1

IS IT THE I.S.A. PER SE OR THE INTERPRETATIONS GIVEN BY

THE JUDICIARY THAT MAKES IT SUCH A DRACONIAN LAW

NOW?

[This article is based on 2 published articles by the author: Preventive Detention: Part I –

Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63 & Preventive

Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ

cxxxii; [2007] 4 MLJA 132; and, a current work in progress: Legal Developments that shaped

the Formation of Malaya and Malaysia.]

There has been much focus on the infamous Internal Security Act 1960 (ISA)

in recent times and even a movement calling for it to be repealed altogether. Is

it the law that is bad or is it the manner in which the law has been applied by

the executive and interpreted by the judiciary that has been found wanting?

Although Malaysian constitutional law has its roots in English law and follows

the ‘Westminster’ model and supposedly has the doctrine of ‘separation of

powers’ there has been scant respect for the doctrine. In Malaysia, this

constitutional concept has been reduced to being just a convenient tool to be

used by the executive to increase its powers and at other times to be severely

criticised as a remnant of British colonialism totally unsuitable and

unsustainable in the modern Malaysia. The lack of respect for the

parliamentary process is reflected in the comments of the former Prime

Minister of Malaysia, Dr Mahathir, who has been quoted by Amnesty

International1 as saying that:

2

‘(I)n the main, Parliamentary sittings were regarded as a pleasant formality... which

would have no effect on the course of the government. The sittings were a concession

to a superfluous democratic practice. Its main value lay in the opportunity to flaunt

the Government's strength. Off and on, this strength was used to change the

constitution. The manner, the frequency and the trivial reasons for altering the

constitution reduced this supreme law of the nation to a useless scrap of paper.’ [The

Malay Dilemma, 1970, Times Books International]

In addition to the ISA, preventive detention is also allowed by the Dangerous

Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public

Order and Prevention of Crime) Ordinance 1969. The Human Rights

Commission of Malaysia (SUHAKAM) has recommended that the ISA be

repealed and replaced by new comprehensive legislation that, while taking a

tough stand on threats to national security (including terrorism), does not

violate basic human rights.2 The USA, one of the keenest critics of preventive

detention in other countries, has since the terrorist attack on the New York

Twin Towers on 11 September 2001 changed some of its perceptions.3

Australia has also reacted by enacting numerous anti-terrorist laws that have

seriously eroded some of the human rights of its citizens and has introduced

limited preventive detention.4

The sad truth and stark reality is that the Malaysian courts have not been

notably vigilant to prevent the executive employing preventive detention as an

easy substitute for adequate penal laws and using it as a means to suppress

political opposition and dissent. ‘Anti-government’ has at times been simply

equated to being ‘anti-national’. In their report, the Reid Commission (that

was entrusted with the job of drafting the Merdeka Constitution) mentioned

that the rights they were recommending had already been firmly established

throughout Malaya and the guarantee of the fundamental rights would be

provided by the mechanisms of: the ‘Constitution being the supreme law’; ‘the

3

power and duty of the Courts to enforce these rights’; and, ‘the Courts would

annul any attempt to subvert any of them whether by legislative or

administrative action or otherwise’.5

Not only have the Malaysian courts failed to annul the encroachments on the

fundamental rights but their lack of judicial activism has in fact subverted

those rights further. The failure of the Malaysian courts in relation to the ISA

starts with the fact that they have generally accepted the subjective satisfaction

of the executive for justifying the detention of an individual.6

In March 1988, Article 121(1)(b) of the Malaysian Constitution was amended

to make the jurisdiction and powers of the court subject to federal law rather

than the Constitution itself. This made it possible for the Malaysian

Parliament to limit or abolish judicial review by a simple majority vote rather

than by the two-thirds majority required for a constitutional amendment. This

was followed up by amendments to the ISA in 1989 that inserted sections 8A,

8B and 8C and they seem to slam the door shut altogether on judicial review

where the substantive power is exercised by the Minister under section 8. The

only review allowed is limited to procedural matters.

The courts have been most reluctant to address the fundamental issue of

whether the amendment to Article 121(1)(b) of the Malaysian Constitution

should have been allowed to be made. They have preferred instead to

repeatedly adopt the view taken by the Federal Court in Sugumar

Balakrishnan7 that ‘the court must give expression to Parliament’s intention’

and inquire no further. In Kerajaan Malaysia & 2 Ors. v Nasharuddin bin

Nasir8 the Court was willing to shackle its own powers when it decided that

although section 8B of the ISA ousted the court’s review jurisdiction it was not

4

unconstitutional and that ‘an ouster clause may be effective in ousting the

court’s review jurisdiction if that is the clear effect that Parliament intended;

that if the intention of Parliament is expressed in words which are clear and

explicit, then the court must give expression to that intention.’

Malaysian legal history shows that for too long the Malaysian judges have

dubiously circumvented or disingenuously interpreted any right that may have

been available to a detenu into impotence. For example, Suffian FJ in Karam

Singh v Menteri Hal Ehwal Dalam Negeri9 nearly choked the life out of

Article 5(1) of the Malaysian Constitution when he made an unnecessary

observation that there was a difference between the Indian and Malaysian

constitutions in that the word ‘procedure’ did not appear in the Malaysian

Constitution as it did in the Indian Constitution. Fortunately, Lee Hun Hoe CJ

(Borneo) in Re Tan Boon Liat10 gave Article 5(1) a lifeline when he rightly

ruled that the expression ‘in accordance with law’ in Article 5(1) was wide

enough to cover procedure as well and if the expression were to be construed

as to exclude procedure than it would make nonsense of Article 5(1).

Raja Azlan Shah FJ (as His Highness then was) in Loh Kooi Choon v

Government of Malaysia11 summed up the true attitude of the Malaysian

courts when he even went so far as to say:

‘Our courts ought not to enter this political thicket, even in such a worthwhile cause

as the fundamental rights guaranteed by the constitution…’12

Delivering the judgment of the Court, Steve L.K. Shim C.J. (Sabah &

Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir,13 has

accepted that under section 8 of the ISA, the Minister has been conferred

5

powers of preventive detention that ‘can be said to be draconian in nature’ but

nevertheless valid under the Malaysian Constitution. Accepting that these

rights are ‘draconian’ but, at the same time legitimate in a constitution that has

a chapter on ‘fundamental liberties’, is paradoxical and an affront to justice

and human dignity.

In a number of cases section 8(1) of the ISA has been challenged on the ground

that it does not provide an adequate objective standard that the courts can

utilise to determine if the requirements of law have been complied with. This

is where the detenu will be faced with a steep wall to scale made even more

slippery by some of the decisions of the Malaysian cases that have only helped

to bury scant safeguards that could have been afforded to the detenu by a

judiciary prepared to respect them. The need to be vigilant is illustrated in an

old Burmese case,14 where a similar provision in a similar Act was considered,

and the Burmese Supreme Court ruled that to apply the subjective test to the

‘satisfaction’ of the Minister would clearly be against the provision of the Act

as a whole. If the subjective test is to be deemed to be the proper test then it

must be made to depend on the unchallenged opinion of the Minister so

empowered. The fact that there is an immediate right to make representations

against the order of detention to the Appeal Commission implies that the

Minister’s exercise of discretionary power to detain a person cannot be a

subjective power. The Appeal Commission had a duty to investigate the

grounds of detention. In order to do that the Appeal Commission had the right

to call on the Minister to provide such information and documents, as they

required. If the Appeal Commission reported that it could not find any

reasonable ground for the continued detention of a person, that person was to

be released with all speed. As the Burmese Supreme Court said:

6

‘To no ‘satisfaction’ or ‘belief’ which can thus be enquired into and

overruled by an extraneous authority can the subjective interpretation be

applied.’15

In Karam Singh’s case the order of detention stated three grounds in the

alternative. The appellant argued that the detention order was vague and

ambiguous and had been made by the Minister without proper care and

consideration. Ong C.J. in this case defined ‘want of good faith’ as to mean

‘no more than that, in the serious matter of depriving a citizen of his liberty

without trial, there was absence of care, caution and a proper sense of

responsibility.’

Despite such rhetoric by Ong C.J. he still did not find that the providing of

grounds in the alternative were sufficient to constitute ‘absence of care,

caution and a proper sense of responsibility.’ In proving mala fides what has

got to be made out is not want of bona fides but want of bona fides coupled

with non-compliance of mind on the part of the detaining authority.16

Providing grounds in the alternative where some of the grounds are obviously

irrelevant should have vitiated the detention order.

In the case of Noor Ashid bin Sakib v Ketua Polis Negara17 Jeffery Tan JC

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.’18 The Court was more explicit in Abdul Razak Bin Baharudin and

Others v Ketua Polis Negara and Others19 when it went so far as 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 ‘what was

7

considered as less important previously i.e. procedural non-compliance

became important and what was considered as more important previously i.e.

mala fide became non-consequential.’ The Court further ruled that an order of

the Minister under section 8 could now only be challenged on the ground of

procedural non-compliance. Steve Shim C.J. (Sabah & Sarawak) in

Mohamed Ezam Mohd Noor v Ketua Polis Negara & Ors20 made sure that

mala fide could not be used as a ground to challenge a detention order when he

said that mala fide is not a ‘procedural non-compliance’ and any test, whether

subjective or objective, used to determine whether mala fide has or has not

been shown is of no relevance now to a challenge against an act done under

section 8 of the ISA. The Malaysian Courts have thus effectively bolted the

door on judicial review of the substantive exercise of the power of preventive

detention and have even given the Executive the power to act in bad faith and

to deny a detenu even the minimum rights that every individual should have

against the State in a democratic society such as Malaysia.

It is clear that the legislature has been active in closing the doors of judicial

review but the courts themselves have also been helpful in the process.

As it can be seen, in almost all Malaysian cases, the judges have been quite

content to allow the executive to exercise the power of detention unfettered by

any restraining power. Higher constitutional ideals are seldom alluded to in

their judgments and on most occasions it is an exercise in semantics to

interpret the words of the Malaysian Constitution and other written laws to

strenuously accommodate preventive detention laws. There have been some

lonely voices raised such as the declaration made by Edgar Joseph Jr. J. (as he

then was) in Athappen a/I Arumugam v Menteri Hal Ehwal Dalam Neqeri.

Malaysia & Ors21 that if it is true that an order of detention:

8

came to be made in a casual or cavalier fashion, it cannot properly be said that the

Cabinet or the minister concerned had been “satisfied”. On the other hand, if the

decision was made upon a proper evaluation of the facts and surrounding

circumstances and after due deliberation, that was all that could be required for the

issue of an order based on subjective “satisfaction”.

His commendable words in the case of Puvaneswaran v Menteri Hal Ehwal

Dalam Negeri, Malaysia & Anor also now ring hollow (in the light of the

latest decisions) when he declared that:

There had been a consistent current of judicial opinion in our court, including the

latest decision of the Supreme Court, which indicate that when confronted with the

problem of interpreting powers of preventive detention, they have interpreted them

strictly so as to require that the provisions of the relevant statute are rigid and

meticulously complied with.

Malaysian Courts have always shown a great reluctance to impose any

objective standards for the exercise of the executive’s power to detain a person

without trial. The courts have repeatedly declared that ‘whether there is

reasonable cause to detain is a matter of opinion and policy which decision

can only be taken by the executive’22 and ‘so long as the Minister is satisfied

after considering all the information available to him, it is not for the court to

question how or why he became so satisfied.’23 The Malaysian courts have

also ruled that the ‘fairness of the Minister's decision is subjective’24 and that

the ‘subjective satisfaction of the Minister of Home Affairs is not subject to

judicial review.’25 The Malaysian Courts have further imposed restrains on

themselves by ruling that Courts ‘do not sit in appeal against the decision of

the Minister regarding the material on which the detention order was made’

and ‘do not examine the adequacy or truth of these materials and cannot

9

interfere with the decision on the ground that if the court had examined them it

would have come to a different conclusion’ as the Court ‘cannot arrogate to

itself the responsibility of judging the sufficiency or otherwise of the

grounds.’26

There have been moments in the recent judicial history of Malaysia, which

have given a glimmer of hope that at last there may be small footholds on the

slippery walls the a detenu has to scale when attempting to challenge a

detention order. For example Tan JC in Lim Say Hoe v Timbalan Menteri

Dalam Negeri, Malaysia & Anor27 said that ‘such powers are exercisable

strictly in accordance with procedure, and any detaining authority less than

meticulous with the procedure laid down will find the Court's displeasure.’

However on appeal in all cases, the Federal Court has snuffed out any hope of

the judiciary adopting a new and exciting approach. For fleeting moments, it

sometimes serves to revitalise the spirit of the Malaysian Constitution and the

protection (no matter how limited) it affords to a detenu. This is illustrated in

the case of Gurcharan Singh a/l Bachittar Singh @ Guru v Penguasa, Tempat

Tahanan Perlindungan Kamunting, Taiping & Ors28 where the High Court of

Malaya held that the extension order to detain the appellant was null and void.

The appellant had initially been detained under section 8(1) of the ISA for a

period of two years and that order was later extended for another two years.

The extension order was made under section 8(7) of the ISA. The section

reads:

10

The Minister may direct that the duration of any detention order or restriction order

be extended for such further period, not exceeding two years, as he may specify, and

thereafter for such further periods, not exceeding two years at a time, as he may

specify, either-

(a) on the same grounds as those on which the order was originally made;

(b) on grounds different from those on which the order was originally made; or

(c) partly on the same grounds and partly on different grounds;

Provided that if a detention order is extended on different grounds or partly on

different grounds the person to whom it relates shall have the same rights under

section 11 as if the order extended as aforesaid was a fresh order, and section 12(1)

shall apply accordingly.

The appellant argued that this section made it imperative for an extension

order to state the grounds of detention and as the grounds had not been stated

in the extension order he could not know whether he had a right to make any

representations under section 11 of the ISA. That, he contended, amounted to

a denial of his right and as such, the extension order should be declared null

and void. The respondents, on the other hand, argued that the extension order

was not a new order and merely an extension of the original detention order

and therefore the grounds stated in the original detention order should be

presumed to imply to the extension order. It was further argued that the

Minister only needed to state the grounds if they were different from those

stated in the original detention order.

NH Chan JCA in the Court of Appeal made no distinction between grounds

and reasons when he expressed the opinion that ‘under section 8(1) of the ISA

there are three grounds or reasons for which a person may be detained….’29

Malek Ahmad JCA, in his dissenting judgment disagreed with this view as he

11

stressed the point that ‘purposes’ and ‘grounds’ are two different things. The

purposes are as stated in section 8 (1) the Act but the grounds for detention

must be given in the statement in writing as provided for in sub-paragraph (1)

of section 11(2)(b) of the Act together with the allegations of fact and other

particulars as stated in sub-paragraphs (ii) and (iii) of that same paragraph. In

his judgment he ruled, ‘there is no need for the grounds to be identical with

any or all of the purposes of detention. The grounds supplied could be in

words totally different from the statement of the purposes of detention.’

His view he felt was further:

‘strengthened by the use of the word 'purposes' in subsection (5) of s.8 of the Act

which begins with 'If the Minister is satisfied that for any of the purposes mentioned

in subsection (1) ...' So when the words 'acting in any manner prejudicial to the

security of Malaysia' appear in both the detention order and the extension order, they

do not qualify as a ground for detention but only as a purpose for the detention.’

He also found support for this view in the words of the Federal Court

expressed in the case of Karam Singh v Menteri Hal Ehwal Dalam Negeri30

wherein the Federal Court inter alia said:

the words “with a view to preventing that person from acting in any manner

prejudicial to the security of Malaysia or any part thereof or to the maintenance of

public order or essential services therein” in s 8(1)(a) of the Internal Security Act do

not indicate the grounds for a person's detention; they indicate its purpose or

purposes. It is true that the grounds for a person's detention must be given, but

grounds are quite distinct from purposes.

12

Ahmad Fairuz Sheikh Abdul Halim FCJ delivering the judgment of the

Federal Court in this appeal agreed with the reasoning of Malek Ahmad JCA

that section 8(1) of the ISA ‘merely specifies the three purposes for detention’

and ‘the grounds must mean the grounds referred to in s.11 of the Act...’

On the issue of whether the grounds for detention must be stated in the

extension order, Mokhtar Sidin JCA, in his judgment, regrettably, was

prepared to allow presumptions to be made against the detenu, even in the

important matter of the personal liberties of the detenu, when he expressed the

view that ‘the normal and natural meaning of an extension order is an

extension of the initial order in entirety unless otherwise stated’.31 He also

went on to make the grounds stated in the original detention order applicable

to the extension order unless different grounds or partly different grounds are

stated in the extension order. He presumed in favour of the State and not the

detenu when he said that it cannot ‘be assumed that the extension order was on

different grounds or partly on different grounds.’ This is in sharp contrast to

an earlier finding made by Wan Yahaya SCJ (as he then was) in the Supreme

Court case of Ng Hong Choon v Timbalan Menteri Hal Ehwal Palam Neaeri

& anor32 when he said that laws which deprive the subjects of their rights to

personal liberty are subject to strict construction in the same way as are penal

laws and that it is a recognized principle of interpretation that laws which

encroach on the rights of the subject should be construed in conjunction with

laws which guarantee the subjects ‘fundamental rights to freedom and

whenever possible, to be so construed as to afford respect and recognition of

such right, that the power under the restrictive laws can only be exercised in

accordance with the procedure laid down by the law, and that in the event of

any failure to conform to such procedure, the court may construe it in favour

of the subjects liberty.’

13

a) Writ of Habeas Corpus

As stated earlier, a person can make representations against his detention if an

order of detention has been made against him/her by the Minister under

section 8(1) of the ISA but under section 73 however he has no such right.

Generally, the attitude of the Malaysian courts in respect of detention under

section 73 is that the courts have jurisdiction only in regards to any question

on compliance with any procedural requirements in the ISA and they seldom

grant any substantive rights to the detenu. When it comes to procedure, Lee

Hun Hoe CJ (Borneo), in the case of Re Datuk James Wong Kin Min33, in

delivering the judgment of the Federal Court observed that:

In a matter so fundamental and important as the liberty of the subject, strict

compliance with statutory requirements must be observed in depriving a person of his

liberty. The material provisions of the law authorising detention without trial must be

strictly construed and safeguards which the law deliberately provides for the

protection of any citizen must be liberally interpreted. Where the detention cannot be

held to be in accordance with the procedure established by the law, the detention is

bad and the person detained is entitled to be released forthwith. Where personal

liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to

avail himself of any technical defects which may invalidate the order which deprives

him of his liberty ... An inherent part of their (the courts’) function is to see that the

executive acts within the law and does not encroach unnecessarily into the realm of

liberty of the subject... If this constitutional guarantee of article 5(1) is to have any

real meaning at all, then it is imperative that the courts should intervene whenever the

liberty of the subject is encroached upon not in accordance with the law.

A historic step was taken in Nasharuddin bin Nasir v Kerajaan Malaysia &

Ors34 by the Shah Alam High Court judge Suriyadi Halim Omar in November

14

2001 when he ruled that there was no evidence to show that the Kumpulan

Militan/Mujahiddin Malaysia (KMM) suspect Nasharuddin Nasir detained

under the ISA was involved in any terrorist activities as alleged by the police

when they arrested him in April 2001. Suriyadi J observed that the onus to

prove mala fide on the part of the police still remains on the detainee and

Not only must he be a mind reader and speculate on the reasons of the rejection, but

must prove mala fide without help from them. With near nothing to start off, and

trapped within the confines of the inscrutable faces of his jailors, he might as well

throw in the towel. Thankfully, the only avenue still left unplugged is that there are

no inhibitive case laws or statutory provisions that restrict the manner of proving that

mala fide factor.

Suriyadi J found that the act of permitting to meet with his family but not his

lawyer was arbitrary and sufficiently showed mala fide. As Suriyadi J

observed:

The arbitrary attitude of the police permitting the family, but not his solicitors was

disconcerting to say the least. Surely in that circumstance, legal advice would have

been more imperative and beneficial to the detainee, rather than a social visit from his

family. Even though some temporary reprieve to his peace of mind could be attained

by the presence of his immediate family, surely permanent freedom would have been

uppermost in his mind at that stressful moment. I could not help but conclude that the

coldly calculative selection and motive of the police was already questionable at that

stage. By being deliberately discerning, the police had deprived him of prompt

professional advice at such a crucial moment bearing in mind that the incarceration of

a person not in accordance with law, however short must not be condoned.

15

Furthermore, if lawyers may impede or derail police investigations, why not his

relatives who may be more persuasive and troublesome? I failed to find any

presumption provisions, or arrive at some sensible conclusion that lawyers have a

higher propensity to be meddlesome, and a greater threat to the security of this

country at that stage of the police investigation.

When the matter was brought before the Federal Court on appeal, it again

disappointingly ruled that the detention under the ISA was valid and allowed

the government’s appeal against the release order. Steve Shim C.J. (Sabah and

Sarawak) simply and inadequately explained, ‘(w)here matters of national

security and public order are involved, the court should not intervene by way

of judicial review as these are matters especially within the preserve of the

executive.’

The Federal Court has correctly ruled in Abdul Razak Bin Baharudin and

Others v Ketua Polis Negara and Others35 that the restriction to review a

detention under section 8 of the ISA does not apply to a detention by a police

officer under section 73. The Federal Court accepted the view expressed in

Mohd Ezam that section 8 was not necessarily dependent on section 73(1) or

vice versa and were ‘inextricably connected’. The Federal Court made a

qualified acceptance of the ruling in Mohd Ezam that, in determining the

allegation of mala fide with regard to the arrest and detention under section

73(1), the objective test could be applied. The Federal Court however left the

right to also slam this door shut when it refused to categorically state whether

the objective test should be used. It reservedly concluded that it would like to

make it clear that:

16

in this judgment, we express no opinion whether this Court was right or wrong in

Mohamad Ezam in applying the objective test in respect of section 73. All we say is

that, even if that is the correct test, that is only applicable to section 73.36

In Ketua Polis Negara v Abdul Ghani Haroon37 the applicants were arrested

under section 73(1) of the ISA and the High Court at Shah Alam held that the

applicants had a constitutional right to be present at the hearing of their habeas

corpus application by virtue of Article 5(2) of the Malaysian Constitution.

The High Court ruled that it was implicit that the right to apply to the High

Court for a writ of habeas corpus was not merely a legal right but also a

constitutional right available to any person who believed that s/he had been

unlawfully detained. It followed that the right being a constitutional right, a

detainee had every right to be present in court at the hearing of his/her habeas

corpus application. The Federal Court again snuffed out any hope of such a

substantial right being granted when it ruled against the decision of the High

Court.

The Federal Court further tried to justify not according the writ of habeas

corpus the status of a constitutional right (as the Shah Alam High Court had

done) by making a confusing distinction when it said that ‘criminal

proceedings and preventive detention are not parallel proceedings. The object

of a criminal prosecution is to punish a person for an offence committed by

him, while a preventive detention is an anticipatory measure and may not

relate to an offence. Hence, the constitutional right to be present in habeas

corpus proceedings is a limited one and the applicants here were not facing

criminal charges.’ It is difficult to see the necessity for making such

statements.

17

Habeas corpus is the Latin phrase for ‘you have the body’.38 The writ was

originally known as habeas sub jiciendum and generally, the person to whom

the writ is directed must produce in open court the body of the party so

committed or restrained and must certify the true cause of imprisonment or

detention.39 Malaysian law has its origins in English law and it is interesting

to note that the English Habeas Corpus Act 1640 was initially passed to

counteract an executive order of detention. The Act provided that ‘any person

imprisoned by Order of the King or Council should have habeas corpus and be

brought before the court without delay with the cause of imprisonment

shown.’ A writ of habeas corpus is a judicial mandate to a prison official

ordering that an inmate be brought to the court so it can be determined whether

or not that person is imprisoned lawfully and whether or not s/he should be

released from custody. It has nothing to do with the kind of charges or

detention orders that the person is held under.

b) Right to Counsel

A case often quoted to deny a detenu legal counsel is Theresa Lim Chin Chin v

Inspector General of Police40 where Salleh Abas LP held that the question of

when a person arrested under section 73 of the ISA can be allowed to exercise

his/her right under Article 5(3) of the Constitution to consult legal counsel of

his/her choice ‘should be best left to the good judgment of the authority as

when such right might not interfere with police investigation.’

It is interesting to note the comment of one of the drafters of the original

version of the ISA, Professor Hickling who, when commenting on the case of

Theresa Lim said:

18

It is curious to find a court enlarging the provisions of the Act, the limits of the

authority of which are so carefully crafted and specified in a special article of the

Federal Constitution. After all, when a fact is open to two inferences, one in favour of

liberty and the other not, it is usual to adopt the former, not the latter.41

Suriyadi J in Nasharuddin’s case was not prepared to give away the power of

judicial review so easily when he ruled that ‘the right of legal representation

would be meaningless if a detainee were to be denied of professional

assistance caused by some overzealous but ill-informed administrator.’ Sadly

this is not the case in Malaysia. In Tee Yam @ Koo Tee Yam v Timbalan

Menteri, Menteri Keselamatan Dalam Negeri, Malaysia and Others,42 the

Federal Court has even accepted that denial of counsel is not a ground for the

granting of habeas corpus. In the same case the Court also ruled that, ‘the

signature of the Minister’s secretary on the allegations of fact does not reflect

on the non-application of the subjective mind. The signature of the secretary

instead of the Minster is not a procedural defect. The non-signature of the

Minister is not fatal, so long as the allegations of fact have been conveyed.’

Conclusion

It can be clearly seen that the mindset of the Malaysian judges has not changed

much in always endorsing all amendments passed by Parliament no matter

how arbitrary the law and what fundamental rights are being sacrificed to

facilitate the easy exercise of power by the executive. Such a mindset only

serves to reduce executive accountability and respect for human rights under

the rule of law. Compliance with constitutional law is not confined to

compliance with the written word of the Malaysian Constitution but also the

ideals on which the Constitution is based. Legislation incompatible with those

19

ideals should be struck down. In such situations the courts should bring

themselves to act in a supervisory role rather than the conservative role they

have adopted for so long. Judges should be able to apply a heightened

standard of judicial review and be involved in the genuine examination of the

process and merits of any detention order and not be reduced to a rubber-

stamping role as envisaged by the recent amendments to the ISA. But the

slamming of doors on the rights of a detenu continues unabated as the courts

continually concentrate on giving effect to the laws made by Parliament rather

than question if Parliament had the power to make such constitutional

amendments that allow arbitrary laws which suppress human rights with the

stroke of a pen.

The concept of natural justice is not unknown especially in constitutional law.

In many countries in the world the area of its applicability continues to expand

with time. When the law in question is silent or ambiguous there is nothing to

prohibit the courts from applying the principles of natural justice. In fact, even

if the law has been clearly spelt out by a parliament, the courts would still be

justified in striking it down if it violates basic principles of natural justice that

the civilised world has come to accept as entrenched rights. Where the

executive or administration has failed to observe natural justice, then

deprivation of personal liberty may be characterised as being not ‘in

accordance with the law’ and any person detained should be given relief.

There is no bar in the way of the court to reading natural justice into the terms

of the law and acting accordingly.43 Malaysian courts have largely ignored the

concept in the interpretation of preventive detention laws and will either rue

that fact or will have to start being innovative and use it to break the almost

choking stranglehold the executive has on the rights of a detenu. At present

20

the executive tramples these rights with impunity and marches on relentlessly

obliterating the remaining rights.

Constitutional interpretation requires a higher vision and the words of Lord

Denning urge a judge undertaking such a task not to be a mere mechanic for

s/he must also be an architect as it is on his/her work that civilised society

depends.44 As he further says: “(s)omeone has to be trusted. Let it be the

judges.”45 Sadly, the Malaysian courts have all too often surrendered the

powers of judicial review all too feebly.

It is remarkable to note that in a country such as Sri Lanka that has

experienced much violence and blatant acts of terrorism the judiciary has

nevertheless remained vigilant of the basic constitutional rights of its

citizens.46

Are the strong winds of change about to blow in Malaysia? In an article,

Gopal Ram (a judge of the Court of Appeal in Malaysia), contends that:

There is therefore ample scope for our courts to rely on international law principles

and documents to develop our human rights law. The principal document which may

be used for this purpose is the Universal Declaration of Human Rights 1948. This is

because Parliament, through the Human Rights Commission of Malaysia Act 1999

says [in section 4(4)] that “regard shall be had to the Universal Declaration of Human

Rights 1948 to the extent that it is not inconsistent with the Federal Constitution”. Be

it noted that Act says “regard shall be had” and not “regard may be had”. A similar

phrase “shall have regard” is common place in statutes and has been consistently

interpreted both here and elsewhere as imposing an obligation. The language of the

Act – which is substantive and not procedural law – is therefore prima facie

mandatory and not merely directory. The “non-inconsistency” requirement in section

4(4) is easily met because, when prismatically interpreted, the Part II liberties are

entirely consistent with the terms of the 1948 Declaration. Whether the approach that

21

has found acceptance in other Commonwealth countries will be adopted here is a

matter that must await testing in some future case.’47

It is an approach that has been passed over even when the opportunity was

there in the past and it remains to be seen when the Malaysian courts will

ever seize that opportunity. Outdated and controversial case law can and is

sometimes superseded by laws made by Parliament. Parliament has the

power to make such laws. However the courts do have the ultimate power

to decide on the legality of any law enacted by the Parliament and in that

way still act as a check on any arbitrary exercise of legislative power by

Parliament. The courts can still ultimately check the arbitrary exercise of

power by the executive. The only question is whether there is the will to do

so.

Hardial Singh Khaira LL.B (Hons)(Univ. Malaya); LL.M (Univ. W. Australia)

Honorary Research Fellow (Law)

Murdoch University

Western Australia

I

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1 Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy,

http://web.amnesty.org/library/index/ENGASA280061999 2 Review of the Internal Security Act 1960, 2003, at p.x. http://www.suhakam.org.my

3 See the USA Patriot Act

4 For example the Australian Anti-Terrorism Act 2005

IV

5 See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p.70 of the Report. Emphasis added

here.

6 See Karam Singh v Menteri Hal Ehwal Dalam Negeri (1969) 2 MLJ 129

7 (2002) 3 AMR 2817

8 (2003) 6 AMR 497

9 Supra, at p.147

10 [1976] 1 LNS 126; [1976] 1 LNS 133; [1977] 1 LNS 107; [1977] 1 LNS 110; [1977] 2 MLJ 108 at p.114

11 [1975] 1 LNS 90; (1977) 2 MLJ 187 at p 188

12 Emphasis added.

13 (2003) 6 AMR 497 at page 506.

14 Tinsa Maw Naing v The Commissioner of Police, Rangoon Supreme Court (1950) Burma Law Report 17.

15 Emphasis added.

16 Lawrence Jaochima Joseph D’Souza v State of Bombay, A.I.R. 1956 S.C. 531

17 [2001] 4 CLJ 737; 2002-5 MLJ 22; 2001 MLJ LEXIS 393 at p.29H-30B.

18 Emphasis added.

19 2005 MLJU LEXIS 239; [2005] 388 MLJU 1

20 (2002) 4 CLJ 309

21 (1984) 1 MLJ 67

22 See for example Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia (1969) 2 MLJ 129

23 Menteri Hal Ehwal Dalam Negeri Malaysia & Ors v Chua Teck (1990) [1990] 1 CLJ 178 (Rep); [1990] 1 CLJ 220 (1990); 1 MLJ 104.

24 Theresa Lim Chin Chin & ors v IGP [1988] 1 LNS 132; (1988) 1 MLJ 293

25 Minister for Home Affairs Malaysia & Anor v Karpal Singh [1988] 1 CLJ 632 (Rep); [1988] 1 CLJ 197; (1988) 3 MLJ 29.

26 See Wong Fook Nyen v Timbalan Menteri Dalam Negeri Malaysia & 2 Ors [1988] 2 CLJ 543 (Rep); [1988] 2 CLJ 274; (1988) 2 CLJ 274 and Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia (1975) 2 MLJ 279].

27 1995 MLJU LEXIS 1023; [1995] 478 MLJU 1; [1995] 2 CLJ 825

28 [2002] 4 CLJ 249; 2002-4 MLJ 255; 2002 MLJ LEXIS 475

29 Emphasis added

30 Supra, at p.147

31 Emphasis added.

32 1994 3 MLJ 285 at p.294

33 [1976] 2 MLJ 245

34 [2004] 1 CLJ 81; 2002-6 MLJ 65; 2002 MLJ LEXIS 262,

V

35 2005 MLJU LEXIS 239; [2005] 388 MLJU 1

36 Emphasis added

37 [2001] 2 CLJ 574; 2001-4 MLJ 11; 2001 MLJ LEXIS 283

38 http://www.lectlaw.com/def/h001.htm

39 Halsbury, Laws of England, Vol. XI, at p.28.

40 [1988] 1 MLJ 293

41 Wu & Hickling, Hickling’s Malaysian Public Law, Pearson, PJ, 2003, at p 161.

42 2005 MLJU LEXIS 71; [2005] 236 MLJU 1

43 AK Gopalan v State of Madras (supra)

44 Foreword to Dhavan, The Supreme Court of India, 1977.

45 What Next in the Law, Butterworths, 1982, at p.330

46 See Udagama, Taming of the Beast: Judicial Responses to State Violence in Sri Lanka, Spring 1998, 11 Harvard Human Rights Journal 269.

47 Dato' Gopal Sri Ram, Human Rights: Incorporating International Law into the Present System, http://www.mlj.com.my/free/articles/gopalsriram.htm,