Preventive Detention in Malaysia
Posted by Oscar the Grouch on September 13, 2008
The detention of RPK, Teresa Kok and Tan Hoon Cheng yesterday has shocked the nation. My heart and prayers are with them. There will be a lot of emotional postings and comments put on print in respect of the appalling conduct undertaken by the government. However, I am in agreement with the guidance advice issued by the Gerakan Mansuhkan ISA – namely, that we, Malaysians, remain calm and collected. That is the only way to go.
Emotions cannot be brutishly retaliated by blind passion and sentiment. Fight we must; but in composed manner, we have to.
With this in mind, I find it appropriate, and somewhat essential, that we, as Malaysians, equipped ourselves with background knowledge on that piece of legislation that has yet again gripped the nation in fear, the Internal Security Act 1960, or more commonly referred to as the ISA.
The ISA is only one of the laws that constitute the preventive detention laws in Malaysia; the other two being the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985. These laws were passed in accordance with Article 149 of the Federal Constitution, which allows Parliament to pass laws to take action against persons who :-
a) Cause fear or organized violence against a substantial number of citizens;
b) Excite disaffection against the Yang di-Pertuan Agong or the Government;
c) Promote feelings of ill-will and hostility between different races or classes of the population likely to cause violence;
d) Prejudicial to the public order or security of the Federation;
The Emergency (Public Order and Prevention of Crime) Ordinance 1969 was introduced to quell the spread of violence and destruction in the 1969 riots but over the years, it has been used to detain and restrict suspected gangster and violent criminals who cannot be charged for any offences due to lack of proof. In the case of the Dangerous Drugs (Special Preventive Measures) Act 1985, in was passed to combat the drug menace by enabling the detention without trial of any person suspected of involvement in drug-trafficking.
The ISA, on the other hand, bestow on the police and the Minister the power of preventive detention under sections 73 and 8, set out below :-
Section 73 ISA – Police Power of Arrest and Detention
(1) Any police officer may, without warrant, arrest and detain pending enquiries any person in respect of whom he has reason to believe –
(a) that there are grounds which would justify his detention under section 8; and
(b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.
(3) Any person arrested under this section may be detained for a period not exceeding sixty days without any order of detention having been made in respect of him under section 8.
Section 8 ISA – Ministerial Order of Detention
(1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order (hereinafter referred to as “a detention order”) directing that that person be detained for any period not exceeding two years.
(7) The Minister may direct that the duration of any detention order or restriction order be extended for such period, not exceeding two years, as he may specify, and thereafter for such periods, not exceeding two years at a time, as he may specify, either –
(a) on the same grounds as those on which the order was originally made;
(b) on grounds different from those on which the order was originally made; or
(c) partly on the same grounds and partly on different grounds;
Section 8b ISA – Ouster Clause
(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement governing such act or decision.
As you can see, the ISA is fairly described as draconian in nature. The police or the minister can detain any person as long as they are satisfied that that person is a threat to security. Basically, a person can be detained up to 2 years, without having been brought to court for a fair trial, and bearing in mind that the 2 years detention can always be extended. The court’s intervention, as a neutral pillar of justice, is somewhat limited. The only remedy that comes to mind is the right to Habeas Corpus.
Article 5 (2) of the Federal Constitution incorporates the ancient common law remedy of habeas corpus :-
5 (2) Where a complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is unlawful, shall order him to be produced before the court and release him.
Over the years, there have been a number of cases of detainees applying for the remedy of habeas corpus in detention under the ISA. In Inspector-General of Police v Tan Sri Raja Khalid bin Raja Harun (1988) 1 MLJ 182, the detainee, a director of the Perwira Habib Bank, was arrested and detained under section 73 (1) because the police had reasons to believe that the substantial losses suffered by the bank allegedly evoked anger among the armed forces and that it is likely that such feelings may lead to violence threatening the security of the country. The detainee filed for a writ of habeas corpus which was granted by the court as there was no evidence that the acts of the detainee were prejudicial to the country’s security.
In Mohamad Ezam bin Mohd Noor v Ketua Polis Negara (2002) 4 MLJ 449, Ezam argued that his detention was to gather intelligence and was not prejudicial to the national security. Although the High Court initially disallowed his application, on appeal, the Federal Court allowed the habeas corpus on the basis that the detention was mala fide as it was made with an ulterior or collateral purpose unconnected with the issue of national security.
Although there are cases which habeas corpus has been disallowed, these two cases gives us a glimmer of hope to the oppressive acts of the executive. The court should continue to hear such cases and inquire into the legitimacy of the detaining authorities’ belief as to whether the detainees had acted in a manner prejudicial to the security of Malaysia.
As for us Malaysians, you be the judge to decide whether RPK, Teresa Kok and Tan Hoon Cheng has acted, or were about or likely to act in a manner prejudicial to national security.