This document discusses the Prevention of Terrorism Act 2015 (POTA) in Malaysia and prospects for improving preventive detention laws. It provides background on previous security laws and outlines key aspects of POTA, including its basis under the constitution. Concerns are raised regarding wide powers afforded to authorities and lack of safeguards. Lessons from other countries indicate preventive detention laws often fail to balance security and civil liberties. The document argues POTA and similar laws need stronger oversight and judicial review to prevent abuse and proposes political and legal reforms to improve preventive detention frameworks.

1. UNDERSTANDING
PREVENTION OF TERRORISM
ACT 2015: PROSPECTS AND
FUTURE
Associate Professor Dr Faridah Jalil
President, Academic Saff Association UKM
Lecturer, Facuty of Law UKM
19 May 2015
Auditorium FUU, UKM Bangi

2. WHAT CAN BE DONE TO ENSURE THAT POTA
2015 WILL FOSTER FUNDAMENTAL RIGHTS
AND END THE BAD PRACTICES OF PREVIOUS
PREVENTIVE LAWS
Question

3. BACKGROUND
ISA, Emergency
Ordinance
Repealed
2012
Security Offences
Measure Act
July 2012
Prevention of
Terrorism Act
To complement SOSMA
2015; White paper
“Towards Combatting the
Threat of Islamic State”
Other relevant law:
Penal Code (Amendment) Act 2012

4. A LAW MADE UNDER ART 149 (1) OF THE FC
149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons,
whether inside or outside the Federation—
(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to
cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the
public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof,
any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent
with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power
of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.

5. PREAMBLE OF POTA 2015
An Act to provide for the prevention of the commission or support of terrorist acts involving
listed terrorist organizations in a foreign country or any part of a foreign country and for the
control of persons engaged in such acts and for related matters.
[ ]
WHEREAS action has been taken and further action is threatened by a substantial body of
persons both inside and outside Malaysia which is prejudicial to the security of Malaysia or
any part of Malaysia;
AND WHEREAS Parliament considers it necessary to stop and prevent such action;
NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the
Parliament of Malaysia as follows

6. “VALID NOTWITHSTANDING THAT IT IS INCONSISTENT WITH ANY OF THE
PROVISIONS OF ARTICLE 5, 9, 10 OR 13”
IS ANY OF THE PROVISIONS INCONSISTENT OF ARTICLE 5, 9, 10 OR 13?
5. Liberty of the person
9. Prohibition of banishment and freedom of movement
10. Freedom of speech, assembly and association
13. Rights to property
Permission that the law can be inconsistent does not mean these right can be violated.
Clause (1) Art 5: No person shall be deprived of his life or personal liberty save in
accordance with law, need to be observed.
Should we subscribe to the idea in Theresa Lim Chin Chin V. Inspector Gen. Of Police, where the court
found that the original justification for the law was not relevant and as long as the law is valid under
article 149, it will be held as valid by the court.

7. Restrictions on preventive detention
Art 151.
1. Right to be informed as soon as possible by the detaining
authority on:
i) the ground of detention
ii) the allegations of fact on which the order is based (if the
detaining authority is of the opinion the disclosure is not against the
national interest);
2. Shall be given the opportunity of making representations against
the order.
These 3 rights must be given as soon as may be;
The duty of the advisory board in Art 151(2) is now exercised by
Prevention of Terrorism Board S8 POTA

8. PENAL CODE S130B
(2) For the purposes of this Chapter, "terrorist act"
means an act or threat of action within or beyond
Malaysia where—
(a) the act or threat falls within subsection (3) and
does not fall within subsection (4);
(b) the act is done or the threat is made with the
intention of advancing a political, religious or
ideological cause; and
(c) the act or threat is intended or may reasonably
be regarded as being intended to—
(i) intimidate the public or a section of the public; or
(ii) influence or compel the Government of Malaysia
or the Government of any State in Malaysia, any
other government, or any international organization
to do or refrain from doing any act.;
(3) An act or threat of action falls within this subsection if it—
(a) involves serious bodily injury to a person;
(b) endangers a person's life;
(c) causes a person's death;
(d creates a serious risk to the health or the safety of the public or
a section of the public;
(e) involves serious damage to property;
(f) involves the use of firearms, explosives or other lethal devices;
(g) involves releasing into the environment or any part of the
environment or distributing or exposing the public or a section of
the public to—
(i) any dangerous, hazardous, radioactive or harmful substance;
(ii) any toxic chemical; or
(iii) any microbial or other biological agent or toxin;

9. h) is designed or intended to disrupt or
seriously interfere with, any computer systems
or the provision of any services directly related
to communications infrastructure, banking or
financial services, utilities, transportation or
other essential infrastructure;
(i) is designed or intended to disrupt, or
seriously interfere with, the provision of
essential emergency services such as police,
civil defense or medical services;
(j) involves prejudice to national security or
public safety;
(k) involves any combination of any of the acts
specified in paragraphs (a) to (j);
and includes any act or omission constituting
an offence under the Aviation Offences Act
1984 [Act 307].
(4) An act or threat of action falls within
this subsection if it—
(a) is advocacy, protest, dissent or
industrial action; and
(b) is not intended—
(i) to cause serious bodily injury to a
person;
(ii) to endanger the life of a person;
(iii) to cause a person's death; or
(iv) to create a serious risk to the health
or safety of the public or a section of
the public;

10. THE PROCESS OF
DETENTION
Referred to PP, 7 days must give direction
Remand
21 days
Detention
2 years
24 hours must be produced
Statement
supported by
PP/ASP
s.4(3) No person shall be arrested and detained under
this section solely for his political belief or political activity.
Restriction
order
Terms used is punitive: arrest,
remand
Q: Is the action taken by the
authority punitive or
preventive in nature?
Taken before
Magistrate before the
expiry of
S.6 (1) Can be taken to Session Ct –
released if no further inquiry is
needed.
s6(2) release with electronic
monitoring devices attached
Brought before IO

11. Membership Prevention Of
Terrorism Board S.8
Chairman
Deputy Chairman
No less than 3 and not more than 6 members
Legally qualified: at least 15 years
experience in legal field
Members hold office for a period of not more than
3 years, an eligible for re-appointment once for
another period of 3 years ; right to resign.
Appointment is made by the YdPA;
YdPA has the right to revoke the
appointment

12. Inquiry Officer: Appointed By The Minister,
Not A Police Officer s.9 Who is the possible
candidate?
 Huge power in conducting inquiry; what are the standards in concluding the
report? “reasonable grounds”
 Concern over the complexity of the process BUT right to be represented is
absence and the IO is permitted to get the Public Prosecutor assistance
during the inquiry.
 S.10 (6) Neither the person who is the subject of the inquiry nor a witness at
an inquiry shall be represented by an advocate and solicitor at the inquiry
except when his own evidence is being taken and recorded by the Inquiry
Officer.
 (7) The Public Prosecutor may appear at an inquiry to assist the Inquiry
Officer.

13. POWER OF THE PREVENTION OF
TERRORISM BOARD
 S 13
 Very wide; “reasonable grounds”
 Thus judicial review MUST NOT be ousted.
 Only the chairman must has legal qualification, other members, the
provision is silence on qualification.
 Power to determine its own procedure.

14. LESSONS FROM OTHER COUNTRIES
 None of the country that passed anti-terror law that is preventive in nature is happy with
the safe guard provided by the legislation:
“While new anti-terror laws were needed, the laws actually enacted diverge in too many
respects from the laws that Australia should have achieved. This means that the nation has
anti-terror laws which are not as effective as they should be in protecting the community from
harm, because, for example, their selective application and disproportionate impact may
actually contribute to the growth of domestic extremism. A related cost is that the over
breadth of the laws may, over the longer term, erode the very democratic freedoms, including
the rights to freedom of speech and liberty, that they are designed to protect.”
George Williams: A Decade Of Australian Anti-terror Laws
 Legislation on anti terror requires constant evaluation and improvement in many areas.

15. LESSONS FROM OTHER COUNTRIES
The principal failure in counter-terrorism policy in the twenty
first century has been the same failure as in the twentieth
century; the government’s need to be seen to be doing
something in the aftermath of a terrorist atrocity has resulted in
a catalogue of illiberal counter-terrorism measures that have
been both Draconian and ineffective, and have had the
unintended consequence of further radicalising minority
communities into acts of political violence.
Jessie Blackbourn, Learning Lessons from Counter-Terrorism Failures: The United
Kingdom's Pre- and Post-9/11 Counter-Terrorism Policy

16. A JUDGE PERCEPTION ON ANTI TERROR LAW
The Hon. Justice A G J WhealyTerrorism and the Right to a Fair Trial. Can the Law Stop Terrorism?
 “There can be little doubt about the capacity of Australian terrorism laws to achieve punishment,
denunciation and protection of the community, at least so far as those who have sentence passed
upon them are concerned. The more difficult question is whether conviction and the imposition of
a substantial penalty will have a deterrent effect on those sentenced, or on other persons who are
minded to be involved in a criminal terrorist act. There is a strongly held view that the imposition
of stern penalties has no impact on a committed terrorist. Moreover, the same view tends to
suggest that the imposition of strong penalties serves only to inflame the radicalism of the
extremists in the Islamic community. They see long gaol sentences as a “badge of honour” for
those who endure them. They see Courts as the instruments of repression utilised by an unfair
Government. “
 “Do heavy sentences act as a deterrent for those convicted? My view is that they probably do not.
Religious extremism and fundamentalism thrive on the unfounded proposition that our system of
justice is unfair. Do heavy sentences act as a deterrent generally within the local Muslim
community? Once again, probably they do not.”
 De-radicalisation programme.

17. PROSPECTS: WHAT NEED TO IMPROVE?
First, the complex relationship between political and legal
systems should be carefully studied in order to ascertain why
Malaysia appears to be more predisposed to instability or
intolerance and hence to preventive detention, than others.
Secondly, much stronger safeguards with respect to the decision
to detain should be developed. The legislation conferred wide
power to the authorities involved to investigate and make an
order, thus their power must be jealously guarded.

18. PROSPECTS: WHAT NEED TO IMPROVE?
 Third, high standards of proof are a must for the preventive detention as
the laws need to maintain a balance between the Human Rights and the
security of the Nation for maintenance of public order.
 Fourth, judicial activism and human rights sensitivity to overcome the
subordinate nature of the Judiciary and its general hesitancy, to act as a
check on government power.
 Fifth, restoring the judiciary to its rightful role as intended by the original
Constitution i.e., “judicial power of the federation shall be vested in….”
.

19. CONCLUSION
 While acknowledging the need for strong legislation
on act that is prejudicial to public order in, or the
security of, the Federation or any part thereof, it is
important to have safeguards to avoid abuse of that
preventive detention legislation are just as strong.
 As shown in other jurisdictions with anti terror law
which is also preventive in nature, the operation of
the legislation or related rules are subject to
continuous review and evaluation. The same
process must take place in Malaysia.

20. THANK YOU