The newly-introduced Section 15A(1) explicitly states that no judicial review is allowed against the board's decision or findings in the exercise of its discretionary powers.
However, judicial review is still applicable to matters concerning the board's compliance with procedural requirements.- Malaysiakini, 28/9/2013, Home minister: What detention without trial?
While reiterating its support for the Government’s continued effort to tackle serious crimes in the country, the Human Rights Commission of Malaysia (SUHAKAM) expresses its concern over the Government’s proposed amendments to the Prevention of Crime Act (“PCA”) 1959 as reflected in the Prevention of Crime (Amendment and Extension) Bill 2013 which was tabled in the Dewan Rakyat for first reading on 25 September 2013.
Having studied the Bill, the Commission opines that some of its provisions, and in particular those relating to detention without trial and legal representation, are inconsistent with fundamental human rights principles as enshrined in the Federal Constitution and the Universal Declaration of Human Rights (UDHR).
While it is noted that the Bill proposes an amendment to Section 9(1) making it a requirement for inquiry reports to be submitted to the Prevention of Crime Board (Board) instead of the Minister, the Commission views seriously the proposed Sections 9(5) and 9A(2) that deprive the right of a person to legal representation as guaranteed by Article 5(3) of the Federal Constitution and Article 7 of the Universal Declaration of Human Rights (UDHR).
The Commission is also concerned with the proposed Section 7C which empowers the Board to issue a detention order against a person who has committed two or more serious offences,whether or not he has been convicted, and merely on the sufficiency of evidence. The Commission is of the view that this provision violates a person’s right to a fair trial and protection against repeated trials as well as the rights to equality before the law and to be considered innocent until proven guilty, as stipulated under Articles 7(2) and 8(1) of the Federal Constitution, respectively.
The Commission also expresses its dismay over the proposed Section 15A which prevents judicial review of the Board’s decision except on procedural matters thereby denying the right of the an aggrieved individual to access to a court of law with all the guarantees necessary for his defence.
In the Government's efforts to combat crime, it is important to ensure that laws that are enacted are progressive and not retrogressive in character, mindful of Malaysia's position as a sitting member of the United Nations Human Rights Council that requires it to uphold the highest standards in the promotion and protection of human rights in the country. The Commission therefore deems it important for the Government to defer the second tabling of the Bill and to conduct a review of the proposed amendments by taking into account the following fundamental human rights principles:
• That the detention must not be made arbitrarily;
• That the detention must be based upon grounds and procedures established by law;
• That information of the grounds for detention must be given; and
• That the right to fair trial and access to legal representation must be granted.
“HUMAN RIGHTS FOR ALL”
TAN SRI HASMY AGAM
The Human Rights Commission of Malaysia (SUHAKAM)
28 September 2013