QUESTION TIME First off, indefinite detention without trial, with no chance of judicial review, has been reintroduced with the passage of the Prevention of Terrorism Act (Pota) in Parliament in the wee hours of yesterday morning.

Basically that means anybody can be detained under Pota so long as, first the investigating officer (IO) is satisfied that the person is a terrorist threat, and two, the board that reviews the IO’s decision too is convinced that the person is. 

As if that was not bad enough, more teeth will be given to the already teethful, notorious, broad-ranging, extremely oppressive relic from the colonial times, the Sedition Act.

Amendments provide for mandatory minimum jail sentences and denial of bail if the public prosecutor (yes, you read right) felt it was not in the public interest to release the person charged.

Just think about what that means. If you are charged under the Sedition Act and the prosecutor does not like you for any reason, you will have to spend the entire duration from your arrest until your trial is disposed off under detention without bail. Now that could take years.

Then there is a strange amendment in the law to remove the requirement to have a representative from the central bank, Bank Negara Malaysia (BNM), on the board of the nation’s second largest fund, Kumpulan Wang Amanah Pencen or KWAP which manages over RM100 billion. Why? Whatever for?

To top all that up, PAS has tabled in Parliament a bill to pave the way for introduction of hudud in the country for Muslims, which will see punishments such as amputation of limbs for robbery, stoning to death for adultery and crucifixion for apostasy.

Meantime, BN has not announced whether it will support the bill while PAS has appealed to Muslim MPs to support the bill that needs just a simple majority to be passed.

Any action against government can be 'terrorist'

Let’s elaborate a little on each of these legislative changes. While the government has said that Pota is aimed at terrorists, the definition of a terrorist act, taken to be that under the Penal Code, is rather broad and almost any action against the government can be construed as one.

Examples: The act is done or threat is made to advance a political, religious or ideological cause; intimidates the public or a section of the public; influences the government, state or federal, to refrain from acting.

In the Malaysian context of selective application of the law, that can be applied to a whole lot of people under many different circumstances.

Pota allows a police officer to detain any person suspected of terrorist activities. The suspect has to be produced before a magistrate within 24 hours but if a police officer with the rank of an inspector or above signs a statement, the initial detention period is 21 days.

With an assistant superintendent or public prosecutor signing, the detention period goes up to 38 days.

Other procedures include the appointment of an inquiry officer (not a police office) by the Home Ministry, who will make a recommendation to a Prevention of Terrorism Board to be appointed by the Yang di-Pertuan Agong. The board then decides whether to detain a person under Pota for an initial period of two years. The decisions are not subject to judicial review.

Essentially, the Pota brings about the return of detention without trial under the old Internal Security Act but now it’s called the Pota. The decision to detain or not now vests with the board instead of the minister, as previously.

The decision to amend the Sedition Act imposes minimum penalties for various offences, including mandatory jailing.

“The new Section 5A provides that where a person is charged with an offence under subsection 4(1A) and there is a certificate in writing by the public prosecutor stating that it is not in the public interest to grant bail to the person charged, the person shall not be released on bail,” the bill reads.

Another amendment to the bill is “higher punishment meted for sedition offences involving bodily injury and damage to property”, with the fine removed and a minimum jail term of five years proposed.

“A minimum penalty of five years’ imprisonment and a maximum penalty of 20 years’ imprisonment will be imposed in consideration of the seriousness of the offence,” the bill states.

Minimum sentence is three years' jail

The amendment bill will not also have fines for minor offences and offenders will serve a minimum sentence of three years’ imprisonment.

“The amendment to subsection 4(1) seeks to substitute the current penalty for offences under subsection 4(1) with a minimum penalty of three years’ imprisonment a maximum penalty of seven years and to do away with the penalty of fine,” the bill says.

Considering that the Sedition Act has been very widely used by the police against opposition members, and more recently, the press as well, it has serious implications because people will be under detention while awaiting trial.

All in all, the Pota and the amendments to the Sedition Act go back to the days of the infamous Internal Security Act, which has been used for decades against political dissension.

The new law, and the Sedition Act amendments, have now reintroduced all the legislation done away with to free up the public space that the prime minister did before the general election of 2013 - and more.

Police powers will be back to where they were before the repeal of the ISA and the other oppressive laws under essential powers ordinances.

They are retrograde pieces of legislation that put an inordinate amount of power into the hands of the ruling government by providing the police force with excessive powers of investigation, detention and discretion which can be used against anyone who has legitimate dissent against the government. It removes any judicial intervention in these matters.

It basically intimidates the public into submission and discourages open discussion and discourse, including the formulation of solutions for many of the ills plaguing the country, such as poor and corrupt administration in some cases and making the government of the day more accountable to the people.

It curtails the democratic space and makes it more difficult for the press to unearth and present to the public information that should rightfully belong in the public domain. It creates a climate of fear and oppression and promises a high price to pay for those who do not submit.

No representative from Bank Negara

Consider too, one other strange piece of legislative change to the Retirement Fund Act of 2007 to not only expand its scope of operations but also to discontinue the practice of having a representative from BNM on the board of KWAP.

With the approval of the finance minister, it will be able to invest “in the development of buildings, infrastructure and natural resources, and the interest within”. That’s not the kind of investments a retirement fund should be investing in.

However there does not seem to be any amendment holding KWAP to any higher standard of disclosure comparable to that of it elder sister EPF. That means its funds can be used to prop up some of the government’s pet projects.

Yet another clause proposed would have the members of the board, investment panel, committee, officers and servants of the retirement fund, or any person attending any meeting of the board, panel, or any of its committees, sworn to secrecy on unpublished information, whether during or after the said person’s tenure. That’s clearly to stop any form of whistle-blowing - and certainly not encouraging.

While the government curtails discussion of key issues through the Sedition Act and is in a position to act against dissension by using in addition the new Pota, it is reducing oversight on a key government fund and its accountability to the public. That’s a dangerous combination.

Bill in support of hudud

The last piece of legislation comes from the opposition PAS, which has tabled a bill to make it easier for hudud to be introduced for Muslims. This has caused considerable consternation among non-Muslims as well as Muslims, some of whom maintain that these are not laws in the Quran.

While non-Muslims have been told that these laws do not apply to them, they cannot rest easy with such laws which prescribe heavy punishment for offences, even if they are only for Muslims.

Would not the next step be to extend such laws to everyone by arguing that the minority must fall in with the majority?

With the BN government still remaining silent on how its MPs will vote, will PAS get its bills passed by a simple majority? And what are the implications if it does?

Remember that the Kelantan assembly passed hudud with all assemblypersons present, including those from Umno, voting in favour.

All that cloud of uncertainty over Malaysia simply cannot be good for the country. People must be given the space to express all legitimate opinions without fear of retribution and threats. That is the essence of democracy. And a democratic government must be ultimately accountable to the people.

The government must, at all times, act in consonance with these basic concepts on which democracy depends but they are actually moving in the opposite direction. Instead of alleviating uncertainty and allaying fears, the government is adding to it.

That cannot be good, either for the government or for the people.

P GUNASEGARAM is founding editor of business news portal KiniBiz.