1.1 What is “Preventive Detention” in this essay?
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.