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

By Naz, Safia; Bari, M. Ehteshamul | Suffolk Transnational Law Review, Winter 2018 | Go to article overview

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


Naz, Safia, Bari, M. Ehteshamul, Suffolk Transnational Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.