Preventive Detention in Malaysia PDF

1.
An Introduction to Preventive Detention The Malaysian Position
Before we begin to discuss on a model preventive detention legislation, it is

pertinent to observe the historical underpinnings as well as developments of subversion
laws in the Malaysian context.
In the Reid Commission draft Constitution for an independent Malaya, the provision
against subversion is provided under Article 137, notwithstanding that it is repugnant to any
of the provisions of Articles 5 (liberty of the person), 9 (freedom of movement), 10 (freedom
of speech), 68 (subject matter of Federal and State laws) or 73 (residual power of
legislation), with a detention duration of not to be exceeded by one year.
1.1 The Sunset Clause
A sunset clause proposed by the Reid Commission made its way to the Federal
Constitution. A law against subversion made under Article 149 automatically comes to an
end one year from the date on which it came into force. After the amendment, such law, if
not repealed, only ceases to have effect if resolutions are passed by both Houses of
Parliament to annul it. Such sunset clause is inserted possibly due to 2 probable reasons.
Firstly, it is a good legislative practice that laws which substantially affect fundamental
liberties should be reviewed from time to time to determine its relevancy. Secondly, it is a
manifestation of the drafter of the Constitution that such extraordinary legislative power is
only meant to be a short term empowerment based on the emergency situation that existed
at that time. Sadly, that sunset clause has been removed.
1.2 To meet such threat
The original Article 149 had the words or prevent that action before the words
any provision of that law designed to stop. The Reid Commissions draft only has the
words any provision of such Act designed to stop action or meet such threat. The phrase
prevent that action allows anti-subversion laws to provide for pre-emptive measures
before a real threat materialises. Thus, the words prevent that action is wider in its scope
than meet such threat because in order to meet a threat, such threat must be a
perceptible and imminent.
1.3 Legislation Spawned From Article 149
Article 149 gave birth to the infamous Internal Security Act 1960 and its siblings, the
Dangerous Drugs (Special Preventive Measures) Act 1985 and Dangerous Drugs (Forfeiture
of Property) Act 1988.
The Internal Security Act 1960 (ISA) became law on 1 August 1960 in Peninsular
Malaysia and on 16 September 1963 in East Malaysia. The preamble of the law recites that
its purpose is to provide for the internal security of Malaysia, preventive detention, the
prevention of subversion, the suppression of organised violence against persons and
property in specified areas of Malaysia, and for matters incidental thereto.1
In terms of detainment, it is interesting to note that it is stated in Parliament that a

person is detained because he represents a risk to the security of the country and not
because he is a member of a lawful political party. The Government had, at that time, no
desire whatsoever to hinder healthy democratic opposition in any way.2 Tun Abdul Razak
also addressed to the issue on whether the government or Yang di-Pertuan Agong should
have the power to decide the period of detention. He said that :
The Government is responsible for the security of the country and Government must,
subject to the safeguards to which I have referred, be the final authority to decide whether
persons should continue to be detained. Let me make it quite clear that it is no pleasure for
the Government to order the detention of any person. Nor will these powers be abused3
These are comforting words indeed that the governing bodies at that time clearly
took extensive measures in construing the Act to ensure that it would not be used
arbitrarily. It was also emphasized that the Act was specifically designed to counter
communist insurgencies, violence that is prejudicial to the security of the nation and not to
1
Hansard, Parliamentary Debates, House of Representatives, 21/06/1960
2
3
detain a person because that person is in healthy democratic opposition with the
government.
1.4 Robbing Away Our Fundamental Rights
Article 149 empowers the Parliament to make law against subversion regardless of
whether there is an Emergency proclaimed and such law is valid even if it violates the
constitutional guarantee of fundamental liberties under Article 5 (liberty of the person),
Article 9 (prohibition of banishment and freedom of movement), Article 10 (freedom of
speech, assembly and association) and Article 13 (rights to property).
Article 149 in its current form is too widely and ambiguously drafted that directly
legitimized the Parliaments discretion to enact laws that may explicitly and legally violate
human rights. It authorizes laws to be made to detain a person without trial which is against
the right to personal liberty, the right to a fair trial and the right to be presumed innocent
until proven guilty.
The 2 most controversial provisions of the ISA are section 8 and section 73 where
preventive detention is allowed. Section 8(1) authorises the Home Minister to make a
detention order to detain a person without trial if he is satisfied that the detention is
necessary to prevent such person from acting in any manner prejudicial to the security of
Malaysia or any part of it or to the maintenance of essential services or to the economic life
of Malaysia for a period not exceeding 2 years. The Minister is also empowered under
section 8(7) to extend the period of detention for 2 year period either on the same grounds
as with the previous detention or on different grounds or partly on the same grounds and
partly on different grounds.
As if the initial 2 years detention without trial under section 8(1) is not draconian
enough, it is further aggravated by the existence of the power to extend the detention
under section 8(2) to an indefinite period (each extension cannot be more than 2 years but
there is no limit to how many times such extension can be made). Such long and
indeterminate period of detention itself is the worst kind of torture a person can endure
because compared to a person who committed a crime and convicted by a court, an ISA
detainee which was never tried nor convicted by court, will never know when he will be
released.
Section 73 of the ISA authorises the police to arrest a person without warrant and
detain such person pending enquiries in 2 situations. First, when the police has reason to
believe that there are grounds which would justify the persons detention under section 8
and the person had acted or is about to act or is likely to act in any manner prejudicial to the
security of Malaysia or any part of it or to the maintenance of essential services or to the
economic life of Malaysia. Secondly, the police can arrest and detain a person if such person
upon being questioned, fails to satisfy the police as to his identity or as to the purposes for
which he is in the place where he was found, and who the police suspects has acted or is
about to act in any manner prejudicial to the security of Malaysia or any part of it or to the
maintenance of essential services or to the economic life of Malaysia.
In Kerajaan Malaysia & 2 Ors.v Nasharuddin bin Nasir4, Steve L.K. Shim CJ (Sabah &
Sarawak), ruled that the powers extended to the Minister of Home Affairs are valid under
the Malaysian Constitution. It is an undisputed fact that the provisions allow the Minister to
arbitrarily detain someone indefinitely at his pleasure. However, Art 5 of the Federal
Constitution provides guarantees that we have freedom of liberty, the right to be
represented by a lawyer and be informed of the reasons of his arrest. If ISA is allowed to
exist, then it certainly is in conflict with Art. 5.
In addition, these two provisions are also in ultra vires with the other Articles in the
Federal Constitution. Under Art 9, it is provided that every Malaysian has a freedom of
movement and has the right to move freely whereas Art 10 states that every person has a
right to freedom of speech and expression and also the right to assemble peaceably and
without arms. The ISA goes against the right of a person to defend himself in an open and
fair trial. The person can be incarcerated up to 60 days of interrogation without access to
legal counsel. Furthermore, not only does the ISA violate our God-given human rights but
the detainees in Kamunting Detention Centre are being physically abused. According to
Mohamad Faiq bin Hafidh, who has been detained since January 2002, said I was
handcuffed . . . and my head was pushed down to waist level. My head was struck with a
4
(2003) 6 AMR 497 at pg 506
baton and my eye was hit, injuring it. When I reached room seven of [the cell block], I was
continuously beaten and then forced to strip naked, ordered to crawl while entering the
room and then my buttocks were kicked and that was how I stumbled inside, naked.
If these detainees pose a threat to the country, then we should release them and
prosecute them in court. The government should produce evidence and let the courts
decide! We should not detain them indefinitely if we have compelling evidence to punish
them of their act. Or is the government saying that the governments intelligences are not
competent enough to put the pieces together? If thats the case, then on what grounds do
we isolate these detainees from their rights as human beings and to lead a normal life? The
ISA has had a wider, intimidating effect on civil society, and a marked influence on the
nature of political participation in Malaysia. The ISA has been used to suppress peaceful
political, academic and social activities, and legitimate constructive criticism by NGOs and
other social pressure groups.5 If we let it to prolong, it restricts the development of
democracy and the nation.
1.4 Limited to Communist Insurgencies?
The historical background of the situation of Malaya at the time of the drafting of
the Constitution must be taken into account when any analysis is to be done on Article 149.
The British proclaimed a state of emergency in 1948 to deal with the communist insurgency
and the state of emergency was still existing at the time when the Reid Commission was
given the task of drafting the Constitution. The Reid Commission therefore took into
account of the emergency situation existing at that time and proposed that apart from the
power to proclaim emergency, powers should also be given to deal with any further
attempt by any substantial body of person to organize violence against persons or property
so that Parliament could enact law which could infringe the fundamental liberties.6
The Malaysian courts in Theresa Lim Chin Chin & Ors v Inspector General of Police
and followed by Mohd Ezam bin Mohd Noor v Ketua Polis Negara & Ors have dealt with the
5
http://english.cpiasia.net/index.php?option=com_content&view=article&id=1652:faqs-on-isa, 23/10/10
6
Para 174 of the Report of the Federation of Malaya Constitutional Commission 1957
issue whether laws made under Article 149 are indeed restricted to the emergency
situations existing at the time Article 149 was drafted - namely the communist insurgency.
Unfortunately, both the then Supreme Court and the Federal Court have taken the stand
that Article 149 is not restricted to communist insurgencies only.
1.5 Blatant Abuse and Misinterpretation of the ISA
It is interesting to note that on a report submitted to the United Nations Human

Rights Council for the purpose of Universal Periodic review (UPR), the Malaysian
government argued that the existence of ISA is to maintain peace, stability and security of
persons in Malaysia.
The author of the ISA, Reginald Hugh Hickling, a British lawyer and professor
expressed that I could not imagine then that the time would come when the power of
detention, carefully and deliberately interlocked with Article 149 of the Constitution, would
be used against political opponents, welfare workers and others dedicated to nonviolent,
peaceful Activities. 7
A careful reading of the preamble of the ISA and the fact that it was made by virtue
of a special legislative power given under Article 149 will reveal that ISA can only be used in
extreme circumstances where the ordinary laws is ineffective and insufficient to deal with
such extreme circumstances.
However, this was not the case when the fourth Prime Minister, Tun Dr. Mahathir
executed the infamous Operasi Lalang8 in 1987 to crack down on opposition leaders and
social activists which saw the arrest of 106 persons under the ISA and the revoking of the
publishing licenses of two dailies, The Star and the Sin Chew JitPoh and two weeklies, The
Sunday Star and Watan.
The laws made under Article 149 especially the Internal Security Act 1960 has been
widely criticised by international human rights groups and SUHAKAM as an exercise of
arbitrary detention. For example, individuals have been detained under the ISA for allegedly
7
http://www.iht.com/articles/ap/2007/02/28/asia/AS-OBIT-Malaysia-Security-Law-Author.php, 15/10/2010
8
http://www.servinghistory.com/topics/Operasi_Lalang, 23/10/2010
counterfeiting coins, falsifying documents, combating Islamic militant groups, ban on quasi-
military organizations and subversive publications, restriction on the movement of
undesirable persons and proclamation of security areas9, to absurd reasons like detaining a
person for the safety of such person as in the case of Tan Hoon Cheng, a Sin Chew Daily
journalist who was detained for less than 24 hours in 2008 after the police was satisfied that
her life was in danger after she reported a politicians racist remark.
On 14 September 2008, Zaid Ibrahim, the former de facto law minister in the Prime
Ministers Department, heavily criticized the governments action saying that there are
many laws which the police could have used to detain the three people without having to
use the ISA. This statement was a response to the arrests of blogger Raja Petra Kamaruddin,
opposition member of Parliament Teresa Kok, and journalist Tan Hoon Cheng. He also
expressed that the government had misused the ISA from its original stated purpose. The
following three days saw the resignation of Zaid Ibrahim from his ministerial post in the
cabinet. In an open letter to the Prime Minister after his resignation, he commented on the
possibility of the misuse of the ISA because the government and the law mistakenly allowed
the Minister of Home Affairs to detain anyone for arbitrary reasons. He also commented
that the continued abuse of the ISA will strongly suggest that the government is
undemocratic and the Act will be thought of by the public as an instrument of oppression
and the government is the one that lends itself to oppressiveness
To consider how ISA has fared in the Malaysian courts, we shall be taking a closer
look into one of the landmark cases in Malaysia. This is important in shedding some light on
how the judiciary views the enactment of this law. In Abd Malek bin Hussin v Borhan bin Hj
Daud & Ors10, the issue was whether the detention and the extension of detention of the
plaintiff was lawful. Apart from that, the plaintiff also brought the case of assault and
battery against the plaintiff.
The defendant is the leader for the special branch officers that detained the plaintiff.
After being dropped off in front of his house, the plaintiff was arrested by the defendant.
9
http://english.cpiasia.net/index.php?option=com_content&view=article&id=1652:faqs-on-isa, 23/10/10
10
[2008] 1 MLJ 368
Furthermore, the officer slapped the plaintiff three times because he was unable to direct
the officers to the location of his car. Then the plaintiffs house was searched without a
search warrant and the police seized several documents. It is also interesting to note that
the plaintiff has only been vaguely told that his arrest was under the Internal Security Act
after he asked. When in custody, he was physically assaulted and his mouth was poured
with some foul urine-like liquid. The plaintiff averred that the interrogation was only
focused on his relationship with Datuk Seri Anwar Ibrahim, the 'reformasi' movement and
opposition politics. Overall, the plaintiff spent 57 days in police custody and under solitary
confinement. During this 57-day period he only saw his family twice and was denied access
to legal representation.
The court emphasized that the police, particularly the Special Branch, should not be
a tool of the executive for executing unfair laws. The court also touched on the manner of
which the plaintiff was detained. The Federal Constitution, under Article 5(3) which states
that:
Where a person is arrested he shall be informed as soon as may be of the grounds of his
arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
The sudden uninformed detention, unwarranted arrest and the lack of access to
legal representation grossly violated the Constitution and contradict with the rule of law.
Any conflicting law would be void, to the extent of the inconsistency.11 The circumstances of
the case were such that it was appropriate for an award of exemplary damages. The court
also expressed that the defendant did not prove that the detention was in any way lawful as
the evidence presented by the defendant did not justify any reasonable basis to show his
reason to believe that the detention of the plaintiff was necessary to prevent him from
acting in a manner prejudicial to the security of Malaysia and also to show the basis of his
reason to believe that the plaintiff had acted (or was likely to act or was about to act) in a
manner prejudicial to the security of the country.
It is insufficient to merely parrot the provisions of section 8 or section 73(1)(b) of the

ISA which touches on without some indication to the detainee of the substance of what he
11
Article 4(1),Federal Constitution
has done or of what he is about to do or of what he is likely to do. According to the court, no
detailed particulars need to be told to the detainee, but at least he should know the essence
of why he is being arrested. Hence the detention is unlawful. Furthermore, the court held
that the nature of the interrogation was clearly political in nature and that it was being
done for collateral purposes and had nothing to do with genuine concern for national
security. The plaintiff was awarded RM1m in exemplary damages
Another landmark case on the misuse of power of the ISA is regarding religious
prosecution. In Minister of Home Affairs, Malaysia &Anor v Jamaluddin bin Othman12, the
respondent was detained under section 8 (1) of ISA with a view to preventing him from
acting in a manner prejudicial to the security of Malaysia. The grounds for detention stated
that the respondent was involved in a plan or programme to propagate Christianity among
the Malays and it was also alleged that the activities of the respondent could give rise to
tension and enmity between the Muslim community and the Christian community in
Malaysia and could affect national security. However, the court dismissed the appeal and
held that the grounds for the detention in the present case read in the proper context are
insufficient to fall within the scope of the Internal Security Act 1960, which is a piece of
legislation essentially to prevent and combat subversion and actions prejudicial to public
order and national security, that the power conferred by Article 149 which would not
nullified the fundamental right of Article 11.
Even in time of emergency when Parliaments powers are greatly enhanced, Article
150(16A) provides that freedom of religion cannot be restricted by an emergency law under
Article 150.
1.6 The Role of the Advisory Board
Article 151 of the Federal Constitution states as follows:
Article 151. Restrictions on preventive detention.
(1) Where any law or ordinance made or promulgated in pursuance of this Part provides
for preventive detention
12
[1989] 1 MLJ 368
(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;
(b) no citizen shall continue to be detained under that law or ordinance unless an
advisory board constituted as mentioned in Clause (2) has considered any representations
made by him under paragraph (a) and made recommendations thereon to the Yang di-
Pertuan Agong within three months of receiving such representations, or within such longer
period as the Yang di-Pertuan Agong may allow.
(2) An advisory board constituted for the purposes of this Article shall consist of a
chairman, who shall be appointed by the Yang di-Pertuan Agong and who shall be or have
been, or be qualified to be, a judge of the Federal Court, the Court of Appeal or a High Court,
or shall before Malaysia Day have been a judge of the Supreme Court, and two other
members who shall be appointed by the Yang di-Pertuan Agong.
(3) This Article does not require any authority to disclose facts whose disclosure would in
its opinion be against the national interest.
From the above, it is clear that the Federal Constitution being the supreme law
creates an Advisory Board. Hence, the Advisory Board is a constitutional creature with a
constitutional import. Thus for all intents and purposes it has to play its part to promote
constitutionalism.
Under Article 151(1)(b), the Advisory Board is empowered to consider any

representations made to him by a person detained under Article 151(1)(a). The Advisory
Board would have to then make recommendations to the Yang di-Pertuan Agong within
three months of receiving such representations, or within such longer period as the Yang di-
Pertuan Agong may allow.
Section 11 of ISA entitles the person against whom the Order is made to make
representations against the said Order to an Advisory Board. Upon receiving such
representation from the person, the Advisory Board would have to consider such
representations under Section 12 and make recommendations to the Yang di-PertuanAgong
(YDPA) in which the YDPA may then give the Minister such directions and that such decision
made by the YDPA shall be final and not be called to question in any court. Under Section
13(1), the Advisory board also has the power to review every order and direction of the
Minister as follows:
(1) Every order or direction made or given by the Minister under subsection 8(1), (5) or (7)
or under section 10 shall, so long as it remains in force, be reviewed not less often than once
in every six months by an Advisory Board:
Provided that in the case of a detention order against which representations have been
made the first of such reviews, whether of a detention order made under subsection 8(1) or
of a detention order extended under subsection 8(7) to which the proviso to the last
mentioned subsection applies, shall be held not later than six months after the completion of
the hearing of the representations by the Advisory Board to which they were made.
Under Section 13(2), the Advisory Board then would have to submit to the Minister a
written report of every such review, and may make therein such recommendations as it
shall think fit. Every Advisory Board subject to section 16, also have all the powers of a court
for the summoning and examination of witnesses, the administration of oaths or
affirmations, and for compelling the production of documents (Section 14). An Advisory
Board is not required to disclose facts or to produce documents which he considers it to be
against the national interest to disclose or produce (Section 16).
The Advisory Board has the power to review every order and direction of the
Minister (under subsection 8(1), (5) or (7) or under section 10) not less often than once in
every six months; provided that in the case of a detention order against which
representations have been made the first of such reviews, whether of a detention order
made under subsection 8(1) or of a detention order extended under subsection 8(7) to
which the proviso to the last mentioned subsection applies, shall be held not later than six
months after the completion of the hearing of the representations by the Advisory Board to
which they were made.
However, amongst others, it is observed that where a detainee detained under

section 8 of the ISA has made representations to the Advisory Board, it is possible for the
Advisory Board not to consider the representations and make the necessary
recommendations to the YDPA as a matter of urgency. Instead, as clearly stated in Section
12(1) of the ISA, the Advisory Board may consider the representations of the detainee and
make the necessary recommendations to the YDPA "within three months from the date on
which representations are received by it or within such longer period as the Yang di-
PertuanAgong may allow". Secondly, the recommendations of the Advisory Board are not
binding. Thus, there is a danger that any review of detention orders by the Advisory Board
may be ineffective.
Nevertheless, there can be recommendations as to the legislative reform of the ISA

(or Federal Constitution, if necessary) such as, the reduction of the initial period of
detention from two years to three months. There has to be a further reduction of detention
for a maximum period of three months after which he or she must be charged in court or be
released. Judicial review has to be made available of the detention orders made or to confer
such powers on the Advisory Board, whose recommendation to the YDPA shall be binding. A
detainee whose detention order is extended be accorded the same rights as when he or she
was initially detained. This includes requiring the Minister to furnish a detainee with a
statement made pursuant to section 11(2) (b). The Advisory Board shall review detention
orders made under section 8 within three months of a person's detention and not have the
choice of a longer period. There has to be in place administrative directives and procedures,
namely to ensure that the power to detain without trial be exercised with utmost care and
in good faith so as to avoid the possibility of arbitrary detention of a person.
1.7 Judicial Review?
The Reid Commission in justifying the authorisation of infringement of fundamental

rights to fight subversion stated that:
it must be for Parliament to determine whether the situation is such that special provisions
are required, but Parliament should not be entitled to authorize infringements of such a
character that they cannot properly be regarded as designed to deal with the particular
situation. It would be open to any person aggrieved by the encroachment of a particular
infringement to maintain that it could not be properly be so regarded and to submit the
question for decision by the court.
By reading the statement from the Reid Commission above, it seems that it has
never been the intention of the drafter of the Federal Constitution that exclusion of judicial
review of any action taken by the Executive under any legislation made under Article 137
(now Article 149) should be authorised. However, ouster clauses have been inserted in the
ISA which prevents any sort of judicial review, placing great powers and immunity on the
Executive.
With the permission to violate 4 fundamental liberties, the non-existence of a sunset

clause to limit the period of operation of anti-subversion laws and now with the courts
interpretation that Article 149 is not only limited to communist insurgencies, the only
safeguard against the misuse of anti-subversion laws that the people have lies in the good
sense of the Executive. However, history has proven that the Executives priority is not to
safeguard the peoples rights and freedom but the opposite of it. With the ruling party
continuous stronghold of the Parliament and the Executive since Merdeka, Article 149 and
its laws, especially the ISA has been amended on a few occasions to further restrict the
rights and freedom of the people.
1.8 Emergency Powers - Article 150
We must also analyse another provision of the Constitution that empowers the state
to erode fundamental rights in the name of public order emergency powers. Before
independence, the Malayan government led by the British had full power to make any kind
of law to deal with subversions and with any emergency matters, provided it had the
necessary majority in the legislature, because there was nothing in the constitution to
restrict its power. The legislature could pass any law it thought fit, and so it had passed the
Emergency Regulation Ordinance (ERO), 1948. The executive was thus empowered to make
drastic emergency regulations. However, in 1960, the Ordinance was replaced by Article 149
and 150 in the Federal Constitution of Malaysia. The two Articles were created as a
continuity of ERO. It is argued that the two articles provide Malaysian government and the
authorities under it with exceptional power which decide the shape of politics in this
country. The ultimate political power enjoyed by them was nonetheless given by the
Constitution of the state13.
Article 150 permits the YDPA to issue a Proclamation of Emergency and to govern by
issuing ordinances that are not subject to judicial review if the YDPA is satisfied that a grave
emergency exists whereby the security, or the economic life, or public order in the
Federation or any part thereof is threatened.
This Article gives extraordinary powers to the Executive to act when a State of
Emergency is declared. Any Act enacted under Article 150 need not comply with all
fundamental liberties except related to religion (Article 150(6)(a)) and continues in force
indefinitely until parliament otherwise determines, whether or not the circumstances giving
rise to the emergency have terminated.
In relation to the duration of Emergency Law, Art 150(3) previously provides that a
Proclamation would cease two months after it issued unless approved by a resolution of
each House. This time limit was removed by the Constitution (Amendment) Act 1960
(No.10/60). Today the position is that a Proclamation has no fixed duration.
In the Constitution (Amendment) Act 1981, a new Clause (8) was inserted to Article
150, which provides that the Courts have no jurisdiction to entertain any application to
challenge any State of Emergency proclaimed by His majesty and any laws made there
under thus all questions concerning emergency powers would be left to the absolute
discretion of the Executive. This 1981 amendment effectively places the action to invoke the
emergency powers beyond judicial review. This should not be the case because if there is
no judicial review, the law may be abused to achieve other purpose. Hence, a clause should
be inserted to provide for judicial review.
The combine effects of 1960 and 1981 amendments substantially and extensively
infringed upon fundamental concepts underlying the 1957 Merdeka Constitution. These
amendments all worked to the detriment of the individual and to the benefit of the
Executive.
13
http://www.in-spire.org/archive/Vol%205-%20no2/yaakop.pdf
Unrestrained invocation of emergency powers poses a threat to the rule of law and
democracy in Malaysia. Lim Kit Siang, the then Parliament Opposition Leader, proposed a
review of the exercise of the emergency powers under Article 150 and the formulation
against abuses of emergency powers. His proposals are as following and we agree with
them:
The effects of states of emergency on the rights of citizens and the powers of the
various branches of government should be clearly spelt out.
The constitution should enumerate and define the situations, which justify departure
from the normal order. There should be separate provisions to distinguish between
war with foreign enemies and internal disturbances.
The duration of states of emergency should be specified. Review of the need for
emergency occurs at regular intervals.
The procedure for declaring a state of emergency must be constitutionally defined,

giving primary responsibility to legislature14
14
Lim Kit Siang, Crisis of Identity, 1986 page 131
2.0 Malaysian Case Law over the last four decades: From Subjective Test to Objective Test
Malaysian courts have always shown a great reluctance to decide against the exercise of the
executive's power to detain a person without trial especially under the Internal Security Act,
1960. Worse off, they have also ruled that the 'subjective satisfaction of the Minister of
Home Affairs is not subject to judicial review'15.
2.1 Reviewing the Legality of the Detention: A matter of Administrative or Constitutional

Review?
The executive body together with the legislature has been active in closing the doors of
judicial review in the ISA cases, but the courts themselves have also played roles in
hammering the last few nails to the coffin. This is evidenced from the courts approach in
reviewing the ISA cases as merely an administrative review on the executives decision
making process rather than reviewing its constitutionality.
Prof. Dr. Shad Saleem Faruqi is in the opinion that the Malaysian courts are holding that the
Federal Constitution is Sui Generis (a class by itself) and generally the courts have a
lacklustere performance in the matter of enforcing constitutional supremacy, promoting
human rights, curbing arbitrary powers and improving transparency and accountability in
government. As in many other countries, our courts speak boldly but act timidly16.
2.2 From Karam Singh to Darma Suria: Resorting to Administrative Review Amidst Clear
Violation of Fundamental Rights
In the controversial case of Karam Singh v. Menteri Hal Ehwal Dalam Negeri17, the
Federal Court in establishing the subjective test in the habeas corpus application, Judge
15
Preventive Detention: Part 1 Constitutional Rights and the Executive by Hardial Singh Khaira [2007] 1 MLJ
lxiii
16
Constitutional Interpretation in a Globalised World by Prof. Dr. Shad Saleem Faruqi - paper presented at the
13th Malaysian Law Conference.
17
[1969] 3 MLJ 129.
Suffian stated the following: Whether or not the facts on which the order of detention is to
be based are sufficient or relevant, is a matter to be decided solely by the executive. In
making their decision, they have complete discretion and it is not for a court of law to
question the sufficiency or relevance of these allegations of fact. Although Suffian FJ (as he
then was) tried to explain the legality of the Internal Security Act 1960 vis--vis Article 5 of
the Federal Constitution, his lordships explanation, with all due respect, is unacceptable.
His lordship ought to view the word law in Article 5 in a wider aspect, so to include
procedural law as well. If his lordship had done so, the non-compliance of procedure by the
Minister would render the detention order invalid.
Subsequent cases such as the Supreme Court decision in Theresa Lim Chin Chin v.
Inspector General of Police18 reaffirmed this principle. In that case, Lim, the leader of the
opposition party DAP, was arrested during Operasi Lalang (police crackdown on critics of
the government). Detention for police investigation under s73 is a step towards the
ministerial power of issuing an order of detention under s8, thus they are inextricably
connected. Furthermore, the court will not be in a position to review the fairness of the
decision-making process because the Constitution and the law protect the police from
disclosing any information and materials in their possession upon which they based their
decision. Therefore, the court, in rejecting the habeas corpus application, held that the
subjective test applied to both police and ministerial ordered detentions.
However, the Supreme Court in the case of Karpal Singh v. Menteri Hal Ehwal Dalam
Negeri19, held that the ministers order for detention was mala fide as it was made without
due care and caution and opted for objective test. The Supreme Court held that there are
exceptions to the non-justiciability of the Ministers mental satisfaction, including mala fides
as in that case one of the six charges was factually incorrect and made in error. Hence,
habeas corpus was granted20.
18
[1988] 1 MLJ 293
19
[1988] 1 MLJ 468.
20
Terrorisms Next Victim? Judicial Review of the Malaysian Internal Security Act, 1960 by Felicity Hammond,
Asia-Pacific Law & Policy Journal Vol 8 Issue (spring 2007) at page 270.
Following the successful habeas corpus application of Karpal Singh, the government
led by the former Prime Minister, Mahathir Mohamed, amended the ISA in 1988 to ouster
the jurisdiction of the court for reviewing the merits of the ISA detentions, thus leaving
detainees without any effective recourse to challenge their continued detention. The law
leaves room for review on grounds of procedural requirements only21. Even Singapores
ISA doesnt have an ouster clause, prompting breakthrough judicial decisions in cases such
as Chng Suan Tze v Minister of Home Affairs and others and other appeals22 which departed
significantly from previous precedents such as Karam Singh and Lee Mau Seng v Minister for
Home Affairs23, holding that the exercise of the discretionary power is subject to the
objective test and thus to discharge this burden, the executive has to satisfy the court that
there are objective facts in existence which justify the executive's decision.
Nevertheless, back in home soil, In the celebrated High Court decision of Abdul
Ghani Haroon v. Ketua Polis Negara24 Judge Hishamudin (as he then was) ruled that
procedural irregularities, including failures to permit access to lawyers and family, and
failures to state the grounds for arrest and extension of the detention, made the police
detention invalid. Justice Hishamudin also noted that a denial of these rights makes a
mockery of the right to apply for habeas corpus as guaranteed by art 5(2) of the
Constitution. The Judge further stated that, it is perhaps time for Parliament to consider
whether the ISA . . . is really relevant to the present day situation.
Another positive development was the Federal Court case of Mohamad Ezam Bin
Mohd Noor v. Ketua Polis Negara25 which that the purpose of detaining the detainees was
21
The new section 8B of the ISA states that there will be no judicial review in any court . . . of any act done or
decision made by the . . . Minister in the exercise of their discretionary power in accordance with this Act, save
in regard to any question on compliance with any procedural requirement.
22
[1988] SGCA 16
23
[1971] SGHC 10
24
[2001] 2 MLJ 689
25
[2002] 4 MLJ 470
not for national security purposes as the police did not question them about their alleged
military behavior, but questioned them for the ulterior purpose of intelligence gathering
unconnected with national security. In its decision, the Federal Court applied an objective
test to the polices decision because of the enormous power conferred upon police officers
. . . and the potentially devastating effect . . . arising from any misuse thereof.
Sadly, the Federal Court stated that sections 73(1) and 8 of the ISA although
connected, can nevertheless operate quite independently. Hence, the incorrect police
decision will not automatically invalidate the later ministerial detention that was still based
on the subjective test26.
The self imposed or restricted approach also shared in other numerous occasions by
our Malaysian court judges. For instance in the case of Noor Ashid bin Sakib v Ketua Polis
Negara27 Jeffery Tan JC (as he was then) held that the 'subjective satisfaction of the Minister
is not subject to judicial review and the fairness of the minister's decision is subjective and
that the court is only concerned with the procedural aspect of the exercise of executive
discretion'.
Further in the case of Abdul Razak bin Baharudin & Ors v Ketua Polis Negara & Ors28
the court went even further to declare that the exercise of the power of preventive
detention in bad faith by the minister is non reviewable as the amendments reversed the
law and the court ruled that an order of the minister under s8 could now only be challenged
on the ground of procedural non-compliance. The above view also shared by the court in
the case of Kerajaan Malaysia & 2 Ors v Nasharuddin bin Nasir29.
26
Terrorisms Next Victim? Judicial Review of the Malaysian Internal Security Act, 1960 by Felicity Hammond,
Asia-Pacific Law & Policy Journal Vol 8 Issue (spring 2007) at page 270.
27
[2001] MLJ 393
28
2005 MLJU 239
29
The court declared that the amendments are 'intended to exclude judicial review by the court of any act
done or any decision made by the minister in the exercise of his discretionary power in accordance with the
Based on the above observation, it can be summarily said that (barring certain
cases), the Malaysian Courts in the ISA cases generally of the view that the subjective test is
to be applied to the Ministers decision whether a person ought to be detained or not and
the police had to pass the objective test30. By adopting this archaic approach, the Malaysian
courts has utterly failed to live up to their expectation to promote the judicial activism by
upholding rule of law and the supremacy of the constitution by becoming mere puppets of
the executives.
Interestingly, in the Federal Court case of Darma Suria 31 , the court had an
opportunity to curtail excessive executive power under the Emergency (Public Order and
Prevention of Crime) Ordinance 1969. According Justice Gopal Sri Ram in his decision, it is
insufficient if the Minister thought that he had reasonable grounds to be satisfied that the
detainee had acted in a manner prejudicial to public order. The question that a court must
ask itself was whether a reasonable Minister apprised of the material set out in the
statement of facts objectively be satisfied that the actions of the detainee were prejudicial
to public order. It is the court that was the final arbiter upon the question.
ISA except as regards any question on compliance with any procedural requirement relating to the act or
decision in question'.
30
ISA Detention in Malaysia: Whither Judicial Review by Pawan Che Merican at
http://www.onmalaysianlaw.com/2009/10/isa-detentions-in-malaysia-whither_7913.html
31
Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia & Ors
[2010] 3 MLJ 307 - The appellant was arrested pursuant to the provision of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969 (the Ordinance). By an order issued under s 4(1) of the Ordinance
applied by the Home Affairs Minister (the Minister), the appellant was detained for a period of two years. The
Minister had directed the detention of the appellant to prevent him from acting in a manner prejudicial to
public order. The appellant was, in accordance to s 4(4) of the Ordinance, served a statement of facts stating,
inter alia, that the appellant was involved in the smuggling of stolen cars out of Malaysia. The appellants
representation to the Advisory Board under art 151(2) of the Federal Constitution was dismissed with
recommendation to the Yang di-Pertuan Agong. The appellant subsequently applied for an order of habeas
corpus but was declined by the High Court on the ground that the appellants activity came within the scope of
public order.
Although the Federal Courts decision has given some hope that the cases involving
infringement of fundamental rights will be dealt objectively but the courts are still reluctant
to focus on the constitutionality of the executives decision.
2.3 A New Wave: Proportionality in Public Law?
Recent developments in the Malaysian public law jurisprudence is that the Malaysian
highest court has taken positive steps by incorporating principles of proportionality by
promoting liberal interpretation of the Part II of the Constitution32 and also by stressing the
need to interpret restrictively the provisos or restrictions that limit or derogate guaranteed
fundamental rights33.
It was held in the Federal Court decision of Badan Peguam Malaysia v Kerajaan
Malaysia34, that the court must take into consideration Article 8(1) of the Constitution in
interpreting other constitutional provisions.
Further by giving such interpretation, the highest court of the land has now
approved doctrine of procedural and substantive fairness housed in art 8(1) into the
constitutional issues. Apart from that, the effect of Article 8(1) is also to ensure that
legislative, administrative and judicial action is objectively fair. It also houses within it the
doctrine of proportionality which is the test to be used when determining whether any form
32
Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285- Hashim Yusoff FCJ approved Court of
Appeal in Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213 as follows: The long and
short of it is that our Constitution especially those articles in it that confer on our citizens the most
cherished of human rights must on no account be given a literal meaning. It should not be read as a last will
and testament. If we do that then that is what it will become.
33
Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 the fundamental liberties guaranteed
under Part II must be generously interpreted and that a prismatic approach to interpretation must be
adopted. The Federal Court further stressed that provisos or restrictions that limit or derogate from a
guaranteed right must be read restrictively.
34
[2008] 2 MLJ 285
of State action (executive, legislative or judicial) is arbitrary or excessive when it is asserted
that a fundamental right is alleged to have been infringed35.
Actually the use of a proportionality principle in examining whether a restriction of a

fundamental right is necessary in a democratic society is consistent with the approach to
constitutional review in many other jurisdictions36.
It is Dr. Gan Ching Chuans view that the Malaysian courts must adopt a pragmatic
approach in the cases involving infringement of the fundamental rights under the Part II of
the Federal Constitution by expanding the abovementioned three (3) stage proportionality
test by incorporating an additional requirement i. e to balance the interests of society with
those of individuals and groups37 as stated in the case of Huang v Secretary of State for the
Home Department, Kashmiri 38 . In doing so, in the cases involving infringement of
fundamental rights, the courts will have an opportunity to review the executives conduct or
decision by way of most anxious scrutiny.
Although the decision in the Sivasara has given us hope, that the restriction on the
fundamental rights has to be reasonable, but this approach is not good enough to curtail or
to review the executives power especially in the preventive detention cases.
2.4 Conclusion
With the illustration of the few cases above, it can be shown how Malaysian judges
have not realized their conviction that the ISA is subject to the rule of law. In our opinion,
part of the problem is constitutional positivism, which stifles even judges who want to
protect the rule of law. The effect is that it distracts the judges from recognising the
35
Lee Kwan Woh v Public Prosecutor (2009) 5 CLJ 631
36
Leung Kwok Hung v The Hong Kong Special Administrative Region [2005] 887 HKCU 1
37
R v Oakes [1986] 1 SCR 103
38
[2007] UKHL 11
significance of procedural controls in the ISA, and this further stops them from showing how
the ISA is not a legal black hole39.
It is also shown that there is an endless debate as to whether an objective or

subjective test ought to be used by the court in order to decide the validity of ministers
order of detention. It is said that the subjective test are more often used by the court, thus
giving enormous power to the Minister which remains unchecked. (section 8 does allow
judicial review on the ground of non-compliance of procedure laid down in the act).
However, this dilemma is seem to be resolved by applying the four (4) stage
proportionality test under the heading of constitutional review for the cases involving
infringement of the fundamental rights under the Federal Constitution, for instance in the
habeas corpus application under the ISA, the courts will able to read Article 5(1)
prismatically (broadly) in light of Article 8(1) with regards to the meaning of life and
personal liberty to include right to livelihood and right to have quality life40.
Further by applying proportionality principles, the burden will be shifted to the

executive to give adequate and sufficient reasons and in order for the courts to determine
whether restriction of the fundamental liberties enshrined in the Part II of the Federal
Constitution is proportionate as to the executives objective in doing so.
With the above measure, constitutional supremacy will be safeguarded. Further, this
measurement will not lead into executive arbitrariness and it will provide desired checks
and balances on the executives action, especially with regards to the ISA detainees.
It must always be borne in mind that preventive detention should not subjected to
the common law principles laid down in CCSU. This is because this involves fundamental
rights and higher benchmarks such as constitutional safeguards need to be utilized.
39
Rueban Ratna Balasubramaniam, The Karam Singh Case.
40
Barat Estate Sdn Bhd v. Parawakan a/l Subramaniam [2000] 4 MLJ 107 at 117.
3.0 The Transformation Era The New Security Offences (Special Measures) Act 2012
On 15 September 2011, in a move that sparked hope for the human rights
movement, Malaysian Prime Minister Dato Seri Najib Tun Razak announced that the
government will repeal the ISA and 3 emergency declarations, including the Emergency
(Public Order and Prevention of Crime) Ordinance, and amend acts relevant to freedom of
expression and assembly, including the Section 27 of the Police Act 1967 and the Printing
Presses and Publication Act 1984. On April 2012, the Security Offences (Special Measures)
Bill 2012 was passed in Parliament to replace the ISA, which had significant impact on
preventive detention in Malaysia for almost 52 years.
There are many good features to the new law which far outweighs the draconian
ISA. However, it is argued that there are still some glaring lacunas in this particular Act.
Firstly, the definition of particular words still lacks an independent feature and
consideration towards the nature of 21st century terrorism. Section 3 still defines the term
security offence by making reference to the Penal Code in Chapter VI and Chapter VI and
further defines that it includes committing acts prejudicial to national security and public
safety. This is no better than the ISA definition which is too wide in nature and not confined
to specific acts of terrorism only. Such a broad definition allows our government to deem,
for example, the Bersih2.0 rally, possession of Che Guevera T-shirts and SeksualitiMerdeka,
a sexuality rights festival; as national security threats. 41 As we know, fundamental liberties
guaranteed Art 5, 9 , 10 and 13 need not to be considered in a detention under this Act,
thus the Security Offences Act 2012 (SOA 2012) should clearly define the wordings and
activities that will be considered as a security threat, so that the authority and the detainee
will be able to justify and defend their actions. The Malaysian Bar has recommended using
the definition adopted by United Nations (UN) Convention for the Suppression of the
Financing of Terrorism. The UN definition confines terrorist acts to those specifically
intended to cause death or serious bodily injury for the purpose of influencing government
actions.42
41
http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=35171
42
Ibid
The second issue is on the wording in section 4(3) which reads "solely for his political
belief or political activity". It was argued that by reading solely to this particular subsection,
one may say that the SOA expressly spelt out that there will not be anyone detained for his
political belief. This is a huge leap forward as it now prevents Ministers from the incumbent
government from blatantly misusing the law to persecute opposition voices, as seen too
often during the ISA days. However, there is also concern with regards to the definition
provision as it limits the political belief as to "directed towards any Government in the
Federation" under sub-section 12 of the same section. One may wonder when it comes to
ordinary persons and maybe even civil society groups, where their actions may not be
'directed towards any Government in the Federation, but towards Malaysians and other
persons, the media, some companies in Malaysia, some political party of personality (or
even bodies like the ILO, UN, other governments, etc,), will they fall under this protection?
Political activity of individual persons and civil society groups are a fundamental right that
needs to be protected not only for those who have been mentioned under S4 (12) of SOA.
We should bear in mind that political belief and activity is not something confined to
registered political parties and politicians like the Democratic Action Party (DAP), Parti
Agama Se-Malaya (PAS) and Parti Keadilan Rakyat (PKR) ,but it is a right that is universal and
can be exercised by anyone.
Thirdly, the SOA 2012 gives power to the police to detain a person up to 28 days43,
which is much better than ISA quantitatively as the latter gives the power to detain a person
up to 60 days and 2 years on the order of the Minister. However, the new SOA 2012 again
provided ambiguities and uncertainties in section 4(11) which states that the terms of 28
days can be reviewed for every 5 years. This opens the possibility that the government may
add to the number of days for detention. Besides, this power of detention was solely given
to the police, without judicial oversight and no requirement to produce the detainee in front
of magistrate.
Lastly, another thing that should be credited is the notification to the next-of-kin and
consultation with a legal practitioner as guaranteed under section 5. The police under S5(1)
shall immediately notify the next-of-kin of such person of his arrest and detention and the
43
S4(5) Security Offences Act 2012
detainee can consult with the legal practitioner of his choice. This is seen as a step towards
better administration of the law as in most of the ISA cases, the detainees were forfeited
from such right during detention.44
All that being said, we found that there are salient features that are commendable in
the SOA 2012, but there is still much room for improvement to make it in line with modern
aspirations. It is still open to debate on how the Act will be enforced by the authority as they
had suited themselves to the 52 year old ISA.
44
Abdul Ghani Haroon v Ketua Polis Negara
To enact a model preventive detention legislation for Malaysia, it is pertinent to look for
inspiration and lessons from other countries. Here, the positions of 3 jurisdictions:
Australia, the United Kingdom and South Africa, are being thoroughly analysed.
4.0 The Australian Position
Australia does not have national legislation embracing a Bill of Rights or a Charter of Rights,
although there is ongoing debate in many of Australia's states. However, Section 80 of the
Australian Constitution creates a right to trial by jury for indictable offences against
Commonwealth law. Victoria (Charter of Human Rights and Responsibilities Act 2007) and
the Australian Capital Territory (ACT) (Human Rights Act passed in 2004) are the only
regions of the nation's states to have a human rights bill, but the Bill of Rights is only
applicable in their respective states.
Australia has ratified the International Covenant on Civil and Political Right (ICCPR). It
has been generally accepted that treaties are not directly incorporated into Australian
domestic law by the international act of ratification or accession by Australia. Treaties
therefore do not 'run' in domestic law unless implemented by legislation.45
4.1 The Anti-Terrorism Bill (Number 2) 2005 and Amended Commonwealth Criminal Code
The Commonwealth Government enacted the Anti-Terrorism Bill (Number 2) 2005

(Cth) which amended the Commonwealth Criminal Code to allow for the preventative
detention of terrorism suspects without charge.
One particularly unique feature is that it also allows for this to be combined with
control orders which would restrict the freedom of movement and activities of persons
suspected of plotting terrorist acts. The control orders are for up to 12 months duration,
but successive control orders can be imposed on a person. Any breach of the control order
(which does not have to be agreed to by the person subject to the order) is punishable as a
criminal offence. The provisions allowing for control orders are found from s104.1
to104.29 of the Criminal Code (Cth). The extent of the obligations, prohibitions and
45
New South Wales v Commonwealth (1975) 135 CLR 337, at 450-51; Simsek v MacPhee (1982) 148 CLR 636, at
641; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, at 192-193.
restrictions that may be placed on a person subject to a control order is found in section
104.5(3) of the Criminal Code which states:
(3) The obligations, prohibitions and restrictions that the court may impose on the person
by the order are the following:
(a) a prohibition or restriction on the person being at specified areas or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between specified times
each day, or on specified days;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or associating with specified

individuals;
(f) a prohibition or restriction on the person accessing or using specified forms of

telecommunication or other technology (including the Internet);
(g) a prohibition or restriction on the person possessing or using specified articles or

substances;
(h) a prohibition or restriction on the person carrying out specified activities (including in
respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at specified times and places;
(j) a requirement that the person allow himself or herself to be photographed;
(k) a requirement that the person allow impressions of his or her fingerprints to be taken;
(l) a requirement that the person participate in specified counselling or education.
As can be seen from the above, a control order under Division 104 of the Criminal
Code could be extremely onerous and in fact not far removed from house arrest. Any
breach of the control order can be punished by imprisonment. This establishes new and
unusual powers significantly limiting the freedoms of persons not convicted of any criminal
offence.
Not unlike Malaysias own ISA, the Australian legislation also has a Prohibited
Contact Order which prohibits a detained person from contacting a person named in the
order while the detained person remains in preventative detention.
4.1.1 Salient Features of the New Commonwealth Criminal Code
The objective of the new preventative detention sections of the Commonwealth

Criminal Code was to prevent any imminent terrorist attack or to preserve evidence relating
to a terrorist attack.46 The preventative detention provisions seek to achieve this by
detaining the suspected terrorist for up to 48 hours47 only, which is significantly shorter
than our ISA and recently enacted Security Offences (Special Measures) Act 2012.
The Commonwealth Criminal Code allows any Australian Federal Police (AFP) officer
to apply to a senior AFP officer (the issuing authority) for a preventative detention order if
they suspect on reasonable grounds a person will engage in a terrorist act, possesses
evidence of a prospective terrorist act . The preventative detention will substantially assist
in preventing any terrorist act, or where they suspect that a person has evidence of a
terrorist attack committed in the previous 28 days and the preventative detention of the
person is necessary to preserve that evidence48. If a terrorist threat is imminent or expected
to occur within the next 14 days, coupled with the existence of reasonable grounds to
suspect that a person is involved either by way of planning or participation insofar as that
making the order would substantially assist in preventing the act, then the person may be
detained for up to 48 hours.49
An application for a further 24 hour period of preventive detention is made via a

continued preventative detention order. A continued preventative detention order can be
46
Criminal Code s 105.1
47
Criminal Code s 105.12(5)
48
49
Criminal Code s 105.4(5).
made to certain judges, federal magistrates, administrative appeals tribunal presidents or
deputy presidents or retired judges who have been appointed by the Commonwealth
government, opening this up to judicial scrutiny. The period of time that a person can be
detained without charge under the Commonwealth legislation is 48 hours. After that time,
the person must either be charged or released.
Apart from that, an Issuing Authority may refuse an issuance of a Preventative

Detention Order if no information is provided regarding the basis for the order.50
4.1.2 Guaranteed Rights of the Detainee
Persons detained under a Preventative Detention Order who has an inadequate

knowledge of English or a physical disability that prevents their reasonable communication
must be given access to an interpreter and assisted in contacting a lawyer.51
Unless impractical to do so52, as soon as practicable after a person is detained under

an Initial Preventative Detention Order or Continued Preventative Detention Order, the
police officer detaining the person must inform them:
(1) that the Preventative Detention Order has been made and the period for which they may
be detained;
(2) of any restrictions on whom they may contact;
(3) that a Continued Preventative Detention Order may be applied for;
(4) that they have a right to make representations (including representations to the Senior
AFP Member nominated by the Commissioner of the AFP as overseeing the preventative
detention) 53 and complaints (to the Commonwealth Ombudsmen or relevant police
complaints body); and,
50
51
Criminal Code s 105.5A
52
53
Criminal Code s 105.19(5)-(7)
(5) that they may seek a remedy from the Federal Court.54
Generally, a detained person may not contact any another person. Subject to a
Prohibited Contact Order, however, a detained person may contact a family member or a
member of their household; their employer, employee or business partner/colleague; or
any other person (with the permission of the police officer detaining the person) for the
purpose of notifying that person that they are safe but will be out of contact for a short
period of time.55
A detained person may contact a lawyer( right to counsel) for the purposes of
obtaining advice or instructing the lawyer to act on their behalf, and the Commonwealth
Ombudsman or State/Territory police complaints body for the purposes of making a
complaint.56
Contact with a person other than the Commonwealth Ombudsman or

State/Territory police complaints body may be monitored.57 However, contact between a
detained person and their lawyer regarding advice or instructions to act may not be used as
evidence in court against the person detained.58
The detained person, their lawyer or any person they contact while detained may make
representations to the Senior AFP Member with oversight of the order.59
It is an offense for any person to refuse to assist the police in executing a

Preventative Detention Order by providing their name and address. Any person who assists
54
Criminal Code s 105.28, 105.29
55
Criminal Code s 105.34,35
56
Criminal Code s 105.36,37
57
58
59
the police and so requests must be told the name, duty station, rank, and serial number of
the police officer who has requested assistance.60
A person detained under a Preventative Detention Order must be treated humanely

with respect for human dignity and must not be subjected to cruel, inhuman, or degrading
treatment.61
However, they may be released from detention and subsequently questioned under
either the Australian Security Intelligence Organisation Act 1979 (Cth) or the Crimes Act
1914 (Cth).
4.2 The Australian Security Intelligence Organisation (ASIO)
The Australian Security Intelligence Organisation (ASIO) has the power under
Division 3 of the Australian Security Intelligence Organisation Act (1979) to detain people
(suspects and non-suspects) for up to 7 days. However, this is only if the Director General of
ASIO satisfies the Minister and designated Federal Magistrate or Judge that there are
reasonable grounds for believing that the warrant will substantially assist the collection of
intelligence that is important in relation to a terrorism offence.62
A unique feature is that the person detained is questioned in a closed hearing

before a prescribed authority. Under s34B of the Act, a prescribed authority is a person
who is a retired judge, a current State or Territory judge or an Administrative Appeals
Tribunal President or Deputy-President who has consented to taking on the role, thus
diminishing the clutches of the Executive over the detainee into the hands of a more neutral
judicial authority.
Where the warrant is a Questioning and Detention Warrant, the Minister must also
be satisfied that there are reasonable grounds for believing that, if not immediately taken
into custody and detained, the person named in the warrant may: (1) alert a person
60
61
62
ASIO, S 34E (1), S 34G (1)
involved in a terrorism offense of an investigation into that offense; (2) fail to appear for
questioning by a Prescribed Authority; or (3) destroy, damage or alter any item or record
that must be produced under the warrant.63 It can be seen that there are many layers of
requirements to be fulfilled before harsher detention orders can be finally made.
The Inspector-General of Intelligence and Security provides additional oversight of

Questioning Warrants and Questioning and Detention Warrants. The Director-General of
the ASIO is obliged to provide the Inspector-General of Intelligence and Security with copies
of: (1) requests for warrants, warrants, and video recordings of questioning under warrants;
(2) information on any seizures, custody, or detention arrangements made under warrants;
and (3) any actions taken to ameliorate a concern raised by the Inspector-General. The
Inspector-General must proactively review any subsequent warrant issued in relation to a
person who has previously been detained.
4.2.2 Guaranteed Rights of the Detainee
At a persons first appearance before a Prescribed Authority under a Questioning

Warrant or a Questioning and Detention Warrant the Prescribed Authority must inform the
person: (1) Whether the warrant authorizes the detention of the person and, if so, for what
time period; (2) What the ASIO is authorized to do under the warrant; (3) That the person
must provide the information or records sought during questioning, regardless of whether
such information or records are self-incriminating, and must not provide knowingly false or
misleading statements; (4) That it is an offense to fail to provide such information or records
or to make false or misleading statements, but that any statement made by the person or
any record produced in response to a request made under the warrant may not be used in
criminal proceedings against that person (other than for the offense of failing to provide
information or records, or making false or misleading statements); (5) Of the period for
which the warrant is in force; (6) That the person may make a complaint either orally or in
writing regarding the ASIO (to the Inspector-General of Intelligence and Security), the
Australian Federal Police (to the Commonwealth Ombudsman), or a State or Territories
police (to the relevant complaints body); (7) That the person may seek a remedy for the
warrant or treatment under the warrant from a federal court (this must be repeated at least
63
ASIO, S 34F(4)(d)
once in every 24-hour period during which questioning occurs); (8) Whether the person is
permitted to contact others and, if so, who the person may contact and when; (9) Of the
Prescribed Authoritys role, including supervising the questioning and providing directions;
and (10) Of the role of any other person present during questioning, but not necessarily
their name.
A person detained or questioned under a Questioning Warrant or a Questioning and

Detention Warrant may contact certain persons, including (1) Authorities While in
detention or custody under the warrant the person may contact identified persons at
specified times, including the Inspector General of Intelligence and Security and the
Commonwealth Ombudsman;64 (2) Family, Lawyer, or Others A person may be permitted
to have contact with a person or persons identified in the warrant. Identification may be by
class (e.g, lawyers) or by relationship (e.g., familial).65
Video recordings must be made of both a persons appearance before the

Prescribed Authority for questioning and of any other matter directed by the Prescribed
Authority to be recorded. Where practicable, video recordings must be made of any
complaint.66
Police may use all necessary and reasonable force to: (1) take a person into custody
or detain a person in accordance with a warrant or a directive issued by a Prescribed
Authority; (2) prevent a person from escaping custody; or, (3) bring a person before a
Prescribed Authority for questioning.67 However, police may not use more force or subject
the person to any greater indignity than is necessary, and, must not do anything that is
likely to cause death or grievous bodily harm expect as is required to prevent death or
serious injury to another person.68
64
ASIO, S 34J (1)(e), 34K(9),(11)
65
ASIO, S 34G(5), (6), S34K(1)(d). A Prescribed Authority may issue a directive that a subject is permitted to
contact identified persons. Id. 34K(1)(d).
66
ASIO, S 34ZA(2).
67
ASIO, S 34V(1)
68
ASIO, S 34V(2).
The Inspector-General of Intelligence and Security or their representative may be
present at any time during which a person is taken into custody or questioned under a
Questioning Warrant or a Questioning and Detention Warrant.69 The Inspector-General may
raise concerns regarding the legality or proprietary of action in relation to a person being
question or detained with the Prescribed Authority and the Director-General of the ASIO.70
The Prescribed Authority must consider and address the Inspector-Generals concerns and
may give issue a directive suspending either the questioning or the exercise of any other
power until those concerns are addressed.71
4.3 Weaknesses
It is pertinent to note that actions taken under the preventative detention order -
are all excluded from review under Schedule 1 of the Administrative Decisions (Judicial
Review) Act 1977 (ADJR). ASIO Act, S104.2 & S 105 of ATA
69
ASIO, S 34P.
70
ASIO, S 34Q(2).
71
ASIO, S 34Q(3), (4).
5. The United Kingdom Position
5.1 UK position prior to the Human Rights Act 1998
Before the enactment of the Human Rights Act 1998, the UK courts have been upholding
the human rights by interpreting preventative detention law with a liberal approach. This
was illustrated in the case of A v Secretary of State for the Home Department where the
court held that the detention is not permitted simply on the basis that the authoritys wish
to expel a foreign national cannot take place. There are two core principles illustrated in this
case, vis--vis, that the detention of a prospective deportee until the making of the
deportation order or until his removal or departure is not unfettered. First, it may be
exercised only for the purpose for which the power exists. Secondly, it may be exercised
only during such period as is reasonably necessary for that purpose. The period which is
reasonable will depend on the circumstances of the case. Common law attaches importance
to the liberty of the individual, whether it concerns the states citizen or an alien. While
detention is an authorized tool of immigration control, the courts have been appropriately
vigilant to ensure that its use is not extended beyond that purpose.
This case is an epitome of the independence of the U.K.s judiciary. The background to the
case is in December 2004 where the Supreme Court delivered the judgment in a case
brought by some men who, despite not having been convicted or even charged with any
criminal offence, were being detained in Belmarsh prison, on the authority of the British
Home Secretary.
Due to its obligations under International Law, the British Government had no power
to expel them from the country, even although the Governments Ministers believed, largely
on the basis of intelligence information, that the men posed a terrorist type of threat to the
United Kingdom. To detain a person without trial, and without charge, is effectively
prohibited under Article 5 of the European Convention on Human Rights. However,
following the events of 9/11, the British Government exercised its right to derogate from
Article 5, on the basis of the Governments assessment of the risks posed to the countrys
security by certain people residing in the country. The Government persuaded Parliament to
enact the Anti-terrorism, Crime and Security Act 2001 and, in terms of Section 23 of the Act,
made an Order (the Human Rights Act 1998 (Designated Derogation) Order 2001), by means
of which the Government acquired statutory powers to detain, without trial, aliens believed
by ministers to pose a terrorist threat to the UK. It was under that Order that the Home
Secretary ordered the detention of these men. Article 14 of the European Convention on
Human Rights provides that the other rights expressed in the Convention are to be secured
without discrimination on any ground. Although the government derogated from Article 5,
that particular section was caught up by Article 14. The judges (by 8 votes to one) decided
that the Order was illegal and that section 23 of the 2001 Act was incompatible with the
Governments obligations under the European Convention on Human Rights.
What this case illustrates so powerfully is that, in a democracy, a truly independent

judiciary will not hesitate to pronounce a judgment against the Government in the clearest
possible terms. It is as clear an example as we have seen in many, many years of the
strength of judicial independence in the UK. In many cases, the court is able to strike down
some detention cases where it was challenged on the ground of proportionality. The
detainee must be able to prove that the detention is not proportionate as laid down in one
of the limb in the case of Wednesbury .
5.2 The Position in UK After The Human Rights Act 1998
The Human Rights Act 1998 raised great expectations for the protection of
fundamental rights - making a range of Convention rights part of municipal law in the
United Kingdom. These rights, based on those contained in the European Convention of
Human Rights (ECHR), had produce huge changes in the way UK public authorities, including
courts and tribunals, approach all aspects of the law.
The principle of proportionality has long been the key mechanism in Europe for
deciding whether state action has encroached on human rights. Prior to the UKs adoption
of the Human Rights Act 1998 (HRA), the notion of proportionality enjoyed only sparing
patronage by UK courts, and then typically only when EU obligations required it. The HRA,
however, by making the ECHR enforceable in UK courts, has introduced proportionality into
UK public law to a higher degree. Proportionality has been the deciding factor in cases
involving derogations from the ECHR based on a state of emergency, clashes between ECHR
rights, and the treatment of immigrants.
Article 17 of the European Conventions of Human Rights expressly states that no
person or state can use the limitation in the Convention to limit more than necessary. The
Doctrine of Proportionality prevents it to be used to deprive people of their Convention
rights in their entirety. Lawless v. Ireland shows the precise terms of this aspect of the
Article. The applicant was a member of the Irish Republican Army who had been detained
without trial under the Irish Offences against the State Act. Lawless was arguing that his
detention amounted to breach of Article 5, 6, 7 and 13 of the Convention. The Irish
governments argument is that they asserted that as Lawless had been involved in
subversive activities he would not be able to allege breach of his human rights. The
Commission disagreed. The object of the Article 17 was to prevent groups undermining the
Convention. It does not mean that the members of political or terrorist groups could be
deprived of their Convention rights. Even though the applicant was a member of the IRA,
the Irish government could not rely on Article 17 to justify arbitrary arrest and trial. Lawless
was not relying on Convention rights to justify his activities, but was addressing the fact that
he had been deprived of fundamental human rights relating to his detention.
5.3 Prevention of Terrorism Act 2005
One of the preventive detention law in the UK is the Prevention of Terrorism Act
2005. It provides for the detention in prison with control orders, which is imprisonment of
an extensive and non-exhaustive set of conditions on the movements of the suspected
person with restrictions. It is a form of house arrest. The powers in this Act can be applied to
British and non- British suspected terrorist.
In April 2006, the House of Lords issued a declaration under Section 4 of the Human
Rights Act 1998 that Section 3 of this Act was incompatible with the right to fair proceedings
under Article 6 of the European Convention on Human Rights in the case of Secretary of
State for the Home Department v. MB.
MB is a naturalised British citizen, who was made subject to a control order in

September 2005. His story began when police stopped him at Manchester Airport in March
2005 as he trying to board a flight for Syria. Police and security service officers interviewed
him but later allowed him to go. The next day he was stopped at Heathrow and it was
believed he was trying to get to Yemen.
In making the control order, the home secretary said the security services believed
MB was planning to cause some destruction. He was under control order which restricted
him to a house-arrest in South Yorkshire. He took the case to the court in April 2006,
claiming that the restrictions had breached his right to a fair trial. Ruling in his favour,
Sullivan J criticised the legality of the control orders regime. He said it was an
"understatement" that MB had not received a fair-hearing and there had been no proper
independent judicial oversight. The learned judge then made a Declaration of
Incompatibility against the control order regime, saying that it breached human rights.
5.4 Terrorism Prevention and Investigation Measures Act 2011
One of the more recent laws regarding preventive detention in the UK is The
Terrorism Prevention and Investigation Measures Act 2011. It is legislated to introduce new
form of control orders through the repeal of the Prevention of Terrorism Act 2005 and
introduce a new regime to protect the public from terrorism. It further provides for the
Secretary of State to impose by notice specified terrorism prevention and investigation
measures on an individual where there is reasonable belief that individual is or has been
involved in terrorism-related activity.
A two year time limit on measures is imposed under a TPIM notice. Further
measures could only be imposed if an individual has re-engaged in terrorism. Moreover, the
Secretary of State must seek the court's permission before imposing the measures, except in
the most urgent cases where the notice must be referred immediately to the court for
confirmation. The Act provides for a full review of hearing for each case where the court
can review the Secretary of State's decision that the relevant conditions were met in
relation to imposing the measures.
5.5 Sufficient Procedural and Substantive Safeguards
The Human Rights Committee has provided some guidance in the interpretation of
Article 9 International Convenant on Civil and Political Rights (ICCPR). For example, the
Human Rights Committee has stated that remand in custody will be unnecessary and
unreasonable and therefore considered arbitrary if it is not for the purpose of preventing
any threat, interference with evidence or the recurrence of crime.
In providing some guidance as to the correct interpretation of Article 9 ICCPR, the

Human Rights Committee in the case of Hugo van Alphen v The Netherlands concluded that
an arbitrary arrest and detention would include elements of inappropriateness, injustice,
lack of predictability and lack of necessity.
The Human Rights Committee has emphasized the requirement of proportionality

in applying Article 9 of the ICCPR. In C v Australia the Committee highlighted that the policy
of detaining must be reasonable, proportionate and necessary to achieve the objective
intended. This interpretation can be summarized as a statement of the principle of
proportionality. The principle of proportionality can be defined in the following way:
The principle of proportionality requires consideration as to whether a particular

measure is for a legitimate aim, and if so, whether that measure is reasonably necessary to
achieve that purpose, having regard to whether a less restrictive means is available as an
alternative to the measure in question.
Besides looking at how independent UK courts decide cases that involves preventive
detention, we should take into account the procedural human rights safeguards apply under
Article 9(2) (5) ICCPR and Article 5(2)-(5) ECHR . The ICCPR and ECHR both require a State to
accord all persons in detention four minimum human rights procedural safeguards.
1) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall promptly informed of any charges against him;
2) Anyone arrested or detained on a criminal charge shall be brought promptly before a

judge or other officer authorized by law to exercise judicial power and shall be entitled to
trial within a reasonable time to release;
3) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that court may decide without delay on the lawfulness
of his detention and order his release if the detention is not lawful; and
4) Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
6. The South African Constitution
The South African Constitution has been hailed as a model constitution that has
many important safeguards of fundamental rights.
In the South Africa Constitution, s11 had expressly provided that the right to life is
absolute throughout any act and even during proclamation of emergency. Thus, in the
context of South Africa, freedom and security limitation is very limited.
One of the efforts in safeguarding human dignity during detention can be clearly
seen from s12 (e) of the South Africa Constitution, which reads: to conditions of
detention that are consistent with human dignity, including at least exercise and the
provision, at state expense, of adequate accommodation, nutrition, reading material and
medical treatment. During detention, the state must conform that it is consistent with
human dignity and also provide adequate accommodation, nutrition, reading material and
medical treatment. This way of treatment is admirably in accordance with the rule of law
which states that one is not guilty until proven. Even a convicted prisoner has the right to
human dignity, what more a detainee in the name of investigation.72
Generally, under s33, every citizen has the right to just administrative action, which
is a right to administrative action that is lawful, reasonable and procedurally fair as well as
to be given written reasons for such action.
In s34, access to courts is guaranteed as everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal or forum.
In s35(1)(a), everyone who is arrested for allegedly committing an offence has the
right to remain silent, and s35(1)(b) provides the right to be informed of the right to remain
silent and of the consequences of not remaining silent. Moving on, in s35(2), everyone who
72
Abdul Ghafur Hamid @ Khin Maung Sein, Human Rights Law (2012) Sweet and Maxwell, pg 22.
is detained, including every sentenced prisoner, has the right (a) to be informed promptly
of the reason for being detained; (b) to choose, and to consult with, a legal practitioner,
and to be informed of this, right promptly; (c) to have a legal practitioner assigned to the
detained person by the state and all state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly.
A clear safeguard in the constitution of South Africa can be found in s35(d): to

challenge the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released. The principle of separation of powers is well
entrenched in this provision, making the court to be the last bastion of safeguard in case the
executive have abused their power to detain a person unlawfully.
It also has admirable protection of human rights in the preventive detention front. In
s37, whenever anyone is detained without trial in consequence of a derogation of rights
resulting from a declaration of a state of emergency, certain conditions must be followed.
These include:
The detainee must be allowed to choose, and to be visited at any reasonable time by, a
medical practitioner and legal representative.
The detention must be reviewed by a court as soon as reasonably possible, but no later
than 10 days after the date the person was detained. The court must release the detainee
unless it is necessary to continue the detention to restore peace and order.
The detainee must be allowed to appear in person before any court considering the
detention, to be represented by a legal practitioner at those hearings, and to make
representations against continued detention.
The state must present written reasons to the court to justify the continued detention of
the detainee, and must give a copy of those reasons to the detainee.
If a court releases a detainee, that person may not be detained again on the same grounds
unless the state first shows a court good cause for re-detaining that person
7. The Theory Behind Preventive Detention73
Before we embark on suggestions for a model preventive detention legislation, it is
pertinent to examine the principles and the legitimate aims of preventive detention.
7.1 A framework by which to assess State counter-terrorism laws
When a suspected terrorist is detained in preventive detention, the purpose is to

prevent a terrorist act. Whether this is considered a legitimate deprivation of liberty
depends at first on whether a state considers it faces a terrorist risk. The answer to this
issue is complicated because it questions the correctness of an assessment made by the
governments on a matter of national security.
According De Londres and Davis, there are 3 potential responses to the limitation of
individual liberties resulting from Executive power during terrorist-related emergency:
i) Trust the Executive to behave responsibly and lawfully;

ii) Rely on the Legislature and the popular democratic process to force the Executive to
behave responsibly and lawfully and minimize judicial intervention; or
iii) Call on the Judiciary to intervene and restrict unlawful behaviour produced by the
Executive, the parliament or both acting together.
The State Government is principally responsible for it has better knowledge of the
evidence upon which to determine whether a particular State faces a terrorist risk, as well
as exclusive control over the material to publicly disclose. However, there must be checks
and balances because this power can be easily abused. Secondly, in a Westminster
Parliamentary model like Malaysia, it is impossible to expect the Legislature to dictate that
the Executive enforce laws responsibly because both the Legislature and the Executive come
from the same ruling political party. Only when political will to change the laws is present
due to opposition pressure, can we expect change to happen. Therefore, the third safeguard,
73
The bulk of point 7 in this assignment is derived from Chapter 4 of the book: Claire Macken, Counter-
terrorism and the Detention of Suspected Terrorists: Preventive Detention and International Human Rights Law
(2011)
which is the intervention by Judiciary to uphold justice, is so important in becoming the last
bastion for the protection of fundamental liberties.
7.2 Claims that preventive detention could serve an illegitimate purpose
An unchecked executive power in a time of emergency, including terrorism, is likely

to endanger individual rights to a degree, particularly when the right affected is one
personal liberty. The history of preventive detention shows this to be a very real possibility,
with some serious human rights breaches linked to the practice. Preventive detention has
been used to restrain, confine and insulate elements of society considered alien or
antagonistic to the norms of that society.
In some nations, preventive detention has been used to facilitate or mask atrocities such as
torture, massacres, harassment and/or genocide. Examples include detention in Nazi
Germany, in the Soviet Union and for the political purpose of perpetrating racism as public
policy in South Africa.
In relation to preventing terrorism, preventive detention can be for an illegitimate

purpose because by its very nature it depends on accurate predictions of dangerousness
and practically speaking, this is an impossible task.
7.2.1 Preventive detention based on group profiling would not be for a legitimate
purpose
Profiling and rounding up describe the practice of a State in attempting to prevent

a terrorist act by indiscriminately rounding up people on the basis of profiling
characteristics such as ethnicity, country or origin or political persuasion.
Rounding up through preventive detention can temporarily prevent participation in

an activity considered a threat to public order or national security. For example, instances of
preventive detention often occur at times when a political demonstration is scheduled to
occur. The State security will forces will round up and incarcerate individuals who it is
believed will either participate in such demonstrations, or whose presence will incite the
demonstrators to endanger state security.
Rounding up corrodes public support and faith in authorities, consumes a large

amount of resources and diverts investigative techniques away from more effective, fact-
based investigations and procedures that are likely to produce real security gains.
In Australia, the Australian Federal Police (AFP) have stated that rounding up could
be one potential use of Australian preventive detention laws pursuant to div 105 Criminal
Code. The AFP submitted to the Senate committee that preventive detention could be used
to detain suspected terrorists tin transit to or at the likely targets of a terrorist attack and
be used to detain suspected terrorist at or near the site of a terrorist incident or who have
fled some distance from that site.
Greg Carne criticised the AFPs statement, saying that preventive detention under
Division 105 Criminal Code is drafted so broadly that any innocent person at the site or
within proximity of a terrorist act i.e. innocent bystander, victim or person in the wrong
place at the wrong time could be subject to a preventive detention order.
Saul, Williams and Lynch from the Gilbert + Tobin Centre of Public Law have similarly
questioned whether group propensity profiling would be the inevitable result of the
Australian preventive detention regime. Bronitt, Gani , Nolan and Williams also point to a
possibility of over policing of suspect communities.
Rounding up suspected terrorist increases the risk that people who have little or no
connection with terrorism will be wrongfully detained, the Australian Human Rights and
Equal Opportunity Commission has pointed out if the AFP is given non-specific intelligence
to the effect that an imminent terrorist act is planned by a group of young men in a
particular suburban street, it may well be within the bounds of reasonable necessity to
detain all males between the ages of 16 and 35 from that street.
7.2.2 A preventive detention order issued against a dangerous person would
not be for a legitimate purpose
Preventive detention may be ordered where a person is considered likely to commit

or to repeat an offence simply because he is the type of man whom one might reasonably
expect such criminal conduct. A person might be considered a suspected terrorist based on
a prediction as to his or her future behaviour by reference to his or her past, or based on
appearance, behaviour, conduct, or name.
The Australian High Court had pointed out that as these types of detention are based
on predicted personal behavioural conduct, there is a tendency to turn to psychiatrist,
psychologists and behavioural experts to provide an assessment of risk. Most of the
criticism of preventive detention generally stems from the dependence upon predictions of
dangerousness, the accuracy of which is considered by many as practically speaking,
impossible.
An incorrect prediction as to future conduct will result in an innocent person being

wrongfully detained. Not only does this offend the presumption of innocence, preventive
detention based on dangerousness is impossible to disprove as the order is based on a
prediction as to the future.
7.3 Claims that preventive detention could serve a legitimate purpose
Preventive detention can be considered legitimate when thought of as part of an

overall state counter terrorism strategy referred to as the intelligence model of counter
terrorism policy.
Fenwick and Phillipson devised the following three categories of governmental policy
responses to terrorism by reference to the work of Whitty, Murphy and Livingstone:
i) a military one, treating the fight against terrorism as a form of warfare

ii) a police-based one, treating terrorism simply as a form of criminal activity, to be
detected and then defeated using the criminal justice system
iii) a political response to terrorism, where terrorism is viewed as a form of armed
rebellion to be resolved through negotiation and political process, referring to the United
Kingdom Governments response to political violence in Northern Ireland.
In Australia, Simon Bronitt, Miriam, Gani have framed the debate as to preventive
detention within various state policy models referring to criminal justice model as a
prevention and disruption system and the intelligence model as a system aimed at
prosecution and punishment. Thus, Australia conforms to the intelligence model.
In the US, preventive detention is within the intelligence model of counter

terrorism strategy in that it is proactive rather than reactive with an emphasis on preventive
measures and intelligence to infiltrate terrorist organisations and thwart potential terrorist
acts. As a preventive measure, under the intelligence model, terrorism is not viewed as a
criminal activity but rather as a threat to the security of the state. The goal of intelligence
investigations is not prosecution or punishment, but rather to acquire information which
will allow those with coercive capacity to prevent an undesirable outcome from taking place.
Preventive detention, therefore, could be said to serve a legitimate purpose within

then intelligent model because:
a) Preventive detention is for the purpose of preventing an imminent terrorist act
or preserving evidence relating to a recent terrorist act, not for the purpose of
criminal questioning or criminal prosecution.
b) To achieve its purpose of thwarting a potential terrorist, preventive detention
has a lower threshold than that required for criminal arrest.
c) Preventive detention can be based on lesser evidence than the criminal law and
for that reason overcomes difficulties relating to obtaining evidence concerning a
terrorist charge.
7.4 The principle of proportionality to assess whether preventive detention can serve a
legitimate or illegitimate purpose
Firstly, preventive detention can serve a legitimate purpose as a precursor to formal

criminal charge. Policing authorities can intervene at an earlier time than the criminal law
would otherwise allow to give increased time to gather and assess information for the
purpose of counter-terrorism.
Preventive detention can also have a legitimate non-criminal legislative purpose

when it forms part of an overall intelligence model of counter terrorism strategy based on
prevention and preparedness against terrorist acts. Pursuant to this model, terrorism is not
treated as a crime or dealt with through ordinary criminal process. Instead, preventive
detention serves the legitimate purpose within an overall model intended to emphasise
preventive measures, gain intelligence to infiltrate terrorist organisations and to prevent an
act of terrorism before it occurs.
However, preventive detention can lead to serious human rights concerns and
misuse of this form of detention for an illegitimate purpose.
8. Matching The Pieces - Suggestions For a Model Preventive Detention
1) Ratifying the international documents and subsequently amending the laws

in line with international standards
It has been the government policy that the UDHR is not a legally binding instrument
in Malaysia but merely a statement of principles devoid of any obligatory character. This
argument has been accepted by the courts.74
It is to be noted that the other two principal human rights instruments namely the
International Covenant on Civil and Political Rights 1976 (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights 1976 (ICESCR) are also not ratified by
Malaysia.
The establishment of the Human Rights Commission of Malaysia (SUHAKAM)

through the Human Rights Commission of Malaysia Act 1999 initially offered a gleam of
hope to the Malaysian citizen of a better safeguard of human rights in Malaysia. However,
SUHAKAMs limited advisory role to the government (with no enforcement power) is proven
to be a hindrance to the development of human rights protection in Malaysia. The
Parliament lack of interest to debate SUHAKAMs annual report further affirmed that such
lackadaisical attitude of the Executive has extended to the Legislature.
The Universal Declaration of Human Rights 1948 (UDHR) in Article 3 (and in Article
9(1) of the ICCPR) recognizes that every person has the right to life, liberty and security and
Article 10 (and Article 14(1) of the ICCPR) explicitly guarantee the right of a person to a fair
and public hearing by an independent and impartial tribunal in the determination of his
rights and obligations and of any criminal charge against him. Article 11(1) (and Article 14(2)
of the ICCPR) proclaims that everyone charged with a penal offence has the right to be
74
see Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356 and Muhamad Ezam Mohd Nor
& Ors v Ketua Polis Negara [2002] 4 MLJ 449
presumed innocent until proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defence.
In short, if Malaysia has the political will to conform its laws with regards to the principles of
the UDHR and ratifies the ICCPR, there will be better safeguards both internally whereby
national laws must conform to those principles, and also externally where the international
community can now adjudicate the actions of the Malaysian government.
2) Amending the Constitution Article 149
a) The sunset provision must be reintroduced, whereby a law enacted under Art 149
automatically expires one year after the date of its coming into force. Votes of not less
than two-thirds of the total number of members of both the Houses of Parliament
respectively and the consent of the Majlis Raja-Raja is required to extend the legislation
for another year. This would prompt an annual public and parliamentary discourse on
the necessity of preventive detention laws, pushing any gross misuse of laws to the
forefront.
b) All law enacted under Art 149 must be subject to judicial review and no ouster clauses
are allowed. It has never been the intention of the drafter of the Federal Constitution
that exclusion of judicial review of any action taken by the Executive under any
legislation made under Article 149.
c) The definition of subversion is of a broad and catch-all nature. Even local hooliganism,
vigorous criticism of official policies, industrial action like strikes, mobilizing of voters to
throw out the Government in power, activities bookies and call to taxpayers to withhold
payment could conceivably fall within the perimeters of subversion. In South Africa,
terrorism, subversion, sabotage and communism are more precisely defined. Hence, a
precise nature as to what amounts to subversion should be defined in the Article 149
so that the law enacted under Article 149 would not be used for other purpose.
d) One of the grounds for preventive detention public order should be deleted from
Article 149. In US, UK, Canada and Australia, these countries do not allow preventive
detention on public order grounds. These countries allow very limited preventive
detention in suspected terrorism cases only. This is because it is aberrant in a democracy
and anathema to the rule of law.
e) The initial detention period for any detention without trial under any laws made under
Article 149 must be stated in Article 149 itself and not in the relevant anti-subversion
laws. This can be seen in the India Constitution, Article 22 that stated that any person
who is detained under prevention detention shall not exceed more than 3 months.
f) In South Africa, while Constitution expressly prohibits the use of preventive detention
for citizens, non-citizens may be held in preventive detention outside of the regular
criminal justice system. In Canada and New Zealand, a line was drawn between the
rights of citizen and non-nationals. Amendments should be made in Article 149 to draw
a difference between citizens and non-citizens.
g) Concern for human rights and human dignity (Article 10) plays an enormous role in
determining the legal parameters of domestic legislation governing the detention of
suspected terrorists in South Africa. A specific requirement that any laws to be made
under Article 149 must obtain a human rights impact assessment report from
SUHAKAM first and such report must be tabled before the tabling of the anti-subversion
law. Such requirement must be expressly provided for under Article 149
h) A new requirement that the Executive must submit a report on the operation of the
anti-subversion laws under Article 149 to the Parliament must be inserted into Article
149. The Parliament must also be obliged expressly in Article 149 to debate the report
and the Executive must be answerable to the Parliament on any issues that may arise
from such debate.
3) Definition of subversive offences should be restrictive to prevent misuse
Terms such as security offences should be restricted to only terrorist activities where
physical violence and threats to the countrys public order is really imminent. It must also be
framed to prevent group profiling, in that it must target specific suspected individuals
backed by real evidence instead of hauling up a random group of people. Furthermore, it
must have several strict requirements for a person to be classified as a real threat. A person
cannot be dangerous by his mere appearance or premature suspicion by the authorities,
but there must be concrete and legitimate evidence before a person is arrested.
4) Inserting more procedures and requirements which the authorities must
comply before allowed to arrest
In line with the Australian position, provisos such as substantially assist and
imminent in the next 14 days establishes a higher threshold of requirement which the
authorities must comply with before being allowed to commence an arrest. Moreover, it is
also suggested that the authorities must also satisfy that both the Minister and a judge in
order to legitimise an arrest. Or in the case in UK, the authorities must actually seek the
permission of the courts, unless it is of the most urgent circumstances.These safeguards
necessarily remove, at least to a minimum level, the arbitrariness and ambiguity of
executive decisions.
Article 9(1) of the ICCPR reads: 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.
The Human Rights Committee has provided some guidance in the interpretation of
Article 9 ICCPR. For example, the Human Rights Committee has stated that remand in
custody will be unnecessary and unreasonable and therefore considered arbitrary if it is
not for the purpose of preventing fight, interference with evidence or the recurrence of
crime.75
In providing some guidance as to the correct interpretation of Article 9 ICCPR, the
Human Rights Committee in the case of Hugo van Alphen v The Netherlands76 concluded
that an arbitrary arrest and detention would include elements of inappropriateness,
injustice, lack of predictability and lack of necessity.
75
Claire Macken, Counter-terrorism and the Detention of Suspected Terrorists: Preventive Detention and
International Human Rights Law (2011), p 47
76
(305/1988) 23 July 1990, UN Doc CCPR/C/39/D/305/1988
5) Reducing the permitted period to detain a person
Furthermore, the detention period should also be shortened. In Australia and UK, the
detention period is only limited to 14 days whereas in Canada the detention period is much
shorter which is only for 72 hours. The ISA, which is capable of detaining a person for 2
years and even an extension to an indefinite amount of time; as well as the new Security
Offences (Special Measures) Act 2012 which permits detention up to 2 months clearly falls
short in comparison to international standards.
6) Application for further extension needs the consent of a non-Executive

body Judiciary
This infuses the role of the judiciary in ascertaining whether it is justified to extend the
detention order of a person. The authorities now have the burden to convince a magistrate
or judge, and not its immediate master which is the Minister, to detain a person longer than
permitted. Furthermore, unnecessary and unreasonable detentions must never be
tolerated.
7) Introduction of Control Orders
There is always room for two types of preventive detention. First, is the traditional
detention where the detainee is kept away from the society. Second, is a new form of
detention known as control order, used in Australian and UK authorities in preventive
detention.
The traditional detention is to be used on highly dangerous persons that impose real
threats to our nations security. On the other hand, second type which acts like a house
arrest, is to be used on persons who are suspected to be imposing such a threat. To prevent
abuse of power, the court must be able to give its own independent justification in deciding
between real threats or suspected threats. The different between these two types of
detention is that the latter is defined as movement with restriction. The suspect will be
ordered to keep his movement restricted in certain area and his passport will be
surrendered to the authorities. It is also known as prison without bars. Nevertheless, the
person being detained can still have access to family members and certain people permitted
by the authorities, instead of being separated totally from the society in complete secrecy.
8) Curtailing the actions of the authorities to prevent abuses
There must be a statutorily written code of conduct for the authorities to comply in order
for them to realize the limitations of their actions as well as recognising the rights of the
detainees. In Australia, the police may not use more force or subject the person to any
greater indignity than is necessary, and, must not do anything that is likely to cause death or
grievous bodily harm expect as is required to prevent death or serious injury to another
person.
9) Specifically laying down the rights of detainees
The most fundamental rights of detainees such as access to family members, a legal counsel
and even an interpreter should be written into the model preventive detention law.
Furthermore, it is pertinent for the authorities to inform the detained person of their
constitutionally enshrined rights. They must also have regard for the dignity of the detainees
and to not subject them to any cruel or unusual treatment.
10) Right to compensation
Like what the South African Constitution provides, a person who can prove that he is
wrongfully detained can demand a right to compensation for suffering under detention,
whether in monetary or any other forms.
Article 9(5) ICCPR provide for a right to compensation in the event of unlawful arrest and
detention. The right to compensation in the ICCPR applies to all unlawful detentions,
including detentions which are unlawful under ICCPR or detentions which are unlawful
under a States own domestic law. In A v Australia it was confirmed by the Human Rights
Committee that compensation will be payable even when detention is lawful under
domestic law but contrary to the ICCPR.77
77
A v Australia (560/1993)30 March 1997, UN Doc.
11) Extending the powers of Judicial Review
The decision of the authorities or the Minister to detain a person should be open to judicial
scrutiny in order to prevent abuse of powers.
Article 9(3) ICCPR provides anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or rather officer authorized by law to exercise judicial
power and shall entitled to trial within reasonable time or to release. It shall not be the
general rule that persons awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial proceedings and
should occasion arise, for execution of the judgment.
Although the Human Rights Committee claims that the interpretation that Article 9(3) only
applies to detention in which criminal charge is brought, we can look for inspiration in the
wider application of Article 5(3) of the ECHR which requires all persons in preventive
detention to be brought before a judge for the purpose of examining the detention or for
the purpose of deciding the merit.
8.2 A Shift Towards Pre-Charge Detention?
Claire Macken in the book Counter-terrorism and the Detention of Suspected

Terrorist Preventive Detention and International Human Rights Law argued that instead
of terrorism legislation, state criminal laws should expand and adjust to respond to terrorist
crimes because it is a less intrusive measure.
This alternative model law is referred to as pre-charge detention and is contended

to be suitable to achieve its legitimate purpose of preventing a person from committing an
imminent terrorist act.78
Any form of detention for the purposes of preventing terrorism should be situated
within the boundaries of State criminal law.79 In a liberal democracy it may be accepted that
one should not suffer detention until a crime has been committed.
A pre-charge detention model proposed incorporates both substantive and

procedural human rights safeguards to ensure that detention for the purpose of minimizing
terrorist risk would comply with Article 9(1) ICCPR. The model shifts counter-terrorism
strategy into a criminal justice model as opposed to an intelligence model to enhance
human rights guarantees, addressing the concerns of illegitimate purpose.
An adjustment to the criminal law is justifiable for the following reasons80:
(i) Adjusting the criminal law to accommodate new circumstances not unprecedented in
State laws Unlike preventive detention, pre-charge detention would not be executive
detention but a step in criminal proceedings; towards adjudging and punishing criminal
guilt.
78
Chapter 5: The way forward: A model law for the detention of suspected terrorists within a criminal law
framework, pg 136
79
Ibid, at pg 149
80
Ibid, at pg 150
The UK Home Office has recently indicated that criminal prosecution is the first
objective of counter-terrorism policy, and as a result turning information into evidence
should be uppermost in the minds of all those involved in acquiring evidence at the earliest
possible stage in the process.81
(ii) a criminal law framework for legitimate preventive counter-terrorism measures is a key
recommendation from several bodies in international law because of the protection of
human rights:
United Nations Global Counter-Terrorism Strategy, in the form of a General

Assembly Resolution and Plan of Action annexed to the Resolution is intended as a
global strategic apprach to the counter-terrorism measures of States. Part IV of the
Plan of Action states measures to ensure respect for human rights for all and the
rule of law as the fundamental basis of the fight against terrorism. The Plan of
Action is phrased in terms of a criminal justice approach for States to Counter-
terrorism.82
The International Commission of Jurists has also particularly emphasised the need to
place preventive detention within criminal law, with adjustments to accommodate
terrorism where necessary. In its 2009 reports, the ICJ considered that the criminal
law must not be undermined, as is often the case connected with terrorism. The
crminal justice system is one that has evolved over the generations to ensure that
innocent people are allowed to go free, guilty people are properly punished for their
crimes, and society can rely confidently on the rule of law to protect it from wrong
doing. ICJ also recommended adjusting the ordinary rules of crminal procedure and
evidence to the complexities of terrorist investigation and prosecution.83
The key to this model is that criminal prosecution for the purposes of counter-
terrorism should only occur once there is an act done, or said, in furtherance of an
81
Ibid, at pg 153
82
Ibid, at pg 153
83
Ibid, at pg 154
intention to commit a terrorist act. At least by then there might be sufficient evidence to
secure a conviction beyond reasonable doubt.
Criminal law enshrines and safeguards important values of individual responsibility,

and allows for the application of long-established procedures and due process that can be
suitably adjusted for a counter-terrorism purpose. In the criminal law in which pre-charge
detention is situated, however, common law rules excluding improperly or unfairly obtained
confessions and admissions (referred to as the exclusionary rules of evidence) remain as
protection against police impropreity in the interrogtaion of criminal suspects. Failing to
caution or an unreasonable delay in bringing the accused before judicial authority, therefore,
will mean the evidence is unavailable at criminal trial. This exclusion is the only consequence
for failing to comply with the requirements for questioning and interrogation. Exclusionary
rules of evidence recognise the need to balance fairness to the suspect against effective
interrogation of criminal suspects.84
This approach would still involve difficult questions of risk assessment and prediction
in the interests of preventing the devastating consequences of a terrorist attack, but
minimizes the chance of both rounding up and group profiling, contended to be
illegitimate purposes of a preventive detention order. After all, predictions of
dangerousness by their very nature are unreliable, and it is notoriously difficult to predict
who will commit a crime.
A pre-charge detention model means85:
(a) There is a general standard for reasonable suspicion that there are sufficient facts or
information to satisfy an objective observer than an offence has been committed.
(b) When assessing reasonable suspicion for terrorist crime, a different standard will apply
than that for ordinary crime, given the difficulties in investigating and prosecuting terrorist
84
Ibid, at pg 155.
85
Ibid, at pg 157.
offences.
(c) Although a State will not be required to disclose confidential sources of information or
facts for terrorist crime, the Court must still be able to ascertain whether the standard of
reasonable suspicion has been complied with. Some facts or information must be
produced to the Court justifying the arrest and detention. This information may be
protected by State national security laws.
The court should take into account the special exigencies of terrorist crime. State
authorities applying for a pre-charge detention warrant should, however, still have to meet
the standard of reasonable suspicion and furnish at least some facts or information capable
of satisfying the Court that the test in complied.
This approach recognizes that terrorist crime falls into a special category. Because of
the attendant risk of loss of life and human suffering, the police are obliged to act with
utmost urgency in following up all information, including information from secret sources.
Lastly, it was asserted that pre-charge detention as a measure of last resort. A pre-
charge detention warrant is only available when less intrusive measures are not available.
Therefore, from the above analysis, we can see that an anti-terrorism law model is
not the be all and end all in combating subversive activities. The Penal Code and relevant
criminal laws can be adjusted to become a force itself. The main difference is that when
subversive activities are governed under criminal law, the safeguards towards the rights of
suspects - from arrest to detention are much comprehensive in nature.
Bibiliography
Abdul Ghafur Hamid @ Khin Maung Sein. (2012) Human Rights Law. Sweet and Maxwell.
Australian Law Library of Congress. TERRORISM LAWS: QUESTIONING WARRANTS AND

QUESTIONING AND DETENTION WARRANTS (2008). Available at
http://www.loc.gov/law/help/australia-questioning-warrants.pdf
Claire, M. (2011) Counter-terrorism and the Detention of Suspected Terrorists: Preventive Detention
and International Human Rights Law
Hammond, F. (2007)Terrorisms Next Victim? Judicial Review of the Malaysian Internal Security Act,
1960, Asia-Pacific Law & Policy Journal Vol 8 Issue.
Khaira, H.S. Preventive Detention: Part 1 Constitutional Rights and the Executive from [2007] 1 MLJ
lxiii
Lim, K.S. (1986) Crisis of Identity
Malaysian Bar website. (2012). False hope in Security Offences Act. Available at
http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=35171
Pawan Che Merican, ISA Detention in Malaysia: Whither Judicial Review. Available at
http://www.onmalaysianlaw.com/2009/10/isa-detentions-in-malaysia-whither_7913.html
Rizal Yaakop. (2011). THE EMERGENCY LAW IN MALAYSIA: Political Security or Liability?, In-Spire
Journal of Law, Politics and Societies (Vol. 5 No.2 2011) Available at http://www.in-
spire.org/archive/Vol%205-%20no2/yaakop.pdf
R. Rueban Balasubramaniam, The Karam Singh Case in H. P. Lee & Andrew Harding
eds., Constitutional Landmarks in Malaysian Law: the First 50 Years (Kuala Lumpur: Malayan Law
Journal/LexisNexis, 2007).

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1.

An Introduction to Preventive Detention The Malaysian Position

Before we begin to discuss on a model preventive detention legislation, it is

1.1 The Sunset Clause

1.2 To meet such threat

In terms of detainment, it is interesting to note that it is stated in Parliament that a

1.4 Robbing Away Our Fundamental Rights

1.4 Limited to Communist Insurgencies?

1.5 Blatant Abuse and Misinterpretation of the ISA

It is interesting to note that on a report submitted to the United Nations Human

It is insufficient to merely parrot the provisions of section 8 or section 73(1)(b) of the

1.6 The Role of the Advisory Board

Article 151 of the Federal Constitution states as follows:

Article 151. Restrictions on preventive detention.

Under Article 151(1)(b), the Advisory Board is empowered to consider any

However, amongst others, it is observed that where a detainee detained under

Nevertheless, there can be recommendations as to the legislative reform of the ISA

1.7 Judicial Review?

The Reid Commission in justifying the authorisation of infringement of fundamental

With the permission to violate 4 fundamental liberties, the non-existence of a sunset

1.8 Emergency Powers - Article 150

The procedure for declaring a state of emergency must be constitutionally defined,

2.1 Reviewing the Legality of the Detention: A matter of Administrative or Constitutional

2.3 A New Wave: Proportionality in Public Law?

Actually the use of a proportionality principle in examining whether a restriction of a

It is also shown that there is an endless debate as to whether an objective or

Further by applying proportionality principles, the burden will be shifted to the

4.0 The Australian Position

The Commonwealth Government enacted the Anti-Terrorism Bill (Number 2) 2005

(a) a prohibition or restriction on the person being at specified areas or places;

(b) a prohibition or restriction on the person leaving Australia;

(d) a requirement that the person wear a tracking device;

(e) a prohibition or restriction on the person communicating or associating with specified

(f) a prohibition or restriction on the person accessing or using specified forms of

(g) a prohibition or restriction on the person possessing or using specified articles or

(j) a requirement that the person allow himself or herself to be photographed;

(l) a requirement that the person participate in specified counselling or education.

4.1.1 Salient Features of the New Commonwealth Criminal Code

The objective of the new preventative detention sections of the Commonwealth

An application for a further 24 hour period of preventive detention is made via a

Apart from that, an Issuing Authority may refuse an issuance of a Preventative

4.1.2 Guaranteed Rights of the Detainee

Persons detained under a Preventative Detention Order who has an inadequate

Unless impractical to do so52, as soon as practicable after a person is detained under

(2) of any restrictions on whom they may contact;

(3) that a Continued Preventative Detention Order may be applied for;

Contact with a person other than the Commonwealth Ombudsman or

It is an offense for any person to refuse to assist the police in executing a

A person detained under a Preventative Detention Order must be treated humanely

4.2 The Australian Security Intelligence Organisation (ASIO)

A unique feature is that the person detained is questioned in a closed hearing

The Inspector-General of Intelligence and Security provides additional oversight of

4.2.2 Guaranteed Rights of the Detainee

At a persons first appearance before a Prescribed Authority under a Questioning

A person detained or questioned under a Questioning Warrant or a Questioning and

Video recordings must be made of both a persons appearance before the

5.1 UK position prior to the Human Rights Act 1998