The Book of Prof Shad.docx

Before the board there is no right to legal

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Before the Board there is no right to legal representation. The Board’s decision is final and there is no judicial review at any stage except on questions of procedure. The Board is appointed by the executive and its independence is a matter on which different opinions are bound to exist. The suspect has no presumption of innocence. This right (to judicial review on the ground of procedural ultra vires) may not amount to much because the Board determines its own procedure. 106
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A person remanded in custody may be released but shall be produced before a Sessions Court for the execution of a bond or police supervision (for 59 days). An electronic monitoring device may be fitted for 59 days. Like the Restricted Residence Enactment, the Board may order restricted residence up to five years, require suspect to report to the police or limit the suspect’s access to communication. Electronic monitoring devices may be required to be worn by persons under a restriction order to ensure that they remain in permitted areas and do not enter prohibited areas. A Register under the Registration of Criminals and Undesirable Persons Act 1969 [Act 7] containing the fingerprints and photographs of persons detained or restricted will be created. Those who are found to be in constant contact while under restriction may be imprisoned for five to fifteen years. A person on the Register will be liable to double the jail term or whipping if convicted for any offence. Some important safeguards in POTA (compared to the ISA) are first, that no person shall be arrested and detained solely for his political belief or political activity (s. 4(3)). However, in the absence of judicial review, how can this limitation be enforced? Second, every case of arrest by the police under this Act must be handed over to an independent Inquiry Officer who shall not be a police officer (s. 9(2)). Third, the Inquiry Officer shall communicate to the detainee the “substance of the evidence so far as he may consider it compatible with the public interest or the need to protect a witness or his family or associates…” Fourth, the Inquiry Officer shall report to the Board. Unlike the ISA where the Minister could act independently of the police and did not have to wait for a recommendation by the police under section 73, under POTA, the Board cannot act on its own. It must wait for the Inquiry Report. Fifth, the power to detain for two years has been taken away from the Minister and assigned to the Board. Sixth, the Board does not merely advise as under the ISA. It has power to adjudicate. It can order release of the detainee. Seventh, under POTA there is no death penalty as under some provisions of the ISA. Amendments to the Penal Code Under the Penal Code, which is our most important criminal statute, 19 separate sections deal with offences relating to terrorism. A comprehensive broad-ranging definition of terrorism is supplied. Its broad elements are: The act or threat is made with the intention of advancing a political, religious or ideological
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