YB Wong Chen
Interview on POTA: Part I
I was interviewed about the events of last week in Parliament, namely the passing of POTA and amendments to the Sedition Act. It’s a long interview as such I have broken it up into 3 parts. I will publish one part per day.
Part 1 on Malaysian Parliament, 9 March – 9 April 2015 session: On anti-terrorism, sedition, bloc voting, missing MPs and more. Q&A with Wong Chen, Parti Keadilan Rakyat Member of Parliament for Kelana Jaya, 11 April 2015.
Q. What were the important events at the recently completed Parliamentary sitting?
The two biggest events were the tabling of the Prevention of Terrorism (POTA) bill and the amendments to the Sedition Act. There were 13 legislations presented for this sitting, 7 of which were related to POTA. POTA is a new legislation, so other existing legislations relating to criminal justice needed to be amended to sync with POTA. The 7 related bills included matters concerning criminal procedure, penal code and evidence.
POTA has provisions for detention without trial (renewable every two years) for an indefinite period. The amendments to the Sedition Act were intended to give extensive powers to the police and widen the definition of “seditious tendencies”. If passed, these two bills will erode the rakyat’s already fragile and limited rights. Many worry that this points to the Najib administration becoming more authoritarian and less tolerant of criticisms.
Q. What do you mean if passed? Aren’t these laws passed after the two 12 hour sessions in Parliament?
Before a bill becomes an act there are two further stages. After Dewan Rakyat (the lower chamber of Parliament), a bill needs to go to the upper house or Dewan Negara. After that it needs the Agong’s (ruler, the head of state) signature.
The upper house is majority controlled by the Najib’s appointees and if the ruler refuses to sign, it will become law irrespective after one month.
In terms of expected timing, these bills will become law within the month of April. Our fear is that these legislations may be used against the people for the May Day rally. It may even be used against Dr. Mahathir to stop his increasingly brazen questions about Najib.
Q. Can you highlight how these legislations were debated in Parliament? What did you do?
Since November last year, when UMNO-BN introduced the White Paper against ISIS, we knew that a legislation against terrorism will be prepared. However, not a single person from Pakatan Rakyat or the Bar Council was consulted on the drafting of the anti-terrorism bill. So, two weeks before the start of the recently concluded Parliament session, I asked my two researchers to start looking at the anti-terrorism legislations of Australia and the UK. They researched a pile of data and policy points. At the start, none of the MPs seemed interested except for Raja Bahrin of PAS.
On the first day of the Parliament session, I had breakfast with Raja Bahrin, MP for Kuala Terengganu. We usually have breakfast together. There is only a handful of MPs that get to Parliament before 9.30 am. We talked about POTA and decided to do a few press conferences to alert the public. We started by alerting the public that MPs had yet to receive the draft bill.
The bill was finally put on the table a week before debate. Since I was assigned by PKR to analyze the bill, my researchers worked harder crafting arguments for MPs to use. I also worked with Ooi Heng (the parliamentary researcher for PKR) and he arranged for a special briefing by the Bar Council, open to all Members of Parliament. Despite the open invitation, only Pakatan Rakyat MPs attended. Around 20 MPs attended the briefing, which I co-chaired.
Thereafter, I called for a meeting of Pakatan MPs to attend a drafting session to put our alternative amendments to POTA. That was on Saturday 4 April 2015 in the PKR HQ. The YBs that attended the drafting were Sim Tze Tzin (PKR – Bayan Baru), William Leong (PKR-Selayang), Manivanan Gowin (PKR – Kapar), Hanipa Maidin (PAS –Sepang), Lim Lip Eng (DAP Segambut) and myself. My two researchers and Shao Loong of Institut Rakyat (the PKR think tank) also attended. I chaired and presented suggested amendments, William Leong and Hanipa gave a lot of feedback.
YB Sim Tze Tzin then drafted and faxed our amendments to the Parliamentary secretariat. He has experience with such amendments. Our amendments were a tactical move to slow down proceedings and also force our version to be debated. We were hoping to slow down proceedings so to buy time for our MPs to try to “turn” some BN backbenchers. By submitting written amendments, BN backbenchers could then read our proposals and duly consider the issues. Throwing oral arguments across the floor will have limited impact compared to presenting a written document. We hoped some would support it instead of the Najib administration’s bill.
Q. So what did you propose?
We are not soft on terrorism. We wanted a law that balances the need to protect citizens from terrorism and at the same time upholds rule of law and justice.
So we looked at the UK and Australian models. They have been actual targets of terrorist attacks. They are on constant high alert. Yet their laws are grounded. In the interest of fighting terrorism, they forgo minimal civil liberties and adopted a pre-trial detention system. Their authorities have powers to detain a suspect. However the maximum detention time is only up to 14 days. Thereafter, they must either set him free or charge him in court. UK and Australia are prime targets of terrorist attacks, yet their MPs saw the need to protect democracy and find a practical solution to security threats.
We liked what UK and Australia did. Tough on terrorism but without sacrificing a whole lot of civil liberties. So we basically adopted their laws in our counter-proposal to Najib’s version. We proposed a similar 14 days pre-trial detention. In truth, I would have even gone beyond 14 days to 28 days, if BN had counter-proposed, which they didn’t. Anything would have been better than indefinite detention without trial.
Q. What’s in Najib’s POTA bill?
The Najib administration proposed a system of detention without trial. POTA also allows normally inadmissible evidence, to be admissible. What does that mean? Hearsay or illegal confessions (however obtained) will be admissible in POTA. POTA also states that there will be no judicial review, whatsoever. Habeas corpus will not be allowed.
POTA has a Prevention of Terrorism Board, the bulk of the members do not have any pre-qualification requirements. The Chairman needs only 15 years experience in the legal field to qualify. This means that a banking lawyer of 15 years can lead the POTA Board! We asked for the Chairman to be at least a High Court Judge with experience in the criminal division. Our request was rejected.
The Board also has powers to make up any rules or procedures whenever they like. There is also no oversight by Parliament, POTA only answers to the Home Minister and ultimately the Prime Minister who appointed him. But the biggest threat is the matter of indefinite detention without trial.
When a suspect is arrested under POTA, he may be detained for a period of two years, renewable every two years for an indefinite period. This is basically ISA 2.0. We took the stand that this system would ultimately create more terrorists because you cannot fight terrorism by smashing the rule of law.
For instance, what if the Najib administration catches a misguided 18-year old who supports ISIS? They could detain him and deny him his basic rights to a trial. Give him no access to a lawyer, no access to his family. He will simply disappear. When the authorities eventually release him, he may have become so angry and filled with hatred that he might just become a terrorist. When a man is denied justice or a fair trial, he might fight his oppressors harder.
We looked at history, how unfair detentions in Northern Ireland had in fact created more sympathizers and IRA fighters. The same too in the recent Egyptian crackdown on the Islamic Brotherhood. Our greatest fear is that POTA may end up creating more terrorists.
Q. But isn’t this about existing terrorists?
No, POTA is extremely wide-ranging. It isn’t just restricted to containing terrorists who carry guns and bombs. Terrorist activities are given such a wide definition that it will include people who “support” terrorist groups. Support is such a vague term, and certain parts of the bill has wordings that refers to financial contribution and purchase of merchandise as terrorist activities. Thus, that categorizes someone who buys or sells ISIS t-shirts or ISIS flags as a terrorist too.
Several PAS MPs alerted me that the US treats Hamas as a terrorist organisation. In Malaysia, Hamas is accepted by many Muslims as an organization that tries to help Palestinians. Every Friday prayers, right across Malaysia, thousands of people donate to Islamic charities, which direct these donations toward the rebuilding of Palestine. What happens if Malaysia follows the US stance and declares Hamas a terrorist organisation? Combine this with such a wide definition under POTA, many thousands if not hundreds of thousands of Malaysian Muslims may be regarded as terrorists. Why create a law that makes thousands vulnerable to potential arrest and detention without trial? Some ask if this is intended to instill fear. History teaches us that a government that rules by fear will not be a government for long.
When my researchers dug deeper, we also discovered that not only some Muslims may be targeted, but some Tamils are also potential targets. The Tamil Tigers are currently classified as a terrorist group under Malaysian laws. The Tamil Tigers are very popular amongst the Tamil population in Malaysia. So with POTA, wearing a Tamil Tiger t-shirt will categorize you as a terrorist.
As I said earlier, if POTA is used against such supporters – putting them in detention without trial, and depriving them of legal rights under POTA – they may emerge hardened in terrorism. But if you give them a fair trial together with rehabilitation efforts, you stand a much better chance to return them to normalcy.