I hope that it will be of some use to some of you out there.
The dissertation is reproduced here without the 233 footnotes. If anyone would like a copy of the dissertation with the footnotes, kindly contact me.
The original contents page of me dissertation is as follows:-
1.1 What is “Preventive Detention” in this essay?
1.2 The objective of this essay
1.3 Outline of this essay
1.4 What this essay will not be dealing with
2. The provisions of the ICCPR regarding preventive detention
2.1 When is preventive detention allowed?
2.2 Rights of person detained
3. The law in Malaysia and Singapore
3.1 The legal provisions
3.2 Grounds for detention
3.3 Rights of person detained - to be informed of the reasons of detention
3.4 Rights of person detained - to take proceedings before a court
3.5 Rights of person detained - treatment under detention
3.6 Rights of person detained - compensation
4. Conclusions and recommendations
For ease of reference, kindly use the "Contents" links on the sidebar of this blog.
For obvious reasons, kindly refrain from reproducing any portion of this essay without prior permission.
First, it is important to define what is “Preventive Detention” as this phrase will be used over and over again in this essay.
Preventive detention must be differentiated with detention in the criminal justice system where a person is detained based on suspicion of having committed a criminal offence.
Greer in his paper “Preventive Detention and Public Security – Towards a General Model” states that “…as the label suggests, its purpose is to prevent future conduct rather than to detain until trial or to punish/correct for an offence which has already been committed” .
However, this still leaves a wide definition. This may include detention for drug rehabilitation or on grounds of mental illness. Greer observes that the term ‘preventive detention’ has also been used to refer to “sentences of imprisonment imposed upon recidivists by the courts in order to protect the public from the risk of serious harm, which are longer than the offender may be said to ‘deserve’.”
It is for this reason that Harding & Hatchard added the word ‘security’ to the title of their book to indicate that the preventive detention dealt with therein is the preventive detention which is justified on the basis of national security. It is this definition that will be adopted for the purposes of this essay.
Further, the preventive detention dealt with in this essay is the de jure preventive detention. De jure preventive detention are “…detentions which are in principle capable of being sanctioned by the constitutional and legal order in which they occur. … The constitution or statutory provisions provide the basis for their legality…” .
1.2 The objective of this essay
When this essay was being prepared, the objective was to look at the laws regarding preventive detention in the South East Asian states. However, due to the limits set to this essay, the focus was narrowed to just 2 states in the South East Asia region, Singapore and Malaysia (hereinafter referred to collectively as “the States”).
The States are viewed as the 2 most successful states in the region economically. However, the same cannot be said in terms of respect for the international standards of human rights.
The States have been resisting ratifying the International Covenant on Civil and Political Rights (“ICCPR”). However recent developments have added pressure on them to do so. The first will be the fact that Indonesia had ratified the ICCPR ON 23 February 2006. Secondly, Malaysia has been appointed to be part of the UN Human Rights Council.
This essay is premised on the optimistic hope that the States will ratify the ICCPR in due course.
The primary objective of this essay is to examine if the laws of the States regarding preventive detention are compatible with the provisions of the ICCPR. If the States were to ratify the ICCPR, such laws must conform to the standards and limitations set out in the ICCPR.
1.3 Outline of this essay
Very briefly, this essay will be divided into 2 main sections. The first will be dealing with the provisions of the ICCPR which are relevant and applicable in cases of preventive detention. The second will analyse the preventive detention laws of the States and see if they are compatible with the provisions of the ICCPR.
For ease of reference, an outline of the essay is provided for in the “Contents” on page 1.
1.4 What this essay will not be dealing with
1.4.1 Should preventive detention be allowed at all?
There are some who are of the view that preventive detention of any kind should be prohibited for the reason that preventive detention is carried out to prevent the commission of a wrong. The argument is that any detention should only be allowed on the basis that the person detained has committed a wrong.
Others argue that preventive detention are allowed but should be considered as “irregular laws, justified only by clear and present danger to public order or security or other similar emergency, and should remain in force, subject to renewal for a limited period” .
While these arguments raise some interesting points, it will not be dealt with here. As stated above, this essay is basically about how compatible the provisions regarding preventive detention in the States are with the provisions of the ICCPR.
As the ICCPR is drafted in a manner that anticipates preventive detention and does not prohibit it completely, this essay will be based on such premise and not delve into the rights and wrongs of preventive detention.
In their book, Harding and Hatchard have gone on the assumption that “…whether we like it or not, preventive detention is a fact of life, and rather than simply wring their hands or pretend that it is not really their concern but a ‘political matter’, lawyers should find ways of ensuring that, so far as possible, the law develops in a way which is consistent with human rights…” .
In like manner, this essay will see if the laws on preventive detention are consistent with the provisions of the ICCPR.
1.4.2 Political considerations
Preventive detention has been allegedly used and is presently being used to further the political objectives of the government at the expense of the basic rights of the people.
The Human Rights Watch was of the view that “the draconian and anachronistic ISA (the Internal Security Act 1960 which allows for preventive detention in Malaysia) has long been and continues to be used as a tool to stifle peaceful political dissent. Political activists in the past have been detained under the ISA for more than a decade without trial” .
However, as this essay is first and foremost a legal academic exercise, the political matters will not be dealt with. Instead, the focus will be mainly on the legal aspect of preventive detention, specifically, on the statutes and the case law relating to such cases, and to see if they are compatible with the provisions of the ICCPR.
1.4.3 Other human rights treaties and provisions
The provisions of other human rights treaties, be it international or regional, will not be dealt with in this essay. Only the provisions of the ICCPR will be referred to.
While it may be helpful to refer to other human rights treaties (as well as the case law under those treaties eg. decisions of the European Court of Human Rights) to assist in understanding the provisions of the ICCPR, there will however be no comparison made between the preventive detention laws of the States with the provisions of other human rights treaties.
It would also unfortunately not be possible to include other relevant provisions in this work.
1.4.4 Other forms of preventive detention
Preventive detention in this essay is limited to the definition given above. There are other forms of preventive detention which merits some consideration but due to the limitations set on this essay, will not be dealt with here.
The ICCPR guarantees the right of the individual to liberty. Article 9(1) provides inter alia that everyone has the right to liberty. This is based on the Universal Declaration on Human Rights where Article 9 of the same provides that “No one shall be subjected to arbitrary arrest, detention or exile”.
What must be stated from the outset is that the ICCPR does in fact provides for exceptions to the general rule, and these exceptions clearly includes situations of preventive detention. The Human Rights Committee (“HRC”) itself conceded that “…administrative detention may not be objectionable in circumstances where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner… .” .
In this section, the relevant provisions in the ICCPR will be examined to set out the extent and the limits to preventive detention that is permitted therein. The relevant provisions considered here are Articles 9, 10, 7, 14 and 17 . A brief outline of this section is as follows:-
1. When preventive detention is allowed (Article 9(1))
2. Rights of persons detained:-
(a) Right to be informed of reasons of detention (Article 9(2))
(b) Right to take proceedings before a Court (Article 9(4)). This includes the right to equality before the Courts (Article 14);
(c) Treatment of persons detained:-
(i) Right to be treated with humanity and with respect for the inherent dignity of the human person (Article 10);
(ii) Right not to be subject to torture, inhuman or degrading treatment or punishment (Article 7);
(iii) No interference with family life (Article 17);
(d) Right to compensation for unlawful detention (Article 9(5)).
2.1 When is preventive detention allowed
Article 9(1) provides as follows:-
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Helena Cooke was of the view that this prohibition against arbitrary and unlawful detention is among the most fundamental of all human rights .
The HRC in their General Comment no. 8 makes it clear that Article 9 is applicable to all forms of detention. In paragraph 1 of the General Comment, it is stated that “…paragraph 1 (of Article 9) is applicable to all deprivations of liberty, whether in criminal cases or in other cases… .”.
Further, for avoidance of any doubts for this essay, paragraph 4 of the said General Comment states that “…if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions”.
As such, under Article 9(1), preventive detention is permitted if it is not arbitrary and if it is based on grounds and procedures established by law.
According to the case of Hugo van Alphen v. the Netherlands , the burden to show that the detention is not arbitrary is on the State. The HRC in that case went on to explain “arbitrariness” based on the drafting history of Article 9. It held as follows in paragraph 5.8:-
“‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must further be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime”
Based on this explanation, a detention is considered to be arbitrary if it is unreasonable or unnecessary. The State must therefore be able to show that the detention was appropriate, just and predictable.
The HRC have found a violation of Article 9(1) when the arrests and detentions were arbitrary . It does not matter if the detentions were on grounds and procedure established by law.
2.1.2 Grounds and procedures established by law
Article 9(1) clearly states that both the grounds of detention as well as the procedures must be established by law. So not only must there be a legal justification to detain a person, the manner in which such person is detained must be provided for in law.
In the case of Clifford McLawrence v. Jamaica , the HRC held that “…the principle of legality is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation” .
If domestic law does not justify the reasons for detention, or if one is detained not in accordance with the procedures set out by domestic law, Article 9(1) will be violated.
But does “established by law” only refer to domestic law?
The Office of the High Commissioner for Human Rights in cooperation with the International Bar Association referred to the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (“ECHR”), in particular, Article 5 of the ECHR to help understand what is meant by “established by law” .
Article 5 of the ECHR provides that “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…”.
In the European Court of Human Rights’ decision of Case of Steel and Others v. the United Kingdom , the Court held as follows:-
“the expressions ‘lawful’ and ‘in accordance with a procedure prescribed by law’ in Article 5 § 1 stipulate not only full compliance with the procedural and substantive rules of national law, but also that any deprivation of liberty be consistent with the purpose of Article 5 and not arbitrary (...). In addition, given the importance of personal liberty, it is essential that the applicable national law meet the standard of ‘lawfulness’ set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in all circumstances, the consequences which a given action may entail.”
Therefore, applying the same reasoning to Article 9(1), “established by law” does not just mean that the detention is in compliance with the relevant domestic law of a State party but the detention must be in compliance with the standard of lawfulness set by the ICCPR.
Further, in the HRC’s decision in A v. Australia held that by “…stipulating that the court must have the power to order release ‘if the detention is not lawful', article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant. This conclusion is supported by article 9, paragraph 5, which obviously governs the granting of compensation for detention that is ‘unlawful’ either under the terms of domestic law or within the meaning of the Covenant” . As such “lawful” in Article 9(4) and (5) means that it must be in accordance with the standard of lawfulness set out in the ICCPR.
Based on A v. Australia, it is submitted that “established by law” in Article 9(1) has the same meaning as “lawful” in Article 9(4) and (5). It would not make sense if the word “lawful” in Article 9(4) and (5) has a wider meaning than “established by law” in Article 9(1). If “established by law” only refers to domestic law, it could result in an embarrassing situation where a detention is found to be established by law in accordance with Article 9(1) but a Court can order the release from detention under Article 9(4) because the detention is not lawful in accordance to Article 9(4).
Even if it may be argued that the case of A v. Australia is not applicable to Article 9(1) and that the decision of the European Court is not binding on the provisions of the ICCPR, it is submitted that it would not make a difference as in any event, any detention carried out by a State party of the ICCPR should be in compliance with the standards of lawfulness set out in the ICCPR.
There are 3 hurdles before preventive detention can be allowed:-
It must not be arbitrary, i.e. not unreasonable and not unnecessary;
It must be on grounds and procedures established by domestic law;
It must be in compliance with the standard of lawfulness set out in the ICCPR.
2.2 Rights of person detained
2.2.1 Right to be informed of reasons of detention (Article 9(2))
Article 9(2) provides that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”.
The first question that arises is whether this is applicable to cases of preventive detention. While the words “informed of any charges” seem to imply that this section refers specifically to arrests made in a criminal case, General Comment No. 8 states in paragraph 4 that in cases of preventive detention, information of the reasons of detention must be given in accordance to Article 9(2).
The next question is how much information must be given to satisfy the requirement in this provision. The HRC in the case of Adolfo Drescher Caldas v. Uruguay held that information given without the substance of the complaint against the person detained is not sufficient and is a violation of Article 9(2). The reason behind this according to the HRC is because “…the Covenant requires that anyone who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the reasons given are invalid or unfounded” .
Therefore, in Essono Mika Miha v. Equatorial Guinea , the HRC held that being informed that the detention was made by the order of the President is insufficient and discloses a violation of Article 9(2).
While the ECHR provides that the language used to inform the person detained must be in a language that he understands, the ICCPR is silent on this. Having said that, it is implied that the language used must be understandable to the person detained as the rationale for informing him is to enable him to take whatever steps to secure his release.
The final question is when the reasons must be informed. The provision itself states that it must be done “…at the time of arrest”.
However, in the case of Michael and Brian Hill v. Spain , the detainees alleged that they were held for seven and eight hours respectively before they were informed of the reasons of their arrest. Nevertheless, the HRC did not find a violation of Article 9(2) based on the circumstances of the case. The State contended that “…police formalities were suspended from 6 a.m. until 9 a.m., when the interpreter arrived, so that the accused could be duly informed in the presence of legal counsel. Furthermore, the interpreter was not an ad hoc interpreter but an official interpreter appointed according to rules that should ensure her competence” .
It is submitted therefore that if the reasons were not informed immediately at the time of arrest but within a reasonable time, there would be no violation of Article 9(2). As to what can be considered a reasonable time will depend on the facts of the case and the circumstances surrounding the detention.
In the case of Deon McTaggart v. Jamaica , the HRC held that since the detainee met his solicitor within a week of the arrest, “it was therefore highly unlikely that neither the author nor his Jamaican counsel were aware of the reasons for his arrest”. In his the partly dissenting opinion, Mr. Martin Scheinin was of the view that as the State party had failed to answer in the proper way the detainee’s allegations of not being informed of the reasons of his arrest, there is a violation of Article 9(2). It is submitted that this view is preferable.
The reasons of arrest must be informed to the detainee
There must be sufficient information to enable the detainee to challenge his detention if he believes it to be unlawful
It must be informed at the time of arrest, or if not possible, within a reasonable time.
2.2.2 Right to take proceedings before a Court (Article 9(4))
Article 9(4) provides as follows:-
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
General Comment no. 8 of the HRC leaves no doubt that this provision applies in cases of preventive detention . Examples of such proceedings are habeas corpus and amparo proceedings.
Helena Cook was of the view that this provision “…may well be the only judicial remedy available to administrative detainees…” as the provision under Article 9(3) which provides that a detainee be brought promptly before a judge or an authorised officer only applies in criminal proceedings.
As such, the importance of this provision cannot be overstated. This is all the more so as it could be the only way a detainee can complain about any abuses while in detention.
The first thing to note about this provision is that the detainee is entitled to take proceedings before a court. Unlike Article 9(3), there is no obligation on the part of the state to bring the detainee to court. The proceedings must be initiated by the detainee. In the case of Stephens v Jamaica , the HRC found no violation of Article 9(4) when the detainee could have but did not do so .
However, the state is obliged “…to make available to the person detained the right of recourse to a court of law” :-
• In the case of Eric Hammel v. Madagascar , the HRC found a violation of Article 9(4) as the applicant was “…unable to take proceedings before a court to determine the lawfulness of his arrest” ;
• Further, the HRC in Berry v Jamaica held that failure to ensure access to legal representation results in a violation of Article 9(4) since the detainee “…was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention” ;
• If a person is effectively barred from taking such proceedings, there is a violation of Article 9(4). This was held in Guillermo Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato v. Uruguay where the detainee was held incommunicado;
• In Mario Torres v. Finland , the detainee was first detained by orders of the police for several days until the detention is confirmed by the relevant Minister. He could only challenge the detention after the minister confirms the detention and therefore he could not have challenged the detention under the police orders in court. The HRC found the detention before the Minister’s confirmation to be a violation of Article 9(4) .
The next thing to note is that the provision specifically mentions proceedings before a court only and not merely an officer authorised to exercise judicial power as in the case of Article 9(3). It must be a court of law with “a judicial character” . As such, in the case of Mario Torres v. Finland , it was held that the opportunity for the detainee to appeal to the relevant minister does not satisfy the requirement of Article 9(4). It went further to hold that Article 9(4) “…envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence in such control” .
Further, the court must be one which not only has the jurisdiction to decide on the lawfulness of the detention, the court must also be empowered to order the release of the detainee if it finds the detention to be unlawful. As already discussed above, the standard of “lawfulness” in this provision is the standard of lawfulness under the Convention, and not the domestic law. Helena Cook also was of the view that “lawfulness” should encompass both procedural and substantive elements . This would mean that the court should be able to investigate whether the procedures were correct as well as examine the reasons behind the detention.
As to the requirement that the court may decide “without delay”, it was held in Torres v. Finland that it should be as “…as expeditiously as possible…” and “…be assessed on a case by case basis” .
Finally, the right to take proceedings before a court of law will surely include the right to a fair hearing. While Article 14 deals mainly with criminal hearings, it does provide that “All persons shall be equal before the courts and tribunals”.
The State has no obligation to bring the detainee to Court. However, the State is obliged to make available the right to the detainee
The proceedings are to be taken before a Court
It must be a Court of law with judicial character
It must be a Court with the jurisdiction to decide on the lawfulness of the detention
It must be a Court with the power to order the release of the detainee if the detention is found to be unlawful
The State must guarantee a right to a fair hearing
2.2.3 Treatment of persons detained
(a) Negative and positive
Article 7 provides as follows:-
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation
Article 10(1) provides as follows:-
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
In its General Comment , the HRC state that Articles 7 and 10 are related in that “…(t)he prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant”.
The rights regarding the treatment of those detained are extremely important. In Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer , it was observed that the detainee “… is virtually cut off from outside life, and thus also vulnerable to treatment violating his or her rights. The continuing widespread use of torture and other inhuman or degrading treatment or punishment of these categories of people, whose cries for help in moments of pain can be heard by nobody except fellow inmates, constitutes an intolerable insult to human dignity”.
(b) Article 7
The HRC observed that the provision in Article 7 does not contain any definitions of the terms therein , not do they view that there is any necessity to draw up a list or to “…establish sharp distinctions between the different kinds of punishment or treatment” .
The Committee explained that the aim of article 7 “…is to protect both the dignity and the physical and mental integrity of the individual ”. Regarding the different terminology used, “…the distinctions depend on the nature, purpose and severity of the treatment applied” .
Examples of where a violation of Article 7 has been found includes threats , beatings, assassination of fellow detainees , not allowed to see a doctor , injuries resulting from the application of electric discharges , blindfolded and dunked in a canal .
(c) Article 10(1)
The HRC in its General Comment makes it clear that this provision applies to those in preventive detention . It went on to state that “…(t)reating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule” and that this rule must be applied with any form of discrimination .
Examples of situations where a violation of Article 10(1) has been found include confined to a 2-metre-square cell for 22 hours each day, and remained isolated from other men for most of the day; he spent most of his waking hours in enforced darkness, had little to keep him occupied, and was not permitted to work or to undertake education , a lack of bedding and furniture, as well as a shortage of toiletries like soap, toothpaste, toilet paper etc., no integral sanitation in the cells, open sewers and piles of rubbish, no doctor available, being kept in a small cell most of the day in darkness , only given “a piece of sponge and old newspapers” to sleep on, given “food not fit for human consumption”, “treated with brutality by the warders whenever complaints were made” , not given food , denied recreational facilities , a “…mock execution set up by prison warders and the denial of adequate medical care”
(d) Solitary confinement
The HRC noted that “…prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7...” of the Covenant.
The HRC found held that solitary confinement of detainees to be a violation of both Article 7 and/or 10(1) .
However it is interesting to note that in A. Vuolanne v. Finland , it was held that there was no violation of Article 7 nor of Article 10. In that case, it was alleged that the detainee was “… locked in a cell of 2 x 3 metres with a tiny window, furnished only with a camp bed, a small table, a chair and a dim electric light”. The HRC was of the view that it did not appear the solitary confinement produced any adverse physical or mental effects on the detainee. Further, it had not been established that the detainee “…suffered any humiliation or that his dignity was interfered with apart from the embarrassment inherent in the disciplinary measure to which he was subjected”.
This decision seems to imply that solitary confinement is therefore permissible, depending on the physical and mental make-up of the detainee. The problem will be who is allowed to make the decision on when it is allowed and when it is not. Further, it appears to suggest a subjective test and places the burden to prove it on the detainee. It is submitted that it should be an objective test i.e if a person is detained in such a way, would it cause humiliation and embarrassment to a reasonable person or not.
The HRC is of the view that State parties should implement provisions that prohibit incommunicado detention . The Committee have held that a detainee being held incommunicado is a violation of Article 7 or of both Articles 7 and 10 .
(f) Contact with family members
Closely related to the issue of being detained incommunicado, the HRC have also held that interference with family life constitutes a violation of Articles 7 and 10 .
Artilce 17(1) provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…”.
In the case of M. A. Estrella v. Uruguay , the HRC found that the measure of control and censorship over prisoners’ correspondences was a violation of Article 17 read with Article 10(1).
While not stated explicitly in Article 7, the HRC is of the view that to “…guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends” . State parties are also to “…ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill-treatment” .
It is submitted that one of the best prevention is to have in place an effective system of remedying such violations. Would-be violators would not think twice if such system is not available for the detainee.
The HRC states that Article 7 should be read together with article 2(3) regarding the State’s undertaking to ensure an effective remedy to those whose rights have been violated. It goes on to explain that this means that “…the right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law” and that “complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective” .
The HRC has also instructed State parties to disseminate the relevant information concerning the ban on torture etc. to the population at large . They have also emphasised inter alia the importance of instructing and training personnel who have authority over those detained
Detainees should be treated humanely and should not be subjected to torture or to cruel, inhuman or degrading treatment or punishment
Prolonged solitary confinement may amount to a violation of Article 7
Incommunicado detention and interference with family life are violations of Articles 7 and 10(1)
2.2.4 Right to compensation for unlawful detention (Article 9(5))
Article 9(5) provides as follows:-
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
General Comment no. 8 of the HRC leaves no doubt that this provision applies in cases of preventive detention .
Once the detention is found by a court of law in accordance with Article 9(4) to be unlawful, the person wrongly detained is entitled to compensation. This provision is further supported by Article 2(3) where State party undertakes to ensure that persons whose rights are violated shall have an effective remedy.
The main problem is that while the HRC may be of the view that compensation is to be paid pursuant to Article 9(5) , it has no authority to enforce it.
A brief outline of this section is as follows:-
3.1 The legal provisions
3.2 Grounds for preventive detention
3.3 Right of person detained - to be informed of reasons of detention
3.4 Right of person detained - to take proceedings before a Court
3.5 Right of person detained - Treatment of persons detained:–
(i) Access to the outside world
(ii) The conditions of the places of detention
(iii) Respect for the inherent dignity of the human person, freedom from torture, inhuman or degrading treatment or punishment
3.6 Right of person detained - to compensation for unlawful detention
3.1 The legal provisions
3.1.1 The Constitution
Preventive detention is provided for in the Federal Constitution of Malaysia. Article 149(1) provides as follows:-
If an act of parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation -
(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof,
any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13 , or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.
Similarly, preventive detention is provided for in the Constitution of Singapore. Article 149(1) is similar to its Malaysian counterpart and is as follows:-
If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or outside Singapore —
(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;
(b) to excite disaffection against the President or the Government;
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the security of Singapore,
any provision of that law designed to stop or prevent that action or any amendment to that law or any provision in any law enacted under clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14 , or would, apart from this Article, be outside the legislative power of Parliament.
Basically, these constitutional provisions allow any Act of Parliament containing the pre-requisite recital cannot be held invalid on any ground . Abu Bakar Munir notes that the Malaysian provision in effects allows the parliament to merely recite in an Act of Parliament that the actions mentioned in Article 149 has been taken or threatened before exercising the powers in this Article. He went on to note that “(t)he actions or threats which could give rise to such recital appear as broad as language could provide for. … These are wide powers.”
In Yazid bin Sufaat v. Suruhanjaya Pilihanraya Malaysia , the court held that the Malaysian Internal Security Act (MISA) “…is a law enacted under art 149 of the Federal Constitution which state that any law introduced for the purposes of curbing any activities that is prejudicial to public order or the security of the country or part thereof is valid notwithstanding that it is inconsistent with the provision of art 5, art 9, art 10 or art 13. Hence, when person is detained under the ISA, he looses the aforesaid rights guaranteed under the Federal Constitution. Such deprivation of the rights is given by the constitution itself”.
These provisions thus give preventive detention in Malaysia and Singapore a constitutional status. There are many Acts of Parliament which had been passed as a result of this provision . However, due to the limitations on this essay, only one will be made the focus of this essay - the Internal Security Act.
3.1.2 The Internal Security Act 1960
Both the MISA and the Singaporean Internal Security Act (“SISA”) provides for 2 methods of preventive detention – one by the police and another by the Minister .
(a) Preventive Detention by the police
Section 73 of the MISA and section 74 of the SISA empowers any police officer to arrest without warrant and detain any person.
The MISA allows for detention for a period of up to 60 days while the SISA only allows for detention up to 30 days .
The person detained may be held “…in any prison, or in any police station, or in any other similar place authorised generally or specially by the Minister” .
(b) Preventive detention by the Minister
Section 8(1) of both the MISA and SISA provides that the Minister may make an order directing that a person be detained for a period not exceeding 2 years.
The MISA provides that the Minister may order an extension of detention not exceeding 2 years on the same grounds, or different grounds or partly on the same grounds . The SISA similarly provides that the President may direct the detention to be extended for periods of not more than 2 years at a time .
3.2 Grounds for detention - When is it allowed?
3.2.1 The legal provisions
Section 73(1) MISA allows any police to detain any person when he has reason to believe that:-
(a) there are grounds which would justify his detention under section 8; and
(b) 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.
Section 74(1) of the SISA is similar but ends at “…any part thereof” in paragraph (b).
According to Section 8(1) of the MISA, the minister may make a detention order if he 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”.
As for section 8(1) of the SISA, the minister may make a detention order if the “…President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore or any part thereof or to the maintenance of public order or essential services therein, it is necessary to do so…”.
3.2.2 A comparison with Article 9(1) ICCPR
(a) Is it arbitrary?
To determine whether it is arbitrary, the test as discussed above is to see if the detention is unreasonable or unnecessary i.e. if it was inappropriate, unjust and there is a lack of predictability.
It is submitted that the main problem is the wide powers given to the police officers and the Minister. The phrase “acting in any manner prejudicial to the security of…” the country is extremely general and could cover a wide spectrum of acts.
The Malaysian Federal Court was of the view that “What matters of national interest are infinitely varied. So are matters of national security of the State” .The MISA has been used “…[s]tarting with those accused of being communists, it soon was used against students, academics, Shi’a Muslims, human rights activists, journalists, religious clerics, trade unionists, political opponents, civil society leaders, and those accused of being ‘terrorists’… and detain people for the peaceful expression of their religious and political beliefs” . In its report , the South Asian Human Rights Documentation Centre observed that those detained previously under the MISA include “…political activists, religious minorities such as Shias, journalists, student leaders, traders, academicians, NGO activists and, most recently, 10 persons accused of spreadin ‘’rumours’ of bomb attacks via email”.
The use of the SISA is not any less varied. The SISA has been used “…against members of the Barisan Sosialis (Socialist Front),… trade unionists, students, lawyers, journalists, … social workers, playwrights… and Catholic church workers.”
As such, it is submitted that there is clearly a lack of predictability in the use of the power to detain under the MISA and the SISA.
It is also rather alarming to note that under section 73 of the MISA and 74 of the SISA, a fresh junior police officer or even a guard or watchman in a protected place may arrest and detain without warrant based solely on the ground that he has reason to believe there are justified grounds under the MISA or the SISA.
It is submitted that such wide ranging powers should not be given so freely as this will only increase the possibility of abuse.
Extension of detention
In respect of the maximum of 60 days detention under section 73 of the MISA, the Malaysian Commission on Human Rights (“SUHAKAM”) in their review of the MISA was of the view that it is disproportional to the main aim which is to gather further intelligence. SUHAKAM state that the power to detain for up to 60 days “appears to be unreasonable, excessive and ought to be reduced…” .
SUHAKAM have in their investigation observed that there have been specific examples where the extensions granted were not required at all .
As for the powers under section 8 to extend the duration of the detention, it is pointed out that while it is limited to a period not exceeding two years, it can nevertheless be done again and again as the MISA and SISA does not limit the number of times a detention can be extended .
Perhaps one of the most famous SISA detainee is Chia Thye Poh, a former member of Singapore’s Parliament representing the Socialist Front. After his resignation in 1966 in protest against harassment from the ruling party, he was detained under section 8 of the SISA and was only released to be confined to a small island with severe restrictions in 1989 . Another detainee is one Michael Fernandez, a labour activist who was detained without trial for 9 years from 1964 to 1973
This means that one can be detained indefinitely for a long period of time without ever being charged in court. It is submitted that this goes against the basic concept of criminal law where everyone is presumed innocent until proven guilty. In this case, a person who is presumed innocent can be incarcerated for years.
Further, while a convicted prisoner knows when his incarceration will end, the same cannot be said for those detained under the MISA and the SISA. There is uncertainty of when he will be released, if ever because the executive can keep on renewing the detention order under section 8.
It is based on this that it is submitted that the provisions of the MISA and the SISA cannot be said to be appropriate and just.
Challenge to detention
As for the detention under section 8, section 8B of the MISA and SISA provides that there shall be no judicial review in any court of any act done or decision made by the Minister or the President (in respect of the SISA) in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision .
This in effect means that the detainee will not have any opportunity to dispute and refute the allegations made against him. This goes against the principles of natural justice and fundamental international law of the presumption of innocence and the opportunity to defend oneself against any allegations and charges.
Basically, if the executive is of the view that a person is a threat to the national security of the country, that is cast in stone. The person will not have any opportunity to defend himself or to even question the validity and/or reasonableness of such a view taken by the executive. It is submitted that this surely cannot be reasonable. While executive can be given the benefit of the doubt to take all measures to investigate and come to its conclusion, it is submitted that the executive cannot be treated as infallible. Furthermore, it is inappropriate and unjust as it can be easily abused.
As such, it is without doubt that the provisions on preventive detention discussed above covers a wide spectrum of matters, confers too wide a power to far too many people, and in some cases allows unlimited extensions and is not opened to be challenged in a court of law. It is submitted that the said provisions are unjust, inappropriate, clearly lacks in predictability and unreasonable. The said provisions clearly are arbitrary in nature.
(b) It must be on grounds and procedures established by domestic law
As stated above, the preventive detention laws in Malaysia have constitutional status. The provisions for detention are provided for in the Constitution of the land as well as in the MISA and SISA, and various other Acts of Parliament.
It was reported during the 1987 political crisis in Malaysia, 119 people were arrested under the MISA. In additional to that, 3 major newspapers were closed down while there was a ban on all public meetings and political rallies. All these were however legal in nature “in the sense that they were provided for by existing laws…” .
(c) It must be in compliance with the standard of lawfulness set out in the ICCPR.
The standard of lawfulness set out in the ICCPR has been dealt with in the earlier section. The first standard was that it must not be arbitrary and must be provided for in law. As discussed above, it is submitted that the preventive detention provisions in the MISA and the SISA are indeed arbitrary in nature.
As for the other standards under the ICCPR, this hurdle will be dealt with in the following sections, where the provisions of the MISA and SISA will be compared with the standards set out in the ICCPR.
3.3 Right to be informed of the reasons of detention
3.3.1 Constitutional guarantees
Article 5(3) of the Malaysian Constitution and Article 9(3) of the Singaporean Constitution provides that “(w)here a person is arrested he shall be informed as soon as may be of the grounds of his arrest…”.
It was held in Aminah v Superintendent Of Prisons, Pengkalan Chepa, Kelantan that Article 5 is clearly meant to apply to arrests under any law whatsoever in force in Malaysia and this view was affirmed by the Federal Court in Assa Singh v Menteri Besar, Johore .
In Yit Hon Kit v. Minister of Home Affairs, Malaysia , the detainee was detained under the Emergency (Public Order and Prevention of Crime) Ordinance, 1969 (the “EPOPCO”). The learned Judge held that “complaint of failure to inform the person arrested of the grounds of his arrest, contrary to the first limb of Article 5(3), if substantiated, can render his subsequent detention unlawful” .
Furthermore, the Federal Court in Mohamad Ezam’s case held that Article 5(3) of the Malaysian Constitution still applies – albeit regarding the right to consult a legal practitioner – in cases of detention under the section 73 MISA.
Article 151 of the Constitution of Malaysia and Singapore are similar and provides as follows:-
(1) Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention-
(a) the authority on whose order any person is detained under that law or ordinance shall, as soon as may be, inform him of the grounds for his detention and, subject to Clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be;
(3) This Article does not require any authority to disclose facts whose disclosure would in its opinion be against the national interest
3.3.2 MISA and SISA
Section 11(2) of the MISA and section 9 of the SISA provides that at the time of being served with the detention order, the detainee shall be informed of the grounds on which the order is made and the allegations of fact on which the order is based.
The MISA requires also that the detainee be informed of such other particulars, if any, as he may in the opinion of the Minister reasonably require in order to make his representations to the Advisory Board against the order .
It is submitted that the legal provisions on this issue are in accordance with the provisions of the ICCPR. The slight concern may be that in the MISA, the particulars given to the detainee are those which are “in the opinion” of the Minister to be reasonably required. It is submitted that it is preferable if the words “in the opinion of the minister” be removed.
Further, it is submitted that Article 151(3) of the Federal Constitution can be used (or misused) to refrain from giving sufficient details to the detainee. However, the Federal Court in Mohamad Ezam’s case held that “Article 151(3) of the Constitution merely barred information concerning matters of national security from being disclosed to the detainee but not to the court as such. …[T]here was nothing to indicate any such prohibition from disclosure to the courts for the purpose of judicial review” .
3.4.1 Making the right available
(a) Representations before the Advisory Board
Article 151(1)(a) of both the Malaysian and Singaporean Constitution provides that the detainee shall be given the opportunity to make representations against the detention order “as soon as may be”. Further, 151(1)(b) of the Malaysian Constitution provides that no citizens shall continue to be detained under that law or ordinance unless an advisory board has considered any representations made by him under paragraph (a) and made recommendations thereon to the Yang di-Pertuan Agong (the King) within three months of receiving such representations, or within such longer period as the Yang di-Pertuan Agong may allow. Whereas 151(1)(b) of the Singaporean Constitution provides that no citizen shall be detained for a period exceeding 3 months unless as advisory board has considered the representations made.
Therefore, while the representations to the advisory board must be made “as soon as may be”, the Singaporean Constitution provides that it must be made within 3 months from the detention . In Lee Mau Seng’s case , it was held that “…art 151 does not prohibit an order of detention from specifying that the citizen therein named is to be detained for a period exceeding three months. Article 151(1)(b) makes the continued detention of the named citizen after three months unlawful unless its requirements have been complied with” .
Section 11 of the MISA and the SISA also provides that all persons detained under section 8 “shall be entitled to make representations against the order to an Advisory Board”.
(b) Judicial Review
Section 365(1)(b) of the Malaysian Criminal Procedure Code provides that the “High Court may whenever it thinks fit direct that any person who is alleged to be illegally or improperly detained in public or private custody within the limits of the Federation, be set at liberty”.
There is no equivalent provision in the Singaporean Criminal Procedure Code. However, section 5 of the same provides that in the event of a lacuna, the criminal procedure law in England shall apply as long as it does not conflict and is not inconsistent with the Singaporean law. In fact, the Singaporean Court of Appeal made many references to the UK Habeas Corpus Act 1816 in the case of Chng Suan Tze v. Minister of Home Affairs where the application for habeas corpus was allowed.
Article 5(2) of both the Malaysian and Singaporean Constitutions provides that “where 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 lawful shall order him to be produced before the court and release him” .
The case of Sejahratul Dursina @ Chomel bte Abdullah v Kerajaan Malaysia implied that an application for habeas corpus can be made on behalf of the detainee.
It is submitted that the right has been made available in the Constitutions and the legislations.
3.4.2 Proceedings must be before a court of law
(a) Proceedings before the Advisory Board
It is clear that the Advisory Board is not a court. All the Advisory Board is empowered to do is to hear the representations and make recommendations . It therefore does not have any judicial character, lacks jurisdiction to decide on the lawfulness of the detention and is powerless to order the release of the detainee. It cannot be considered as a court of law.
Furthermore, section 12(2) of the SISA provides that the Advisory Board will make recommendations to the president who in turn may give the minister such directions as he thinks fit. At the end of the day, it is the president himself who will make the decision regarding his (the president’s) own satisfaction in section 8! Surely this goes against the principle of natural justice nemo debet esse judex in propria sua causa where no one is to be judged in his own case.
(b) Judicial Review in Malaysia – pre1989 amendments
As for the judicial review proceedings, it is taken before a court of law with judicial character. The court has the power and indeed have on occasions ordered the release of the detainee upon finding the detention to be unlawful .
(i) A guaranteed right
The right of a detainee to judicial review of his detention, specifically an application for habeas corpus was discussed in Yeap Hock Seng v Minister of Home Affairs . In that case, the detainee was detained under section 4(1) of the EPOPCO, a provision similar to section 8 of the MISA . The Senior Federal Counsel argued that an application for habeas corpus at that stage was premature as the detainee had the right under the EPOPCO to make representations to the Advisory Board.
Abdoolcader J disagreed and held as follows:-
The court must never, in my view, lose sight of the fact that a detention order made under section 4(1) of the Ordinance results in the deprivation of freedom without trial and constitutes a serious transgression upon the fundamental right of liberty of the person. Habeas corpus is a high prerogative writ of summary character for the enforcement of this cherished civil right of personal liberty and entitles the subject of detention to a judicial determination that the administrative order adduced as warrant for the detention is legally valid, in the sense that it is pursuant to valid statutory authority, and to test whether the detention proceedings are …a mere sham, nothing but an empty form. The grant of habeas corpus is as of right and not in the discretion of the court …”
(ii) Burden of proof
As for the burden of proof, the learned Judge held that the State has the burden to show lawful justification for the detention. This can be done by relying on the detention order made in exercise of a valid legal power. Once this burden has been discharged, the onus lay on the detainee to show that such power had been exercised mala fide or improperly .
(iii) Justiciability of minister’s discretion
An example of when the Minister’s powers were used improperly is the case of Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia where it was argued that the executive had not adequately applied its mind to the desirability of detaining the detainee .
Another example is the case of Minister for Home Affairs v Jamaluddin bin Othman . The detainee was held on the ground that he was involved in some programme to propagate Christianity amongst Malays. The allegation of facts showed that he participated in meetings and seminars and had converted six Malays. The High Court Judge in allowing the application held that the MISA does not override the right to freedom of religion contained in Article 11 of the Federal Constitution. The Supreme Court affirmed the High Court’s decision and was of the view that the acts alleged were not sufficient to be regarded as a threat to the security of the country.
However, the same cannot be said about the subjective decision of the Minister. The learned Judge in Yeap Hock Seng’s case conceded that it is “settled law that the subjective determination of the Minister is not justiciable. The courts have consistently declined to review the exercise of ministerial discretion when its validity is impugned in habeas corpus proceedings (Liversidge v Anderson  AC 206; Greene v Secretary of State for Home Affairs  AC 284. The court cannot be invited to undertake an investigation into the sufficiency of the matters upon which the satisfaction of the Minister purports to be grounded but can examine the grounds disclosed by the Minister to see they are relevant to the object which the Ordinance prescribes.”
The Supreme Court in Minister for Home Affairs, Malaysia v Karpal Singh held that “…whilst the grounds of detention stated in the detention order are open to challenge or judicial review if alleged to be not within the scope of the enabling legislation, the allegations of fact upon which the subjective satisfaction of the Minister was based are not” .
(c) Judicial Review in Malaysia – Post-1989 amendments
The Bill inserted the new Section 8B(1) which provides that the judicial review that is permitted is only “in regard to any question on compliance with any procedural requirement” in the MISA. Even this power is further restricted by section 8A where the detention order is still valid even if certain procedural requirements have not been followed .
Cases relating to detention under section 8 of the MISA subsequent to the amendment have therefore only dealt with procedural issues like the content of the detention order . The recent Federal Court decision of Abdul Razak bin Baharudin v. Ketua Polis Negara held and confirmed that an order of the Minister under section 8 of the MISA may only be challenged on the ground of procedural non-compliance . This specifically rules out challenging the grounds or reasons given by the Minister, as well as allegations of mala fide .
However, it went on to state that the amended section 8B does not cover an act done or decision made by a police officer under section 73 of the MISA. The leading decision on section 73 post-amendment is the Federal Court decision of Mohamad Ezam where the Court held as follows:-
The test under section 73(1) is an objective test. The Court held that “given the enormous powers conferred upon police officers including minor officials such as guards and watchmen and the potentially devastating effect or effects arising from any misuse thereof, …it therefore makes sense that the subjective judgment accorded to the minister under s 8 cannot be extended to the police in the exercise of their discretion under s 73(1)” . The Court could therefore “enquire into the arresting officers' 'reason to believe' when the appellants' arrests were effected…” .
The court was of the view that it can “examine whether the executive's decision was in fact based on national security considerations. Here, the court was entitled to inquire into the basis for the detaining authority's reasons to believe that the appellants had acted or were about to act or were likely to act in a manner prejudicial to the security of Malaysia” .
The detention can be challenged on the ground that it was made mala fide. Mala fide “does not mean at all a malicious intention. It normally means that a power was exercised for a collateral or ulterior purpose” . The onus is on the detainee to prove mala fide.
(d) Judicial Review in Singapore – pre1989 amendments
(i) Burden of proof
In Chng Suan Tze’s case , the Court of Appeal held that the initial burden was on the executive to justify the legality of the detention under s 8 of the ISA. This is discharged “…only by the production of the detention orders and evidence of the President's satisfaction” .
The Court held that it “...cannot be presumed from the mere fact that the minister has made a detention order under s 8(1) of the ISA, that the requisite satisfaction of… the President, has been complied with” .
The Court went on to hold that evidence of the President’s satisfaction can be produced either by way of direct evidence “…from the President himself or by way of evidence from any Cabinet minister or the Secretary to the Cabinet (or from the authorised minister), that the Cabinet (or the authorised minister) was satisfied and that the President after receiving the advice of the Cabinet (or the authorised minister) was satisfied” .
As the Respondent failed to discharge the burden of showing that the President was satisfied as required under s 8 of the ISA before the detention order was made, the appeals were allowed on that ground.
(ii) Justiciability of the president’s discretion
In Lee Mau Seng v. Minister of Home Affairs, Singapore & Anor , the court was of the view that mala fides is not a justiciable issue in the context of the SISA. The court held that if the issue was justiciable, it would mean that the court could “…substitute its own judgement for the subjective satisfaction of the President acting, in accordance with the advice of the Cabinet… and this runs contrary to the provisions of section 12(2) of the Act which makes the decision of the President final and not to be called into question by any court” .
However, it is submitted that this is misleading as section 12(2) specifically refers to the decisions made by the president after considering the recommendations of the advisory board and not the decision to issue the detention order in the first place.
The case also held that “…it is not open to a court in Singapore to examine the grounds and allegations of fact supplied to the applicant… for the purpose of deciding whether or not some or all of them are so vague, unintelligible or indefinite… .” as the discretion given to the president is not justiciable .
In the High Court case of Wee Toon Lip & Ors v Minister of Home Affairs & Anor , the court also held that ”bad faith” is not a justiciable issue under the SISA.
However, this position was changed when the Court of Appeal in Chng Suan Tze’s case held that the satisfaction of the President is open to be reviewed by the Courts. The Court was of the view that the subjective test could no longer be supported and that the objective test was applicable. Therefore, while “…a court would not question the executive's decision as to what national security required, the court could examine whether the executive's decision was in fact based on national security considerations; similarly, although the court would not question whether detention was necessary for the purpose specified in s 8(1), the court could examine whether the matters relied on by the executive fell within the scope of those specified purposes” . The scope of review of these discretions is limited to the “GCHQ grounds” of illegality, irrationality or procedural impropriety and the burden of proving these grounds lies on the applicant.
It must be noted that as the SISA requires the satisfaction of only the president before a detention order is made, any allegation of mala fide must be directed and proven against the president. This was held in the High Court decision of Lim Hock Siew & Ors v. Minister of Interior and Defence . As the facts of the case reveal that the applicants have alleged bad faith on the part of the government, this ground was rejected by the Court.
(iii) Conditions of detention
It was held in the case of Lau Lek Eng & Ors v. Minister of Home Affairs & Anor that habeas corpus is not an available remedy when the “…grounds relied on by the applicants in support of their application for habeas corpus relate to the manner and conditions of their detention and not to the legality of their detention under the Act” .
This was reiterated in Chng Suan Tze’s case , where the Court of Appeal held that “as a general rule therefore, where the manner in which detention is conducted is alleged to be unlawful whether because the conditions are alleged to be punitive in nature or excessively harsh, the detainee's remedy is to challenge the validity of the conditions of the detention, not the lawfulness of the detention itself” .
However, the court’s jurisdiction to decide on the lawfulness of the detention is severely restricted when a bill was passed on 23 June 1989 .
(e) Judicial Review in Singapore – post 1989 amendments
Following the Court of Appeal’s decision in Chng Suan Tze’s case , the government of Singapore wasted no time in amending the laws. In December 1988, the Bills to amend both the Constitution and the ISA were introduced in Parliament and the same were passed on 25th January 1989. The amendments to the constitution took effect beginning 26th January 1989 while the amendments to the ISA took effect on the 28th January 1989.
The amendment to the Constitution was the inclusion of Article 149(3) as follows:-
If, in respect of any proceedings whether instituted before or after the commencement of this clause, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause.
Section 8 of ISA was amended by adding a section 8B to make “…the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on 13 July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply” .
Further, as in the MISA, judicial review is only restricted “…to any question relating to compliance with any procedural requirement of this Act governing such act or decision” . The new section 8D gives these amendments a retrospective application.
With reference to section 8B, the Court of Appeal in Teo Soh Lung v Minister of Home Affairs & Ors held that the relevant decision that was “…applicable and declared in Singapore on 13 July 1971…” was indisputably the case of Lee Mau Seng v Minister of Home Affairs and no other case . Therefore, section 8B should be construed as reinstating the principles enunciated in Lee Mau Seng’s case .
Further, the High Court in Teo Soh Lung’s case and Vincent Cheng’s case held that section 8B(1) and 8B(2) of the ISA had “…effectively excluded any right of judicial review on the grounds of illegality, irrationality and unconstitutionality of any detention order”. This reverses the stand taken by the Court of Appeal in Chng Suan Tze’s case . The High Court in Vincent Cheng v. Minister of Home Affairs held as follows:-
“By the scheme of the ISA and of the Constitution from its very inception, the executive has been entrusted as the sole body to look at and weigh the evidence and case against a person and to form a view on the question whether a detention order should be issued. …the least that can be asserted against the applicant is that there has been some evidence against the applicant which related to national security and that once that assertion can be properly made it would be contrary to the scheme and the law of preventive detention for any court of law to adjudicate on the sufficiency or relevancy of the evidence nor should a court, by a side wind, as it were, investigate any allegation of bad faith or the abuse of the powers of ISA”.
As for judicial review of detention under section 74 of the SISA, it is submitted that as there is no reported case law in Singapore regarding the same, the law as it stands should be the same as in Malaysia following the Federal Court’s decision of Mohamad Ezam’s case .
(f) Respect accorded to the Court’s decision
Finally, it is submitted that if the proceedings must be carried out before a court of law, respect must therefore be duly ascribed to the court and its decision.
It is common knowledge that in cases where habeas corpus has been granted and the detainee released, the executive would merely just issue a fresh detention order and rearrest the detainee again , usually the moment he steps out of the court room or the detention centre.
This matter was raised before the learned Judge in Abdul Ghani Haroon v Ketua Polis Negara and another application (No. 4) . The court had earlier granted the application for habeas corpus. While waiting for the detainees to be brought to court to be released, the Judge and counsel for the detainee observed a “…tremendous police presence around the court premises that afternoon” . Counsel for the detainees made an oral application that the detainees would not be rearrested upon their release. 2 grounds were forwarded – the first is to give fruits to the decision of the court to release the detainees while the second is on humanitarian grounds as the detainees have been denied visitations from their family members since being detained and the family members were still travelling from outstation.
When the Federal Counsel did not assure the court that the detainees would not be rearrested immediately after they were released from the court, the learned Judge allowed the application and ordered that the detainees not be rearrested for 24 hours. The Judge was of the view that:-
“should rearrest immediately occur, that would have been a grave injustice. For such an action on the part of the police would make a mockery not only of my judgment which I had delivered in the morning but also of the whole habeas corpus proceeding and of the constitutional guarantees under art 5 of the Constitution” .
The learned Judge even went so far to state that in his view, if the detainees were rearrested immediately after released based on the same grounds of the earlier detention which had been ruled unlawful, that would amount to contempt of court .
SUARAM, a Malaysian NGO in their Malaysian Human Rights Report 2001 noted at pages 153 and 154 that the learned Judge came under criticism from the then Prime Minister of Malaysia. It is submitted that the learned Judge was right in making such an order. The right to take proceedings before a court should include the guarantee that the court’s decision is respected and not be made a mockery.
In the case of detention under section 73, the detainee is allowed to bring proceedings before the court and challenge the detention on both procedural and substantive grounds. The burden is placed on the executive to show reasons why they are of the view the detention is necessary and the test used is the objective test. It is submitted that this will not offend any of the ICCPR provisions.
The same however cannot be said to a detention under section 8 of the MISA and the SISA. The present situation only allows challenges made on procedural non-compliance. Even before the amendments were made, the courts have consistently held that subjective discretion of the minister is not justiciable. This is clearly not in line with the provisions of the ICCPR.
It is submitted that the courts can not be said to have jurisdiction to decide on the lawfulness of the detention if the jurisdiction is so severely restricted.
Regarding the 1988 amendments to the MISA, Chandra Muzaffar states:-
“It is obvious that the purpose of this amendment is to legalise illegalities and legitimise what is illegitimate.… After these amendments, how can we claim that we are a country that upholds the rule of law? What rule of law is there when a person who is detained without trial, which is already a grave act of injustice, is further punished by denying him any recourse to the courts?”
It is submitted that the 1988 amendments to both the MISA and the SISA are clearly unreasonable and unjust.
The stand taken by the local courts on the non-justiciability of the minister’s discretion is based on the case of Liversidge v. Anderson. It is submitted that Liversidge should no longer be followed.
The learned High Court Judge in Yit Hon Kit’s case questioned whether the courts should still consider the law laid down by the majority in Liversidge is still good law regard being had to subsequent English decisions. Referring to R v Inland Revenue Commissioners, ex parte Rossminster , the learned Judge noted that Lord Diplock remarked, pungently, at p. 1011:
The learned Judge also referred to Lord Scarman again in Reg v Secretary of State for the Home Department, ex parte Khawaja who held as follows:-
"The classic dissent of Lord Atkin in Liversidge v Anderson  AC 206 is now accepted as correct… in its declaration of English legal principle. Lord Atkin put it thus, at p. 245: 'that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act."
The learned Judge was hoping that the Supreme Court may consider these cases but unfortunately, the appeal to the Supreme Court was withdrawn.
It is submitted that the case of Liversidge v Anderson should not be recognised as good law anymore in Malaysia. The discretion of a Minister should be able to be challenged in a court of law. This is the foundation of basic legal principles like Separation of Powers and the Rule of Law. While it is conceded that certain matters which affect national security must be kept in confidence, it is submitted that the courts can surely be trusted on these matters. Even if the matter is extremely sensitive, it should be the court that rules on it.
Unchecked powers of discretion can only lead to abuse of the same. The State must know that they cannot take away the liberty of an individual without ensuring that it is not done in an arbitrary manner and in accordance with law.
3.5.1 Access to the outside world
The importance of this cannot be overstated. As discussed earlier above, incommunicado detention has been viewed as a violation of the right to be treated humanely as well as the right not to be subjected to torture. Besides the very act of cutting the detainee off from the outside world, it effectively prevents the detainee from complaining against any ill-treatment and emboldens the authorities to do whatever they like without having to worry about the consequences.
(a) Detention under section 73 MISA /74 SISA
Rule 94 of the Malaysian Internal Security (Detained Persons) Rules 1960 provides that the Lockup Rules, 1953 shall apply to such detained persons. SUHAKAM observed that these Lockup Rules do not provide for “unhampered regular visits by independent, qualified and responsible persons to supervise the strict observance of the relevant laws and regulations by the relevant authorities in charge of the administration of such undisclosed places of detention” .
While the Lockup Rules specifically allows for visits to be made by inter alia, family members and friends , counsel and medical officers , there have been reported cases where those detained under section 73 have been denied access to their lawyer and not allowed to have their family members visit them.
In the case of Abdul Ghani Haroon v Ketua Polis Negara and another application , the police alleged that visits by family members are not allowed because that would “…impede police investigations that were in progress”.
The Court held that such reasoning was unacceptable. The learned Judge asked rhetorically, “What harm could a brief visit by immediate family members do to the police investigations?” The learned Judge went on to hold that “[t]he law, especially a law that affects fundamental rights, should not be enforced blindly. It must be interpreted and carried out as humanely as possible. …There is no provision under the MISA that confers upon the police such drastic powers”.
As for the denial of access to their lawyers, the Court held that unreasonably denying such access would result in the detention being made mala fide as such denial “…is not only cruel, inhuman and oppressive, it is also a blatant violation of the applicants' constitutional rights under art 5(3) of the Constitution…”.
The Federal Court also had the opportunity to decide on the issue of access to legal counsel during detention under section 73 in Mohamad Ezam’s case .
According to the facts of that case, such access was only given after the expiry of the detention. The court held that it was unreasonable and a clear violation of Article 5(3) of the Federal Constitution which guarantees the right of a detained person to be consulted and defended by a legal practitioner of his choice. The court held further that such conduct also lends support of the allegation of mala fide on the part of the police.
In case there was still any lingering doubt, the court held in no uncertain terms that “…the MISA is still subject to the rights entrenched in art 5(3)” .
In the Singaporean decision of Lee Mau Seng , it was held that the constitutional right under Article 5(3) which provides that a person arrested “…shall be allowed to consult and be defended by a legal practitioner of his choice” applies even in arrests made under the ISA. The Court held that the contention made by the AG that section 74 of the ISA was “…intended to deprive a person of a 'fundamental liberty' which the Constitution guarantees to him, namely the right to be allowed to consult a legal practitioner of his choice” was an “unacceptable proposition” .
Having said that, the Court went on to hold that “The principle that the courts will not order the release of a person in habeas corpus proceedings unless it can be shown that his detention is illegal or unlawful has been long accepted as fundamental and it would be wrong for [the Court] to depart from this principle”
As such, while the applicant’s constitutional right had been infringed, it was held that habeas corpus was “…not an available remedy” .
(b) Detention under section 8
The rules relating to those detained under section 8 of the MISA are found in the Malaysian Internal Security (Detained Persons) Rules 1960 . The rules allow for visitation from his “relatives and legal advisor” as well as access to a Medical Officer .
However, it is submitted that the limitations imposed are not reasonable. For example, no one is allowed to receive more than one visit a week. This not only means that the intervals during the visits will be long, but also that if the detainee needs to consult his lawyer, he would not be able to see his relatives in the same week. The visits are also limited to 30 minutes.
Shockingly, there is no privacy at all during these visits. Rule 81(5) that an officer must “…be in sight and hearing during the whole of any visit”.
3.5.2 Place of detention
(a) Detention under section 73
Section 73(7) of the MISA provides that those detained under section 73 “…may be detained in any prison, or in any police station, or in any other similar place authorized generally or specially by the Minister”.
It is submitted that the aforesaid provision is too wide and vague. It is worrying to think that anyone detained under section 73 may be kept in a prison along with other convicted prisoners.
When the SUHAKAM had their Open Inquiry on the MISA , police witnesses informed them that generally, detainees under section 73 are held in the lockup of a police station for the first 48 hours of detention. Thereafter, they are blindfolded and taken to an undisclosed location which is gazetted as Police Remand Centres. The cloak and dagger approach is allegedly because of the national security concerns.
However, this would also mean that it increases the opportunity of abuse of the detainees as he is vulnerable, confused and cut off from the outside world . SUHAKAM highlighted 2 cases of former detainees to illustrate the fear of being abuse as a result of held in an undisclosed location. These former detainees also described the claustrophobic conditions of solitary confinement they were kept in.
Further, SUHAKAM found the living conditions of detainees not up to standard. For example, the detainees are “deprived of clean bedding and adequate sunlight to enable the differentiation between day and night” .
(b) Detention under section 8
Section 8(3) provides that detainees detained under section 8 will be held in a place the Minister may direct. SUHAKAM observes that in practice, the detainees will be held at the Kamunting Detention Centre.
The HRDC noted that that those detained at the Kamunting Detention Centre, were “held in isolation in small, poorly ventilated cells”.
Local Human Rights non-governmental organisation SUARAM reported inter alia on the conditions inside the Kamunting Detention Camp. They highlighted the poor diet and health facilities in the camp, the censorship on the detainees’ letters, the denial of religious activities, and the limitation on reading materials.
3.5.3 Torture, inhumane and degrading treatment
(a) Detention under section 73
The Lockup Rules 1953 provides that police officers must not act in such a manner as may tend to annoy a prisoner . They are also not allowed to strike or apply physical force to a prisoner unless in self-defence or in defence of another person .
The Lockup Rules also provide that punishment for disciplinary offence is confinement in a “punishment cell” on restricted food diet (upon certification by a medical officer) for a period of not more than 3 days .
With such general provisions, it should come as no surprise that there is much complaint on ill-treatment and torture on detainees.
Amnesty International delegates had recorded an “…almost uniform pattern in the ill-treatment of ISA detainees” during detention under section 73.
In the same report, it was highlighted that during the former Deputy Prime Minister’s trial late in 1998, the Police Special Branch officers testified in court where they “…described techniques of 'turning over' and 'neutralising targets' who were suspected of threatening security, including techniques of instilling fear through threatening indefinite detention under the ISA and through non-stop interrogation underscored with implied threats of violence. The officer testified these methods of interrogation were outlined in the Special Branch Handbook, and that such techniques were normal practice among Special Branch officers in 'handling the country's enemies, for example the communist threat at one time'” .
The Human Rights Watch reports that former detainees have described the torture they had to endure, both physical and psychological. These includes”…allegations of physical assault, forced nudity, sleep deprivation, around-the-clock interrogation, death threats, threats of bodily harm to family members, including threats of rape and bodily harm to their children”. The Human Rights Watch also reported about solitary confinement in “tiny, dark cells”. Prolonged torture and deprivation have led to some to sign state-manufactured "confessions" under severe duress. During the first trial of former Deputy Prime Minister Anwar Ibrahim, police admitted to the courts that the process of 'extracting confessions' under duress was standard practice.
One such person who had to endure through such torture was Sukma Darmawan. In a handwritten letter – which was authenticated by his family members, a copy of which was forwarded to Amnesty International - he described how he was severely physically and psychologically tortured during his detention under the MISA .
During his trial in 1999, Sukma testified in Court and described how he was tortured. This included threats and blackmails by the police, stripped naked, having his genitals groped and nipples pinched, subjected to taunts etc. He testified that he eventually confessed as he “…was frightened and sad... [and he] could no longer take the continuous yells and threats... ”
SUARAM had reproduced portions of sworn Affidavits from several detainees complaining about the abuses they suffered during the detention period. Besides the physical abuse, the affidavits detailed the emotional and psychological torture they had to endure during interrogation.
(b) Detention under section 8
The Internal Security (Detained Persons) Rules 1960 provides that prison officials are not allowed to use personal violence on any detainees. The exceptions are where there is a repeated refusal to obey a lawful order, or in self-defence or in defence of someone else . Unfortunately, it appears that that is all that is in place to protect the detainees from being denied their rights not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
However, SUHAKAM noted that they were not aware of cases of serious violations of the said rights at the Kamunting Detention Centre. This was only noted in their report made in 2003 .
The Human Rights Watch published a paper in September 2005 detailing abuses on detainees at the Kamunting Detention Centre, specifically referring to an incident which took place on the 8th and 9th of December 2004 . The official stance taken on that incident was that weapons were found in the detention cells of the detainees during a surprise check and that force was necessary to overcome violent and threatening detainees. The detainees’ side of the story is that the alleged weapons are in fact knives, scissors, badminton racquets and other objects which have been previously approved by the authorities.
Be that as it may, it is submitted that the treatment inflicted on the detainees is by no means reasonable even if the accusations against them were true.
In their paper, the abuses inflicted on the detainees were described by the detainees themselves, some of whom were eyewitnesses, others who were victims . The abuses include being handcuffed behind their backs and beaten severely, kicked repeatedly and stripped naked, being hit on the head, being “treated like animals”, being spat upon, being forced to do humiliating acts like made to crawl back into their cells. Some suffered broken bones and fractures.
They were subsequently denied medical attention. The detainees in a signed letter wrote that it was only on the third day after the incident that they were brought to the hospital. This included those who suffered fractures and bleeding to the head. Some were only taken to the hospital after more than a week.
When the detainees’ lawyers tried to visit them on the 10th December, they were not allowed to. The lawyers were finally allowed to see their clients on the 28th – close to 3 weeks after the incident.
Subsequently, 20 detainees were punished for the incident which took place on the 8-9 December, 2004. Some were kept in solitary confinement in a cell without light where they had to sleep on the cement floor. As of the date of the report, some of the detainees were still being thus punished. This is clearly a violation of the Internal Security Act (Detained Persons) Rules 1960 which only allow a maximum of 7 days of punishment after a factual inquiry . Further, no such inquiry was ever held.
Visitations have also subsequently been restricted after the incident in that physical contact has been disallowed and wives of the detainees have to speak to their husbands through a small hole situated 3 – 4 feet above ground level in the fibreglass and wire mesh partition which separates them.
As for the situation in Singapore, due to the low number of detainees as compared to Malaysia as well as the absence of a Human Rights Commission, the reports are not as extensive. However, the reports reveal the same but shocking tale of torture and inhumane treatment.
In May and June 1987 where over 20 people were detained under section 74 of the SISA, they were taken blindfolded to the Whitley Road Detention Centre . It is reported that most of the abuse of the detainees take place during the first 3 days at this place, causing disorientation and fear. Interrogation took place in a “…dark, overcooled, soundproof rooms with… bright spotlights” . The detainees were abused physically and psychologically by “…sleep deprivation, blows to the body and threats of being detained indefinitely” .
Testimonies of those who had been previously detained under the SISA reveal the same kind of treatment which includes but is not limited to solitary confinement with lights on 24 hours a day, threats of indefinite detention, harassing family members, depriving reading materials for months, long hours of interrogation in a cold room where some detainees have suffered involuntary spasms due to the freezing temperature, mental and physical abuses which includes breaking of bones, electrocution, drenched with urine .
The government denied all these abuses and alleged that no detainee had complained of ill-treatment. However, Asia Watch had information that at least 2 detainees – Tang Fong Har (detained on 20th June, 1987) and Teo Soh Lung (detained on 21st May 1987) – had presented evidence of their abuses before the Advisory Board
3.5.4 Summary and conclusion
In respect of access to the outside world, despite having the legal and constitutional provisions in place, detainees are still prevented from having access to the outside world during detention. As seen in the cases discussed above, the police in Malaysia can blatantly ignore these provisions while in Singapore, the infringement of the constitutional right does not make the detention unlawful.
This clearly falls short of the standards set out in the ICCPR as discussed above.
It is submitted that there are no reasonable grounds as to why detainees should be deprived from their right to consult their solicitor nor should they be deprived from seeing their family members.
On the other hand, there are so many reasons as to why they be allowed legal representation. For instance, not everyone knows their rights. Their lawyer would be able to advice them on that. Further, the access to legal representation will go a long in ensuring that the detainee’s rights to inhumane treatment and freedom from torture etc be respected. Early access to legal representation may also result in speedier proceedings in the court.
In respect of detention under section 8, it is also submitted that the non-respect of privacy is unreasonable. Even convicted prisoners are not treated like that! What more for a detainee who has not been found guilty of any crimes? Further, this goes against the rules of confidentiality between solicitor and client.
As for the places of detention, it is clear that the situation falls below the standards set in the ICCPR.
Finally, it is without doubt that the provisions in place are wholly inadequate to protect the detainees from violations to the right to be treated humanely as well as the right to be free from torture, inhuman or degrading treatment or punishment as provided for in the ICCPR. Even the existing provisions are no guarantees that the rights protected are not violated. In reality, the detainees have paid and are probably still paying for these inadequacies.
It is submitted that the situation is unacceptable and the status quo cannot remain.
There are no provisions in the MISA and SISA regarding compensation for wrongful detention .
There are no authorities where compensation was ordered to be paid when a detention was found to be unlawful. In fact, in all the Malaysian cases referred to in this essay, none of the application for judicial review and/or habeas corpus included a prayer for compensation for wrongful detention. It would appear that even the lawyers do not bother asking for it. Perhaps, with the poor “success rate” of judicial review , if a detainee’s application is allowed, they would gladly accept it without any compensation.
Presently, the High Court in Malaysia is hearing a suit filed by Mohamad Ezam and 7 others against a former Inspector-General of Police, the Home Ministry and the Government seeking for inter alia damages for the unlawful detention under section 73 if the MISA against them . The case was fixed for continued hearing on the 7th September 2006 and as such, the decision will unfortunately not be reached before this essay is due.
While monetary compensation can never be sufficient, it is submitted that there is no reason why there is no such right guaranteed. Some of those who have been detained lose their jobs while in detention. Family members suffer as some of those detained are the sole breadwinner of the family. Costs are incurred when these detainees engage solicitors. Costs are incurred also when family members have to travel some distance to visit the detainees.
Those lives of those who have been detained will never be the same again. At the very least, if it has been proven that their detention is unlawful, it is submitted that the state should pay compensation to them.