In this section, the relevant provisions in Malaysian and Singaporean law will be examined to set out the extent and the limits to preventive detention that is permitted in the States. Thereafter, these provisions will be analysed and compared with the provisions contained in the ICCPR as discussed in the preceding section.
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” .
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.
Wide powers
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” .
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