Background
Preventive detention has been described as “not a punitive but a precautionary measure and it restrains a man from committing a crime he may commit but has not yet committed…”.1 In Malaysia today, there are three statutes that provide for preventive detention which are Internal Security Act 1960 (Act 82) more popularly known as the ISA, the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) more popularly known as the “LLPK” (Langkah –Langkah Pencegahan Khas) (the Malay acronym).
The ISA was enacted with the sole purpose of combating the militant and subversive activities of the communists in Malaysia. Although the threat of communism in Malaysia is a subject of history lessons today, the ISA continues to be used unabated. The EPOPCO was enacted amidst the 1969 racial riots to stop the spread of violence and destruction that plagued certain parts of Malaysia. However, the law was not repealed even after the hostilities ended.
Over the years, the EPOPCO has been used to detain violent criminals and suspected gangsters who cannot be formally charged in court due to lack of evidence. The EPOPCO has been criticized severely by civil society groups for alleged abuse by the police for arresting and detaining individuals for cases where there is clear evidence to charge them formally in court and using the Act as an ‘easy way out’ in order dispense with police investigations and to search for evidence. Over the years, many Malaysians, including young people (some as young as 20–21 years old), have been detained under the EPOPCO in the Simpang Renggam Rehabilitation Centre, Johor or better known as the ‘Pusat Pemulihan Akhlak Simpang Renggam’ but whether these detainees are rehabilitated is a big question mark as a number of them end up going back to the centre after committing crimes again. Some graduate to commit even more serious crimes and end up being thrown back into the centre. It is for these reasons that the EPOPCO should be reviewed or possibly repealed.
The LLPK on the other hand was introduced to quell the drug menace in the country and many suspected drug traffickers have been detained without trial under this law. There have also been many instances where the persons have been freed by the court after due process but arrested again and detained indefinitely under the LLPK. The implementation of the LLPK has been criticised because there are strong allegations that the persons arrested under the LLPK are actually the ‘small fishes’ who are runners or agents for the big fishes i.e. the drug lords.
Exclusion of Judicial Review
These statutes have gained notoriety since they exclude any prospects of judicial review of the executive’s decision to detain someone without trial, which means that the reasons or merits of the decision by the Home Minister to detain a person without trial is unquestionable in any court. The decision to detain is done at the absolute discretion of Executive. Any challenge to a detention order can only be made on grounds of procedural impropriety.
It used to be that the initial 60 days detention2 by the police under the ISA could not questioned in any court. 3. However recently the Federal Court in Mohd Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals4 held that although it would not question the decision of the Executive as to what national security requires, it will nevertheless examine whether such detentions are in fact based on national security considerations. This was hailed as landmark decision as far as fundamental liberties are concerned. However this decision can also be criticized for reasons that would be discussed later in this article.
In so far as the ministerial order of detention issued under Section 8 of the ISA is concerned, the Federal Court in Kerajaan Malaysia & 2 Others v Nasharuddin bin Nasir5 has affirmed that there will be no judicial review of the minister’s order of detention made under Section 8 stressing that the subjective test is accorded to the Minister when he is exercising his discretion under Section 8 and that the court’s power to question the decision of the Minister is ousted by virtue Section 8 B of the ISA. This decision has been criticized as an affront to the rule of law and in fact it strengthens and perpetuates the rule of the Executive rather than the rule of law. The same provisions are also contained in EPOPCO6 and the LLPK7.
The exclusion of judicial oversight over the minister’s detention order has always been the subject of controversy and it is this state of affairs which makes the ISA different from other preventive detention laws in other countries. In essence, it gives the Executive ‘carte blanche’ powers to detain anyone without trial. This is, to say the least, draconian as it may give rise to abuse of power.
Post September 11
The aftermath of September 11, 2001 saw the emergence or increase of preventive detention legislation all over the world. In fact, the United Nations Security Council passed Resolution 1373 on the 28th September 2001 requiring all member states take immediate legislative measures to counter the threat of terrorism.
Preventive detention has been described as “not a punitive but a precautionary measure and it restrains a man from committing a crime he may commit but has not yet committed…”.1 In Malaysia today, there are three statutes that provide for preventive detention which are Internal Security Act 1960 (Act 82) more popularly known as the ISA, the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) more popularly known as the “LLPK” (Langkah –Langkah Pencegahan Khas) (the Malay acronym).
The ISA was enacted with the sole purpose of combating the militant and subversive activities of the communists in Malaysia. Although the threat of communism in Malaysia is a subject of history lessons today, the ISA continues to be used unabated. The EPOPCO was enacted amidst the 1969 racial riots to stop the spread of violence and destruction that plagued certain parts of Malaysia. However, the law was not repealed even after the hostilities ended.
Over the years, the EPOPCO has been used to detain violent criminals and suspected gangsters who cannot be formally charged in court due to lack of evidence. The EPOPCO has been criticized severely by civil society groups for alleged abuse by the police for arresting and detaining individuals for cases where there is clear evidence to charge them formally in court and using the Act as an ‘easy way out’ in order dispense with police investigations and to search for evidence. Over the years, many Malaysians, including young people (some as young as 20–21 years old), have been detained under the EPOPCO in the Simpang Renggam Rehabilitation Centre, Johor or better known as the ‘Pusat Pemulihan Akhlak Simpang Renggam’ but whether these detainees are rehabilitated is a big question mark as a number of them end up going back to the centre after committing crimes again. Some graduate to commit even more serious crimes and end up being thrown back into the centre. It is for these reasons that the EPOPCO should be reviewed or possibly repealed.
The LLPK on the other hand was introduced to quell the drug menace in the country and many suspected drug traffickers have been detained without trial under this law. There have also been many instances where the persons have been freed by the court after due process but arrested again and detained indefinitely under the LLPK. The implementation of the LLPK has been criticised because there are strong allegations that the persons arrested under the LLPK are actually the ‘small fishes’ who are runners or agents for the big fishes i.e. the drug lords.
Exclusion of Judicial Review
These statutes have gained notoriety since they exclude any prospects of judicial review of the executive’s decision to detain someone without trial, which means that the reasons or merits of the decision by the Home Minister to detain a person without trial is unquestionable in any court. The decision to detain is done at the absolute discretion of Executive. Any challenge to a detention order can only be made on grounds of procedural impropriety.
It used to be that the initial 60 days detention2 by the police under the ISA could not questioned in any court. 3. However recently the Federal Court in Mohd Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals4 held that although it would not question the decision of the Executive as to what national security requires, it will nevertheless examine whether such detentions are in fact based on national security considerations. This was hailed as landmark decision as far as fundamental liberties are concerned. However this decision can also be criticized for reasons that would be discussed later in this article.
In so far as the ministerial order of detention issued under Section 8 of the ISA is concerned, the Federal Court in Kerajaan Malaysia & 2 Others v Nasharuddin bin Nasir5 has affirmed that there will be no judicial review of the minister’s order of detention made under Section 8 stressing that the subjective test is accorded to the Minister when he is exercising his discretion under Section 8 and that the court’s power to question the decision of the Minister is ousted by virtue Section 8 B of the ISA. This decision has been criticized as an affront to the rule of law and in fact it strengthens and perpetuates the rule of the Executive rather than the rule of law. The same provisions are also contained in EPOPCO6 and the LLPK7.
The exclusion of judicial oversight over the minister’s detention order has always been the subject of controversy and it is this state of affairs which makes the ISA different from other preventive detention laws in other countries. In essence, it gives the Executive ‘carte blanche’ powers to detain anyone without trial. This is, to say the least, draconian as it may give rise to abuse of power.
Post September 11
The aftermath of September 11, 2001 saw the emergence or increase of preventive detention legislation all over the world. In fact, the United Nations Security Council passed Resolution 1373 on the 28th September 2001 requiring all member states take immediate legislative measures to counter the threat of terrorism.
| i. | United States of America |
| The USA was a vehement opponent of preventive detention laws which they saw as a serious breach of human rights and individual liberty.
However, the terrorist attacks on the World Trade Center in September 2001 forced America to change its stance. In October 2002, the USA adopted the PATRIOT
Act which provides for preventive detention of suspected terrorists. The Act provides for initial detention without charge of up to 7 days otherwise the AG
shall release the detainee. The Act also provides for detention of up to 6 months if it is found that the release of the detainee will threaten the national
security of the USA. The AG has the power to certify that the detainee is a terrorist and is likely to be engaged in activities that might threaten national
security. However, the AG’s certification will be reviewed every 6 months. One salient feature of the Act is that judicial review
of any action or decision including its merits is available via habeas corpus |
|
| ii. | Australia |
Australia
enacted the Australia Security and Intelligence Organization Amendment Act
2003, in response to the Resolution 13738. It provides for detention up to 7
days without charge of a person where such person need not be suspected of a
terrorist offence or any other criminal offence as the Minister need only be
satisfied that his detention will substantially assist the collection of
intelligence that is important in relation to a terrorism offence. One
striking feature of the Australian Act is that the detainee is permitted
while in detention to seek legal representation at least once in every
24–hours during the interrogation period. The detainee is also given the
right to seek from the Federal Court a remedy relating to the warrant of
detention or the treatment he is receiving during detention. A review of the
Act is also conducted to gauge its effectiveness and implications. |
|
| iii. | Canada |
|
The law which
allows for preventive detention in Canada is the Anti Terrorism Act 20019.
The scope of the Act is well defined as it only applies to persons suspected
of terrorism and terrorist groups. Thus, it does not apply to persons who
are involved in legitimate political activity. The Act allows for detention
of a person suspected to be involved terrorist activities for 24 hours
extendable for a further 48 hours, which is only allowed upon judicial
review. Further, other safeguards provided are that the AGs consent is
required to prosecute the financing of terrorism offences and the Solicitor
General must review the list of terrorists every two years and persons can
apply to be removed from the list and also to address cases of mistaken
identity. More importantly, the Act is subject to Parliamentary review. |
The Malaysian position
The element of reasonableness and fair–play found in the preventive detention laws of other countries are clearly absent from the ISA, EPOPCO and the LLPK w. The preventive detention laws in other countries do not contain such things as ouster clauses. The right to legal representation is a common feature especially during the initial detention period, unlike the Malaysian laws on preventive detention.
The ISA stands out as an arbitrary law as its application is not clearly defined. It seems to apply to all and sundry and this explains why it has been used against members of the opposition political parties, social activists, currency counterfeiters, security document forgers and persons smuggling illegal immigrants. The use of the ISA today has been diverted from its initial purpose of countering militant activities and subversion. On the other hand, the preventive detention laws in the countries examined above only apply to terrorists and persons who may be associated with terrorist activities.
Judicial pronouncements have indicated that the detainee has no right to counsel when under police detention for the sixty day period10 as provided under the ISA. The detainee also has no right to be present at hearing of his/her habeas corpus application11 . As far as detention per se is concerned the position seems unclear. In Mohd Ezam case the Federal Court decided that Section 73 and Section 8 of the ISA are separate and independent of each other. It is for this reason that his detention was deemed lawful even though the court found that the initial detention under section 73 by the police was unlawful as it found that the purpose of the detention was for intelligence gathering and had nothing to do with national security. The Appellants were not interrogated on their militant actions but were instead questioned on their political activities.
Although, the court’s reasoning in Mohd Ezam is laudable as far as the initial 60 days police detention is concerned, it is however respectfully submitted that the court’s decision in holding that Section 73 and Section 8 of the ISA are independent of each other is fundamentally flawed. This is because if the court finds that the initial police detention to be unlawful then it should follow that the Minister’s decision to detain is also unlawful since the root of the detention order by Minister stems from the initial arrest and detention by the police. The purpose of Section 73 is clearly laid down in Theresa Lim Chin Chin & Ors v Inspector General of Police12:
“Looking at the provision relating to preventive detention, we cannot see how the police power of arrest and detention under Section 73 could be separated from the ministerial power to issue and order of detention under Section 8. We are of the opinion that there is only one preventive detention and that is based on the order to be made by the Minister under Section 8. However, the Minister will not be in a position to make that order unless information and evidence are brought before him, and, for this purpose, the police is entrusted by the Act to carry out the necessary investigation and, pending inquiries, to arrest and detain a person, in respect of whom the police have reason to believe that there exists grounds which would justify the detention of such person under Section 8. There can be no running away from the fact that the police power under Section 73 is a step towards the ministerial power of issuing an order of detention under Section 8, which the Attorney – General referred to as the initial stage in the process leading to preventive detention”
In light of the decision of the then Supreme Court in Theresa Lim Chin Chin, it is clear that Section 73 of the ISA is an important safeguard provided to the detainee in order to prevent the Executive from making any arbitrary detention orders. It is unfortunate that the Federal Court in Mohd Ezam chose to ignore this important point. In essence, the decision in Mohd Ezam strengthens the executive’s discretionary power particularly when it comes to preventive detention. This is evident in the arrest and detention of five members of HINDRAF recently under the ISA where the Minister made an order to detain these individuals under Section 8 of the ISA even though the police made no arrest under Section 73. The High Court decided that their detention was lawful.
The way forward
The world has witnessed dramatic acts of terrorism in the recent years and as the saying goes “Terrorism has no borders and it does not choose it victims”. The reality is that we do not live in a state of utopia. We do not know when terrorists may strike but what we do know is that the society at large should be protected and that the rule of law and freedom should prevail. Hence the need for preventive detention laws. The pertinent question that arises here is how does one balance the need for such laws to protect society from tyranny and mayhem on the one hand and on the other hand, to ensure that such laws are not abused by the state to perpetuate its own agenda.
A comprehensive legislation should be drawn up to balance both competing interests and this is something that SUHAKAM and all civil society groups must seriously lobby the Government for. The new legislation which should replace the ISA, EPOPCO and the LLPK, must address the following issues:
The ISA stands out as an arbitrary law as its application is not clearly defined. It seems to apply to all and sundry and this explains why it has been used against members of the opposition political parties, social activists, currency counterfeiters, security document forgers and persons smuggling illegal immigrants. The use of the ISA today has been diverted from its initial purpose of countering militant activities and subversion. On the other hand, the preventive detention laws in the countries examined above only apply to terrorists and persons who may be associated with terrorist activities.
Judicial pronouncements have indicated that the detainee has no right to counsel when under police detention for the sixty day period10 as provided under the ISA. The detainee also has no right to be present at hearing of his/her habeas corpus application11 . As far as detention per se is concerned the position seems unclear. In Mohd Ezam case the Federal Court decided that Section 73 and Section 8 of the ISA are separate and independent of each other. It is for this reason that his detention was deemed lawful even though the court found that the initial detention under section 73 by the police was unlawful as it found that the purpose of the detention was for intelligence gathering and had nothing to do with national security. The Appellants were not interrogated on their militant actions but were instead questioned on their political activities.
Although, the court’s reasoning in Mohd Ezam is laudable as far as the initial 60 days police detention is concerned, it is however respectfully submitted that the court’s decision in holding that Section 73 and Section 8 of the ISA are independent of each other is fundamentally flawed. This is because if the court finds that the initial police detention to be unlawful then it should follow that the Minister’s decision to detain is also unlawful since the root of the detention order by Minister stems from the initial arrest and detention by the police. The purpose of Section 73 is clearly laid down in Theresa Lim Chin Chin & Ors v Inspector General of Police12:
“Looking at the provision relating to preventive detention, we cannot see how the police power of arrest and detention under Section 73 could be separated from the ministerial power to issue and order of detention under Section 8. We are of the opinion that there is only one preventive detention and that is based on the order to be made by the Minister under Section 8. However, the Minister will not be in a position to make that order unless information and evidence are brought before him, and, for this purpose, the police is entrusted by the Act to carry out the necessary investigation and, pending inquiries, to arrest and detain a person, in respect of whom the police have reason to believe that there exists grounds which would justify the detention of such person under Section 8. There can be no running away from the fact that the police power under Section 73 is a step towards the ministerial power of issuing an order of detention under Section 8, which the Attorney – General referred to as the initial stage in the process leading to preventive detention”
In light of the decision of the then Supreme Court in Theresa Lim Chin Chin, it is clear that Section 73 of the ISA is an important safeguard provided to the detainee in order to prevent the Executive from making any arbitrary detention orders. It is unfortunate that the Federal Court in Mohd Ezam chose to ignore this important point. In essence, the decision in Mohd Ezam strengthens the executive’s discretionary power particularly when it comes to preventive detention. This is evident in the arrest and detention of five members of HINDRAF recently under the ISA where the Minister made an order to detain these individuals under Section 8 of the ISA even though the police made no arrest under Section 73. The High Court decided that their detention was lawful.
The way forward
The world has witnessed dramatic acts of terrorism in the recent years and as the saying goes “Terrorism has no borders and it does not choose it victims”. The reality is that we do not live in a state of utopia. We do not know when terrorists may strike but what we do know is that the society at large should be protected and that the rule of law and freedom should prevail. Hence the need for preventive detention laws. The pertinent question that arises here is how does one balance the need for such laws to protect society from tyranny and mayhem on the one hand and on the other hand, to ensure that such laws are not abused by the state to perpetuate its own agenda.
A comprehensive legislation should be drawn up to balance both competing interests and this is something that SUHAKAM and all civil society groups must seriously lobby the Government for. The new legislation which should replace the ISA, EPOPCO and the LLPK, must address the following issues:
| (i) | the scope of its applicability should be clearly defined i.e. to detain terrorists in order to prevent terrorist acts. |
| (ii) | there must judicial review of the Executive decision to detain. |
| (iii) | no ouster clauses whatsoever. |
| (iv) | there must right to counsel and the right to appear in court to challenge the detention order. |
| (v) | the grounds and particulars of detention must be stated clearly to support the basis of the detention. |
| (vi) | the Courts must be given the powers to look into the merits of detention and not just procedural impropriety or technicalities. |
| (vii) | therefore the test should be an objective one and not the subjective test. |
| (viii) | there must full and frank disclosure of all facts relating to the arrest and detention to enable the Court to make an informed decision |
| (ix) | There must be parliamentary review at certain intervals to assess its operation, effectiveness, its relevancy due to changing circumstances, politically and socially and its impact and implications on human rights. |
Conclusion
Today, politicians from across the board have called for the repeal of the ISA. In fact, there is now an initiative in Parliament to garner support from MP’s from both sides to repeal the Act. This is a step in the right direction. In fact, in its 2006 Annual Report, SUHAKAM had in no uncertain terms called for the repeal of all preventive detention laws in Malaysia. This is a step in the right direction13. It can only be assumed that SUHAKAM made this call since it is clear that our preventive laws are archaic, out dated and not in line with international human rights standards. SUHAKAM ought to look into the creation of other alternative legislations that addresses the nine points mentioned above, in order to ensure that fair and equitable preventive laws are put in place to ensure that the rights of the detainees are protected and at the same time giving the Judiciary the necessary jurisdiction to review executive detentions orders. With the change in the Malaysian political landscape, where the opposition has managed to obtain a stronger representation in Parliament, we may finally be able to see SUHAKAM’s reports being debated in Parliament and if this happens SUHAKAM must be prepared to lobby and convince the Government that our existing preventive laws need to be repealed altogether in favour of a more equitable piece of legislation so that we can see some positive reforms being made in this area.
1R v Halliday [1917] AC 260
2Section 73 of the ISA
3Theresa Lim Chin Chin & Ors v Inspector General of Police [ 1988] 1 MLJ 293
4[2002] 4 MLJ 449
5Crinimal Appeal No: 05–75–2002(B) (Unreported)
6Section 7(C) (1)
7Section 11 C
8The Act was passed on 26th June 2003
9The Act came into force on 24th December 2001
10Refer cases of Theresa Lim Chin Chin and Mohd Ezam bin Mohd Noor
11The Federal Court decision in Ketua Polis Negara v Abdul Ghani Hassan 2001 4 MLJ 11
12Supra n.4
13Refer page 79 (c) of the 2006 report
1R v Halliday [1917] AC 260
2Section 73 of the ISA
3Theresa Lim Chin Chin & Ors v Inspector General of Police [ 1988] 1 MLJ 293
4[2002] 4 MLJ 449
5Crinimal Appeal No: 05–75–2002(B) (Unreported)
6Section 7(C) (1)
7Section 11 C
8The Act was passed on 26th June 2003
9The Act came into force on 24th December 2001
10Refer cases of Theresa Lim Chin Chin and Mohd Ezam bin Mohd Noor
11The Federal Court decision in Ketua Polis Negara v Abdul Ghani Hassan 2001 4 MLJ 11
12Supra n.4
13Refer page 79 (c) of the 2006 report