Chapter 1 – Report of the Policy, Law and Complaints Group on preventive detention of persons engaged in the commission or support of terrorist acts of listed terrorist organisations in a foreign country or any part of a foreign country, POTA violates the basic principles of human rights. The overall concerns and observations of the Commission are as follows: (i) A Total Period of 59 Days of Remand and the Lack of Judicial Discretion to Decide on the Necessity of the Remand The Commission notes that a person who is suspected of a link with terrorist activities could be placed under continuous remand for a period of 59 days under Sections 4(1)(a)15 and 4(2) (a)16 upon the production of written statements by the Police and Public Prosecutor that he is believed to be engaged in the commission or in support of a terrorist act. Although it was argued that this remand period is to be ordered by a Magistrate, the Commission is seriously concerned over the wording of these two subsections which appear to indicate that the Magistrate cannot exercise his or her judicial discretion in respect of the application for the remand if the prerequisites of Sections 4(1)(a) and 4(2)(a) are fulfilled. These subsections further limit the power of the Court to question the necessity of, and examine the evidence relevant to, the remand of the person in question. The Commission notes that the 59-day remand period may increase the likelihood of abuse, as alleged by former detainees of preventive laws who claimed that the police had used the detention period to extract evidence or information.17 In comparison, the Australian national security and anti-terrorism law provides that the police can only detain a person under preventive orders where there is a threat of an imminent terrorist attack and the order might help prevent it, or immediately after a terrorist act if it is likely that vital evidence will be lost (see Division 105.1 of the Australian Criminal Code Act 1995).18 Also, a person can be detained for a maximum of 48 hours under Commonwealth law, 14 days under state and territory 15 Procedure before a Magistrate Section 4(1)(a): Wherever any person is taken before a magistrate under subsection 3(3), the Magistrate shall – On production of a statement in writing signed by a police officer not below the rank of Inspector stating that there are grounds for believing that the name of the person who is engaged in the commission or support of terrorist acts involving listed terrorist organisations in a foreign country should be entered in the Register, remand the person in police custody for a period of twenty one days; 16 Section 4(2): Any person remanded under paragraph (1)(a) shall, unless sooner released, on or before the expiry of the period for which he is remanded, be taken before a Magistrate, who shall – (a) On production of – (i) a statement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to justify the holding of an Inquiry under section 10; and (ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is intended to hold inquiry into the case of that person under section 10, order the person to be remanded in custody for a period of thirty eight days. 17 SUHAKAM Annual Report 2008, p 38 18 Preventive Detention Orders: http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Preventativedetentionorders.aspx 60 BOOK-ANR2016-01-latest.indb 60 08/04/2016 3:32 PM