Preventive detention is an extraordinary measure as it permits executive dispensation of the personal liberty of an individual on the mere apprehension that, if free and unfettered, he may commit acts prejudicial to national security or public order. Given the extraordinary nature of this power, it is, therefore, contended that the scope of the power should be confined to genuine emergencies threatening the life of the nation. Notwithstanding this, Article 149 of the Federal Constitution of Malaysia empowers the Parliament to enact preventive detention laws, which authorize the executive to exercise the power of preventive detention without the precondition of an emergency. Furthermore, the Constitution does not stipulate adequate safeguards for mitigating the harshness of preventive detention laws. In this Article, it will be argued that the weaknesses of the constitutional provisions concerning preventive detention have enabled succeeding generations of executives in Malaysia to not only enact one preventive detention law after another--the most recent being the Prevention of Terrorism Act, 2015 (POTA)--but also to rely on them for arbitrarily detaining its political adversaries. Crucially, it will be demonstrated that the POTA is not only closely modelled on the controversial Internal Security Act, 1960 (ISA) but in some respects is more draconian in nature. Consequently, recommendations will be put forward in this article for insertion in the Constitution of Malaysia a number of guarantees with a view to obviate the possibility of the use of preventive detention legislation, such as the POTA, for arbitrarily encroaching on the liberty of individuals.
Preventive detention, also known as administrative detention, refers to the deprivation of an individual's liberty, either by order of the head of state or of any executive authority--civil or military--for the purposes of safeguarding national security or public order or other similar purposes without that individual being formally charged or brought to trial before a court of law. (1) Thus, the exercise of this extraordinary power permits the curtailment of one of the most fundamental human rights, namely, the right to personal liberty, without any finding of guilt. Accordingly, the International Commission of Jurists (ICJ), in its submission to the United Nations Human Rights Committee (HRC), prior to the drafting of a General Comment on Article 9 of the International Covenant on Civil and Political Rights (ICCPR) 1966, observed that "preventive security detention is, as a general matter, anathema to respect for human rights under the rule of law." (2)
Consequently, taking into account the extraordinary nature of the power of preventive detention, the ICJ in its submission to the Working Group on Arbitrary Detention had further opined that "a state may resort to preventive detention, ... to the extent strictly necessary to meet a threat to the life of a nation, and then only during a properly declared state of emergency." (3) In the same vein, the United Nations Human Rights Committee (HRC) opined that the exercise of preventive detention must be restricted to very limited and exceptional circumstances, (4) e.g. where a detainee would constitute a "serious threat to society which cannot be contained in any other manner." (5)
Notwithstanding the adverse impact of the exercise of the power of preventive detention on the human rights of individuals, international human rights law does not stipulate that the scope of its exercise should be confined to genuine emergencies. Rather it merely stipulates that the exercise of the power of preventive detention must not be arbitrary. (6)
The absence of adequate safeguards against arbitrary detention under international human rights law has facilitated modern constitutional democracies not to circumscribe the exercise of the power of preventive detention to emergencies. (7) Subsequently, there has often been a tendency to use the power as a means for deterring "legitimate political dissent and to imprison people for the non-violent exercise of fundamental human rights such as the rights to freedom of expression and belief and to freedom of association." (8)
The Constitution of Malaysia, which came into force in 1957, in pursuance of Article 149 permits resort to preventive detention during peacetime for the maintenance of public order. (9) Accordingly, pursuant to Article 149, a series of preventive detention statues have been enacted in Malaysia for dealing with the circumstances specified therein, which allegedly could not be dealt with by the ordinary criminal justice system. (10) The Internal Security Act 1960 (ISA) was the first among these statutes, which remained in force for nearly 52 years until it was repealed in 2012, and it permitted the executive to keep individuals in preventive custody for indefinite periods. (11) However, notwithstanding the repeal of the ISA, several of its provisions have been brought back by the executive branch of the government, principally through the enactment of the new security law, the Prevention of Terrorism Act, 2015 (POTA). (12)
In this article, light will first be shed on the provisions of Article 149 of the Constitution of Malaysia, which empower the Parliament to enact preventive detention laws during peacetime. Secondly, an endeavor will be made to examine the adequacy of the safeguards stipulated by the Constitution for mitigating the harshness of preventive detention laws. The objective of these analyses is to demonstrate that, due to the absence of adequate constitutional safeguards, preventive detention laws have been used by the executive to substitute the ordinary criminal laws and to silence legitimate political dissent. Subsequently, attention will be turned towards the focal point of this article, namely: a) the exploration of the necessity of the enactment of a further preventive detention statute, POTA, notwithstanding the presence of two relatively recent preventive detention laws, namely, the Security Offences (Special Measures) Act, 2012 (SOSMA), and the Prevention of Crime (Amendment and Extension) Act, 2014 (PCA), and b) the comparison of the provisions of the ISA and POTA concerning preventive detention so as to demonstrate that the POTA is not only closely modelled on the abolished ISA but in some respects is more draconian in nature. Finally, in light of these findings, recommendations will be put forward for insertion in the Constitution a number of safeguards for precluding the possibility of arbitrary use of preventive detention legislation in Malaysia.
PREVENTIVE DETENTION AND ARTICLE 149 OF THE FEDERAL CONSTITUTION OF MALAYSIA
The power to enact preventive detention laws during peacetime is vested in the Parliament by virtue of Article 149, which is a provision under Part XI, titled "Special Powers Against Subversion, Organized Violence, And Acts And Crimes Prejudicial To The Public And Emergency Powers," of the Federal Constitution of Malaysia. Once subversion of any kind has occurred, Article 149 of the Constitution enables the Parliament to make laws empowering the executive to take measures, not only for suppressing it but also for preventing its recurrence. (13) The only precondition to the enactment of a statute in pursuance of Article 149 is that the Act must have a recital stating, that "an action has been taken or threatened by any substantial body of persons whether inside or outside the Federation," and that the action that has been taken or threatened causes one of the following consequences stipulated by Article 149(1):
(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or
(b) to excite disaffection against the yang di-pertuan Agong or any Government in the Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof. (14)
The effect of Article 149 is that an Act of Parliament containing the necessary recital cannot be held invalid on any ground. (15) Accordingly, preventive detention legislation in Malaysia have contained recitals, which are identical to the wordings specified in Article 149. For instance, the ISA in its recital incorporated the first sentence of Article 149(1), i.e. "[w]hereas action has been ..." and subsequently included paragraphs (a) and (d) of this Article. In the same vein, the POTA has incorporated the first sentence of Article 149(1) and the second part of paragraph (f) to Article 149. (16)
It seems that if the question arises in a court of law as to whether there existed any of the circumstances mentioned in the recital of an Act passed in pursuance of Article 149, then the court is merely required to be satisfied that the Act in question contains the recital as required by Article 149. The court would not go beyond the recital to decide whether it was necessary to enact the Act in question. (17) This is evident from the enactment of the ISA, SOSMA, PCA, and POTA in 1960, 2012, 2014, and 2015 respectively.
Moreover, a close scrutiny of Article 149 of the Federal Constitution reveals that this constitutional provision is characterized by subjective terms, such as "substantial body," "substantial number," "cause to fear," "excite disaffection," and "promote feelings of ill will and hostility." All these terms embody wide areas of discretionary interpretation. The Parliament is not required to define the activities that are subversive or prejudicial to...