Don’t throw caution to the winds

THE idea of preventive laws was first introduced by Louis M. Brown, known as the father of preventive laws, who wrote several books and articles on the subject. Preventive law revolves principally around the adage that prevention is better than cure – a crime prevented is a crime solved.

Rather than reacting to an incident, it demanded a proactive stance in the face of mounting incidence of crimes in society.

Incidentally, the issue of doing away with preventive or security laws has attracted much attention in Malaysia of late. Even Prime Minister Tun Dr Mahathir Mohamad has chipped in, saying that the removal of the National Security Council Act of 2016 would allow gangsters to run wild.

Malaysia’s early attempt to enact such a law dates back to 1960 when the ISA or Internal Security Act was promulgated and implemented to deal with the Communist terrorists who caused havoc during the Emergency period of 1948 to 1960. It was envisaged that the ISA would be used as a tool to deal with the remnants of the Communist insurgency.

In fact, the authors of this law had terrorism in their mind when the idea of a preventive law was initially mooted.

According to Associate Professor Kumar Ramakrishna of the Nanyang Technological University, Singapore, the ISA in the initial stages became a magic wand for dealing with terrorists and their sympathisers.

Over the years, however, the tendency to abuse it brought about a bad image to this preventive law. It became a political tool to silence critics and mutated into a draconian law, readily available for the authorities to use, and earning the wrath of a large section of the population.

Reformist movements championed for the abolition of this outdated law, and the rest is history

According to Rohan Gunaratna, author of the best-selling book Inside Al Qaeda: Global Network of Terror, Malaysia employed a smart approach by combining the soft and hard methods in dealing with global terrorism. As such, the government replaced ISA with the Prevention of Terrorism Act 2015 (Pota).

Furthermore, to strengthen the resolve to tackle international terrorism, the government also passed the National Security Council Act 2016. Principally, the influencing factor was the invasion of Sulu fighters into eastern Sabah after more than 100 fighters slipped into Kampong Tanduo in Lahad Datu in 2013.

This added weight to the fact that national security is of paramount importance if individual security is to be guaranteed.

Globalisation has added more weightage on the need to strengthen our borders and strict vigilance.

Both the ISA and Pota were enacted pursuant to Article 149 of the Federal Constitution. The ISA stated that it was an “Act to provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property” while Pota starts off by stating that it is an “Act for the prevention of the commission or support of terrorist acts”.

It can be construed here that Pota is specific. In ISA, the Home Minister is the deciding factor per se. In Pota, although the role of the minister is removed, and the suspect is brought before a magistrate, the rule of law weakens as the suspect has to follow the guidelines of the Act, which deprives him of his civil liberty to engage his own counsel to appeal the detention.

This area needs to be examined in depth as it deprives a citizen of his fundamental and basic human rights.

The National Security Council Act 2016 gives even wider powers to several officials including the Prime Minister. This Act provides for the establishment of a National Security Council, the declaration of security areas and the special powers of the security forces in the security areas.

The council is to be the government’s central authority for considering matters concerning national security. Here, it challenges the authority of the Ruler to declare an emergency and subsequent actions.

It also puts the role of the Armed Forces at a dialectical confrontation as its powers are either challenged or diluted.

Furthermore, it gives the Prime Minister, who is chairman of the council, the authority to appoint a person as the director-general of national security.

The Act provides excessive powers to the chairman of the council and the director-general, such as proclaiming curfews, detention of persons and confiscation of property, which appear all too powerful.

It cannot be denied that the government needs powers and laws to ensure that individual and national security is safeguarded.

The peace and harmony that prevail now need to be guaranteed for a prosperous and peaceful Malaysia. At the same time, individual liberty, human rights and the rule of law must be seen to be enforced. As such, it is pertinent that the government, instead of removing these laws, considers amending them to suit the prevailing conditions and the new political atmosphere in line with Malaysia Baru. It is hoped that due consideration be given to the many appeals of the citizens of this wonderful nation.