Academic journal article Suffolk Transnational Law Review

The Enactment of the Prevention of Terrorism Act, 2015, in Pursuance of the Constitution of Malaysia: Reincarnation of the Notorious Internal Security Act, 1960?

Academic journal article Suffolk Transnational Law Review

The Enactment of the Prevention of Terrorism Act, 2015, in Pursuance of the Constitution of Malaysia: Reincarnation of the Notorious Internal Security Act, 1960?

Article excerpt

ABSTRACT

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.

I. INTRODUCTION

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. …

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