The Book of Prof Shad.docx

Pota was enacted under article 149 of the

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POTA was enacted under Article 149 of the Constitution. This means that like the ISA its provisions may violate the fundamental rights in Article 5 (personal liberty), Article 9 (freedom of movement), Article 10 (speech, assembly and association) and Article 13 (right to property). The law is directed at those engaged in “commission” or “support” of terrorist acts. The definition of “terrorist acts” is the same as in the Penal Code. However, the terms “commission” and “support” are not defined precisely. The activities must involve “listed terrorist organizations” specified in sections 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Finanacing & Proceeds of Unlawful Activities Act 2001 [Act 613]. The terrorist organizations must be in a foreign country. Action under the Act must be for the control of persons engaged in such acts. The procedure of preventive detention is that the police may detain without warrant up to 60 days for investigation without any charge (the investigation period). The sixty days include – 24 hours of arrest prior to production before a Magistrate (s. 3); 21 days of remand for police investigation by order of Magistrate (s. 4(1)(a)); and 105
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38 days of inquiry by an Inquiry Officer who is not a police officer (s. 4(2)(a) and s. 9(2). In contrast with SOSMA, there is no judicial review of the decision to detain; no due process to the suspect in that he does not get to defend himself before a court as under SOSMA after 28 days. Under POTA, the Magistrate concerned has no discretion. Affirmation by the investigating officer is sufficient to justify the remand. In conducting the investigation, the police officer is not constrained by legal rules of evidence or criminal procedure. He can secure evidence in any way he sees fit. The safeguards of Article 5(3) i.e. right to know the grounds of arrest and to be allowed to consult and be defended by a legal practitioner of his choice do not apply. No access to counsel is allowed. No reasons are supplied. Basically the police arrest first, investigate afterwards. The safeguard of Article 5(4) i.e. right to be produced before a Magistrate within 24 hours, however, applies (s. 3(3)). Positive feature However, unlike the ISA the power to detain preventively for two years lies not with the Minister but with an executive-appointed Prevention of Terrorism Board of 6 to 9 members. The head of the Board must have legal experience of at least 15 years. Members of the Board are appointed by the YDPA and have no security of tenure. Negative features Like the ISA, indefinite detention without trial is possible. Like the ISA the Act allows preventive detention up to two years at first instance and renewal for indefinite number of times thereafter. There is no limit to the number of years of detention.
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