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The Enactment of the Prevention of Terrorism Act, 2015, in pursuance of the Constitution of Malaysia: Reincarnation of the notorious Internal Security Act, 1960?
Naz, Safia Bari, M. Ehteshamul
Naz, Safia
Bari, M. Ehteshamul
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Abstract
Preventive detention is an extraordinary measure as it permits executive dispensation of the personal liberty of an individual on the mere apprehension that, if free and unfettered, he may commit acts prejudicial to national security or public order. Given the extraordinary nature of this power, it is, therefore, contended that the scope of the power should be confined to genuine emergencies threatening the life of the nation. Notwithstanding this, Article 149 of the Federal Constitution of Malaysia empowers the Parliament to enact preventive detention laws, which authorize the executive to exercise the power of preventive detention without the precondition of an emergency. Furthermore, the Constitution does not stipulate adequate safeguards for mitigating the harshness of preventive detention laws. In this Article, it will be argued that the weaknesses of the constitutional provisions concerning preventive detention have enabled succeeding generations of executives in Malaysia to not only enact one preventive detention law after another--the most recent being the Prevention of Terrorism Act, 2015 (POTA)--but also to rely on them for arbitrarily detaining its political adversaries. Crucially, it will be demonstrated that the POTA is not only closely modelled on the controversial Internal Security Act, 1960 (ISA) but in some respects is more draconian in nature. Consequently, recommendations will be put forward in this article for insertion in the Constitution of Malaysia a number of guarantees with a view to obviate the possibility of the use of preventive detention legislation, such as the POTA, for arbitrarily encroaching on the liberty of individuals.
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Date
2018
Type
Journal article
Journal
Suffolk Transnational Law Review
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Volume
41
Issue
1
Page Range
1-50
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