Preventive Detention in Malaysia: Constitutional and Judicial Obstacles to Reform and Suggestions for the Future

• Citation: Vol. 41 No. 2
• Publication year: 2013
• topic: Civil Rights,Constitutional Law,Criminal Law

PREVENTIVE DETENTION IN MALAYSIA: CONSTITUTIONAL AND JUDICIAL OBSTACLES TO REFORM AND SUGGESTIONS FOR THE FUTURE

Tyler James Brent Jeffery^*

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................536

II. THE BACKGROUND OF PREVENTIVE DETENTION IN MALAYSIA ....538

A. The Internal Security Act..........................................................538
B. Constitutional Impediments to True Civil Liberties.................539
C. The Subjectivity Standard and the Role of the Judiciary.........543
D. Other Malaysian Detention Laws That Have Been Used in Conjunction with the ISA..........................................................547
E. Public Response to the ISA.......................................................549
F. Failure of the New "Reform" Laws.........................................551

III. OTHER APPROACHES TO PREVENTIVE DETENTION........................554

A. Singapore: Same Law, Different Approach..............................554
B. Canada: Guidance for Just Preventive Detention Laws.........................................................................................558

IV. THE WAY FORWARD FOR INCREASED FREEDOM IN MALAYSIA.....560

A. Healthy Skepticism of the Government's Promises..................560
B. An Appropriate Reading of Article 149 is Essential................561
C. Changing the Constitution........................................................562
D. Restoration of the Judiciary.....................................................563
E. Public Commitment to Human Rights Through Treaties.....................................................................................563
F. Strict Limitations on the Use of Preventive Detention in the New Laws.................................................................................564

V. CONCLUSION...................................................................................565

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I. Introduction

"I could not imagine then, that the time would come when the power of detention, carefully and deliberately interlocked with Article 149 of the Constitution, would be used against political opponents, welfare workers and others dedicated to nonviolent, peaceful activities."¹

So wrote the British lawyer Hugh Hickling, architect of the Internal Security Act (ISA).² Originally enacted over fifty years ago in the British colony of Malaya in order to combat a Communist insurgency, the ISA was used for decades to repress the civil rights of Malaysians.³

From 1960 to 2012, the Malaysian government and its ruling party used the act and its powers of endless detention to their utmost limits to silence political dissidents and government opponents.⁴ Although the ISA gained brief legitimacy as Western nations enacted similar preventive detention laws in the wake of the terrorist attacks on September 11th, 2001,⁵ in 2011 the wave of public sentiment against the ISA reached critical mass, spurred on largely by the capricious and extrajudicial nature of high profile detentions.⁶ These detentions of leading public figures both incensed and emboldened the public, while simultaneously increasing awareness of the extensive powers granted to the Executive branch of the Malaysian government by the ISA.⁷ Following the extensive public outcry about the ISA and its use, the current Prime Minister of Malaysia, Najib Razak, bowed to the wishes of the people on September 15, 2011, in a Malaysia Day⁸ speech.⁹ He announced the end of the ISA, and the

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reworking of its provisions into two new laws that would protect the people and also uphold civil liberties.¹⁰ It seemed like the day that all of Malaysia had been waiting for: a new era of justice and liberty beginning with the end of this draconian law. However, the promise of increased civil liberties that seemed inherent in a repeal of this hated law has not borne out.

With much fanfare, the ISA was repealed in April 2012, and replaced by the two new laws that Najib promised.¹¹ Rather than eliminating the practices that made the ISA so controversial, the new laws have codified the worst of its abuses, and as a result, use of these new laws may lead to even further injustice.¹² The history of systematic oppression that has existed since Malaysian independence in 1957 continues even as the Malaysian government boasts of its reformist credentials. Therefore the critical question on the future of Malaysia is not when specific laws will be repealed, or whether they will be replaced, because the Malaysian government has already done so. The critical question is what can be done to ensure that what replaces repealed laws like the ISA will foster civil liberties and contribute to the end of the practices that have so marred Malaysia's political and social history.

To answer that question this Note will first emphasize the need for a complete reworking of the ISA in light of the injustice perpetrated by the Malaysian government when using this act, then assess the prospect of a revised ISA that reflects a balance between freedom and security, and finally, detail steps to ensure new security laws, such as those that replaced the ISA, are used in a limited and just manner. Part II will review the creation of the ISA and other preventive detention laws, discuss the constitutional and judicial postures in relation to these types of laws, recount the events that led to the repeal of the ISA, and discuss the failures of the new "reform" laws passed by the Malaysian legislature. Part III will review and analyze Singapore's legal posture on preventive detention and the use of its own ISA (copied from Malaysia), and will also review an example of preventive detention law reform from Canada. Part IV will advocate for reform of

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preventive detention laws in Malaysia by suggesting constitutional changes and other methods to improve Malaysian civil liberties. Finally, Part V will provide concluding remarks, reemphasizing the importance of a new approach to civil liberties in Malaysia.

II. THE BACKGROUND OF PREVENTIVE DETENTION IN MALAYSIA

A. The Internal Security Act

In 1948, the British colonial government of Malaya responded to a Communist insurgency by declaring a state of emergency and drafting the Internal Security Act under the auspices of the Emergency Regulations Ordinance, thereby giving colonial authorities the power to arrest and detain without trial anyone they believed to be involved in anti-government action.¹³ The declared state of emergency was not lifted until July 31, 1960,¹⁴ three years after Malaysia's independence from Britain.¹⁵ The government was still fearful of the persistent Communist insurgency however, and did not want to give up the power of preventive detention, which it believed was still needed to continue the fight against the ongoing threat.¹⁶ In the place of the laws passed during the emergency, and to ensure that the "Government [did] not . . . relax its vigilance against the evil enemy who still remains as a threat on [the] border,"¹⁷ the Malaysian government re-enacted the British ISA through the Internal Security Act 1960. The Act's stated purpose being "to provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organized violence against persons and property in specified areas of Malaysia, and for matters incidental thereto."¹⁸ Although the first Prime Minister of Malaysia, Tunku Abdul Rahman, promised the nation the law

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would only be used against Communists, the text of the Act makes no mention of this.¹⁹ Rather, the requirements for triggering preventive detention are embodied in general language, allowing it to be used against any group that the Malaysian Parliament believes presents a threat to the security of Malaysia.²⁰

As discussed below, the Internal Security Act was the main legal tool used by the Malaysian government to suppress civil liberties in Malaysia until its repeal in April 2012.²¹ The use and interpretation of this law throughout Malaysian history is an excellent lens through which to examine the preventive detention framework in Malaysia, and is a good indicator of how the Malaysian government will interpret these types of laws in the future, including the new "reform" laws that are being enacted.

B. Constitutional Impediments to True Civil Liberties

The Malaysian Constitution, on its face, purports to be a progressive document guaranteeing due process of law,²² freedom from arbitrary detention,²³ equal protection,²⁴ freedom of speech and assembly,²⁵ and freedom of religion.²⁶ Examining only these articles in the Constitution, it is hard to believe that a law such as the ISA exists, let alone that it is routinely used to subvert these rights. However, the Constitution contains three very important articles which allow Parliament to disregard any of these rights, or any other article of the Constitution, under certain conditions.

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Article 150 allows the Yang di-Pertuan Agong (Sultan) to declare a state of emergency.²⁷ During this state of emergency, the executive power "extend[s] to any matter within the legislative authority of a State,"²⁸ the Parliament is given the power to "make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency,"²⁹ and the judicial branch is stripped of all powers of judicial review.³⁰ This Article has been invoked by the Sultan four times since independence:³¹ in September 1964, as a result of a conflict with Indonesia, who protested the formation of Malaysia;³² in September 1966 after the dismissal of the Chief Minister of one of the Malaysian states and the resulting constitutional impasse;³³ in May 1969, in the aftermath of widespread racial riots and violence in the capital of Kuala Lumpur;³⁴ and in November 1977 after another constitutional crisis where a Chief Minister refused to step down after a vote of no...