A 'repressive' law

After more than 10 hours of heated debate, Malaysia's parliament passed a controversial counter-terrorism law on Tuesday, April 7, that will allow police to detain suspects without trial for up to two years, according to state media.

The government justified the move, saying the Prevention of Terrorism Act was needed as dozens of Malaysians have been arrested over the past two years for suspected links to "Islamic State." In fact, a day before the vote, authorities announced the arrest of 17 people accused of planning to raid Malaysian army camps and police stations to seize weapons and to attack "strategic locations" in the capital.

But critics fear the new law could reintroduce indefinite detention without trial or judicial review, and violate due process rights in the name of preventing terrorism. They also say the draft law contains key elements of the notorious Internal Security Act (ISA), revoked in 2012, which was long used to detain government opponents, dissidents, and others in violation of their basic rights.

In a DW interview, Phil Robertson, deputy Asia director of Human Rights Watch (HRW), explains how the law may be applied and why in his view it violates basic human rights.

DW: What does The Prevention of Terrorism Act 2015 call for and why was it enacted?

Phil Roberson: The Prevention of Terrorism Act, or POTA as it is commonly referred to, aims at persons who are alleged to be "engaged in the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country."

But in typical Malaysia government-style when dealing with security legislation, it leaves many key terms undefined so as to afford maximum flexibility for law enforcers to interpret them as they see fit. So in this case, what constitutes "engage" or "support" is left unclear - which is problematic given that there is no legal review at any stage of the POTA process for a person who is accused of being involved with such actions.

Many people are very worried that the government has ulterior motives in drafting and now passing POTA through the lower house of the Parliament with powers that permit detention without trial, and provide that power to an unaccountable Prevention of Terrorism Board (POTB) - whose members will be screened by the government and rubber stamped by the sultan - that can make decisions that are not subject to judicial review.

Why have you referred to the law as "repressive"?

POTA is like a legal zombie arising from the grave of the abusive Internal Security Act (ISA) and Emergency Ordinance (EO) that were revoked in 2012.

The ISA and EO were established respectively to combat communist insurgency and to control racial and religious tension, but were repeatedly misused by successive Malaysian governments to arrest political opponents and hold them indefinitely, and intimidate and silence those raising concerns about government rights abuses or corruption.

So there is a great deal of justifiable concern that bringing back detention without trial could preface renewed crackdowns on civil society.

The Malaysia Bar Council estimated almost 160 persons have been arrested under rights abusing laws in the past few years, and there is an ongoing crack-down underway against political opponents using other laws, like the Sedition Act, that has been hitting opposition political people hard - so there is very little trust from Malaysian civil society for Prime Minister Najib Razak and the government he leads.

Naturally then when out of the blue Malaysia decides to return the practice of renewable terms of detention without trial, red flags go up everywhere in the country.

How would the new law violate basic human rights?

The right to a free and fair trial, and presumption of innocence are core parts of international human rights law. In the POTB system, the person accused can be detained for up to 60 days for an "investigative period" in which the affirmation of the government's investigating officer is sufficient to be held.

Using a separate provision of the criminal code, the police routinely deny access to legal counsel during such a remand style period. The accused is also not entitled to know what they are being charged with, or what they have done to be so charged - which is another clear violation of the right to due process and the right to a fair trial.

In conducting the investigation, the police investigating officer is not constrained by legal rules of evidence or criminal code procedures, but rather can secure evidence in any way he or she sees fit.

When the case is brought before the POTB, the accused is not entitled to be represented by legal counsel during the proceedings. The decision of the POTB is final, and not subject to any sort of judicial review except on procedural grounds - and this is a ruse really, because the POTB gets to set their own procedures.

The POTB has the power to detain a person without trial for up to two years, and then can renew that detention again as they deem appropriate. They also have the power to place a person under restricted status, meaning that they control access to communication devices, restrict movements, force a person to wear an electronic monitoring device, force a person to report regularly to the police, etc.

What does the government seek to achieve by drafting this law?

The government would likely say that they expect to control terrorism but they already have the tools to do so. I think that there is a hidden agenda by the government to return to the days of the ISA - when the threat of detention without trial was used with great efficacy to intimidate and silence political activists raising questions the government doesn't want to answer.

What do you urge Kuala Lumpur to do?

What's critical now is for friends of Malaysia in the international community to let Prime Minister Najib Razak and his government know how totally unacceptable this draft law is, and tell them to urgently send this back to the drawing board. Prevention of terrorism is important, but it needs to happen in line with, and not in contradiction to, international human rights law.

Phil Robertson is deputy Asia director of Human Rights Watch.