Q: The remand is normally for up to14 days but this law allows for 28 days. Why is it different?

A: Because these are “special measures”. Serious security offences can’t be equated with normal criminal offences. Otherwise we don’t need that Security Offences law – and we might as well just use the Penal Code.

Q: Why does the law allow the AG to withhold sensitive information from the defence?

A: Serious security offences cannot be treated as the same as normal criminal offences.

Q: What is the rationale for holding a person who has been acquited until all avenues of appeal have been exhausted?

A: It’s a serious offence. The judical process has not ended because there is always an appeal to the higher court and an appeal is available to both sides – the prosecution and the defence.

When a person is found not guilty, if we allow him to go off while waiting for the appeal process, we may not be able to get him back later.

Do you think it is wise to allow a terrorist suspect go if the court releases him? People like Nordin Top for example – if the High Court finds him not guilty – do you really think we should let him go free?

Those charged with murder, even if the court frees them, they are not released as they have to go through the process of judicial detention until all avenues are exhausted – so how is it that a suspected terrorist which is a more serious offence – be allowed to go free (pending appeal) the moment he is not not found guilty?

Q: Is it because the general election is soon that the government wants to put this law in place before that?

A: No, this was due already. It’s not because of elections. Parliament ends next year so we are well ahead. We cannot be doing things and take into consideration what people perceive is going to happen. We have to follow the natural life span of parliament. The life span of this parliament is next year so when we do it this year – we are actually one year ahead.

Q; The letter of the law is so vague that this new law seems as scary if not scarier than the ISA?

A: What people don’t understand is that at least people will be charged. In the past, we do not hear about all this because we use the ISA. It is wrong to say that it is more scary. At least now, we are putting up laws to ensure that nobody will be detained without trial. We can at least charge the person for something. People have been doing all sorts of things (security threats) in the past and we used the ISA so nobody knew.

Now people want us not to detain people without trial which means people want us to charge the person who is being detained or arrested. That is why we need to have this.

Q: How come the Dangerous Drugs (Special Preventive Measures) Act still allows for detention without trial by the police for 60 days and Home Minister for another two years?

A: The A-G’s chambers is looking into this and will give a concept paper on this to the Cabinet within this year to bring this law also in line with the new Act which means doing away with detention without trial. The PM is very reformist. He has a heart and is looking into all this.

Q: Is the PM doing this just to win votes in the coming election?

A: No! You must remember he is the first Prime Minister who was not actively involved in politics before independence so he is actually the first of the new generation. Pak Lah was the last of the old generation. So the thinking is different. He is the new generation with all these (new) values. The moment he took over in 2009, he decided to do all this. And elections were still a long way away then. I am very happy because as a person trained as a lawyer, it was so difficult to defend the old law. We needed all those steps in the past but after over 50 years of independence it has to end. The ISA was useful and helped establish peace and stability in the country but now society is changing. A church got burnt and faeces was thrown into a mosque but these incidents have not caused riots which means people are more matured, not reactive and more willing to listen.

This is a clear change in society and this gives us confidence that we can do without all those old laws now. Society has changed so the laws have to change also. In line with this, we also need modern policing. Changing the law is one thing but the police must also be modern in their policing so we have to spend money on training them and equipping them with all the modern police methods. If this can be done, it can run parallel with the law and in five years time we will be more confident and can discuss more changes.

Q: Problems are usually found only when a law is implemented, so is the government willing to rectify the flaws?

A: There is a committee that will be looking at it. We agreed that the president of the Bar Council and Suhakam should sit in that. They will be looking at it from now and it is up to them how often they want to meet – every six months, or three or every month – it is up to them.

Q: But isn’t it embarassing that three years of thought went into the act and people are already asking for amendments of a law that has just been passed and the committee would too?

A: This is a new law. It has to go through trial and error. If there are flaws, it is best that this panel looks at it rather than the government.

Q: Can the act be open to abuse?

A: However good an act, if the chief executive wants to behave like a despot, it will happen. You can’t codify how to avoid keterlanjuran (going overboard) However good a law is, if someone wants to abuse it, it will happen. You can’t codify something that you can’t stop from happening. That is why it is called abuse. A knife, a computer, laptop, the internet are all good things but you can abuse it. It is the same with the law. It is not immune to abuse.