Wednesday, March 18, 2009


[This posting is based on 2 published articles by the author: Preventive Detention: Part I – Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63 & Preventive Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ cxxxii; [2007] 4 MLJA 132; and, a current work in progress: Brief Survey of the Legal History of Malaysian Law.]

There has been much focus on the infamous Internal Security Act 1960 (ISA) in recent times and even a movement calling for it to be repealed altogether. Is it the law that is bad or is it the manner in which the law has been applied by the executive and interpreted by the judiciary that has been found wanting? Although Malaysian constitutional law has its roots in English law and follows the ‘Westminster’ model and supposedly has the doctrine of ‘separation of powers’ there has been scant respect for it. In Malaysia, this constitutional concept has been reduced to being just a convenient tool to be used by the executive to increase its powers and at other times to be severely criticised as a remnant of British colonialism totally unsuitable and unsustainable in the modern Malaysia. The lack of respect for the parliamentary process is reflected in the comments of the former Prime Minister of Malaysia, Dr Mahathir, who has been quoted by Amnesty International [Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy,] as saying that:

(I)n the main, Parliamentary sittings were regarded as a pleasant formality... which would have no effect on the course of the government. The sittings were a concession to a superfluous democratic practice. Its main value lay in the opportunity to flaunt the Government's strength. Off and on, this strength was used to change the constitution. The manner, the frequency and the trivial reasons for altering the constitution reduced this supreme law of the nation to a useless scrap of paper. [The Malay Dilemma, 1970, Times Books International]

In addition to the ISA, preventive detention is also allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights. [Review of the Internal Security Act 1960, 2003, at p.x. ]

The sad truth and stark reality is that the Malaysian courts have not been notably vigilant to prevent the executive employing preventive detention as an easy substitute for adequate penal laws and using it as a means to suppress political opposition and dissent. ‘Anti-government’ has at times been simply equated to being ‘anti-national’. In their Report, the Reid Commission (that was entrusted with the job of drafting the Merdeka Constitution) mentioned that the rights they were recommending had already been firmly established throughout Malaya and the guarantee of the fundamental rights would be provided by the mechanisms of: the Constitution being the supreme law; ‘the power and duty of the Courts to enforce these rights’; and, ‘the Courts would annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’. [See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p.70 of the Report.]

Not only have the Malaysian courts failed to annul the encroachments on the fundamental rights but their lack of judicial activism has in fact subverted those rights further. The failure of the Malaysian courts in relation to the ISA starts with the fact that they have generally accepted the subjective satisfaction of the executive for justifying the detention of an individual.

In March 1988, Article 121(1)(b) of the Malaysian Constitution was amended to make the jurisdiction and powers of the court subject to federal law rather than the Constitution itself, thus making it possible for the Malaysian Parliament to limit or abolish judicial review by a simple majority vote rather than by the two-thirds majority required for a constitutional amendment. This was followed up by amendments to the ISA in 1989 that inserted sections 8A, 8B and 8C and they seem to slam the door shut altogether on judicial review where the substantive power is exercised by the Minister under section 8. The only review allowed is limited to procedural matters.

The courts have been most reluctant to address the fundamental issue of whether the amendment to Article 121(1)(b) of the Malaysian Constitution should even have been allowed to be made. They have preferred instead to repeatedly adopt the view taken by the Federal Court in Sugumar Balakrishnan (2002) 3 AMR 2817 that ‘the court must give expression to Parliament’s intention’ and inquire no further. In Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 the Court was willing to shackle its own powers when it decided that although section 8B of the ISA ousted the court’s review jurisdiction it was not unconstitutional and that ‘an ouster clause may be effective in ousting the court’s review jurisdiction if that is the clear effect that Parliament intended; that if the intention of Parliament is expressed in words which are clear and explicit, then the court must give expression to that intention.’

Malaysian legal history shows that for too long the Malaysian judges have dubiously circumvented or disingenuously interpreted any right that may have been available to a detenu into impotence. Raja Azlan Shah FJ (as His Highness then was) in Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, summed up the true attitude of the Malaysian courts when he even went so far as to say:

‘Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the constitution…’

Delivering the judgment of the Court, Steve L.K. Shim C.J. (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir, has accepted that under section 8 of the ISA, the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. Accepting that these rights are ‘draconian’ but, at the same time legitimate in a constitution that has a chapter on ‘fundamental liberties’, is paradoxical.

It is clear that the legislature has been active in closing the doors of judicial review but the courts themselves have also been helpful in the process. In almost all Malaysian cases, the judges have been quite content to allow the executive to exercise the power of detention unfettered by any restraining power. Higher constitutional ideals are seldom alluded to in their judgments and on most occasions it is an exercise in semantics to interpret the words of the Malaysian Constitution and other written laws to strenuously accommodate preventive detention laws.

There have been moments in the recent judicial history of Malaysia, which have given a glimmer of a hope that at last there may be small footholds on the slippery walls the detenu has to scale when attempting to challenge a detention order. However, on appeal in all cases the Federal Court has snuffed out any hope of the judiciary adopting a new and exciting approach. For fleeting moments it sometimes serves to revitalise the spirit of the Malaysian Constitution and the protection (no matter how limited) it affords to a detenu.

The current approach of the Malaysian courts only serves to reduce executive accountability and respect for human rights under the rule of law. Compliance with constitutional law, it is submitted, is not confined to compliance with the written word of the Malaysian Constitution but also the ideals on which the Constitution is based. Legislation incompatible with those ideals should be struck down. In such situations the courts should bring themselves to act in a supervisory role rather than the conservative role they have adopted for so long. Judges should be able to apply a heightened standard of judicial review and be involved in the genuine examination of the process and merits of any detention order and not be reduced to a rubber-stamping role as envisaged by the amendments to the ISA.

The concept of natural justice is not unknown especially in constitutional law. When the law in question is silent or ambiguous there is nothing to prohibit the courts from applying the principles of natural justice. In fact, even if the law has been clearly spelt out by the Federal Parliament, the courts would still be justified in striking it down if it violates basic principles of natural justice that the civilised world has come to accept as entrenched rights. Where the executive or administration has failed to observe natural justice, then deprivation of personal liberty may be characterised as being not ‘in accordance with the law’ and any person detained should be given relief. Malaysian courts have largely ignored that concept in the interpretation of preventive detention laws and will either rue that fact or will have to start being innovative and use it to break the almost choking stranglehold the executive has on the rights of a detenu. At present the executive tramples these rights with impunity and marches on relentlessly obliterating the remaining rights.

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